USA – OH – CIOTOLA – 1997 (Return ordered) CIOTOLA v FIOCCA The mother took the child to Ohio, USA for a visit (their third). The mother did not return the child to Italy as the father thought she would. The father applies for the child’s return under the Hague treaty. The Magistrate determined that the habitual residence was Italy and that the father was exercising his custodial rights at the time removal and retention. The magistrate also found that there was no risk to the child to be returned to Italy. The mother appeals, the appeals court rejects the appeal and the child is ordered returned to Italy.
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Ciotola v Fiocca (Ohio Com.Pl. 1997)86 Ohio.Misc.2d 24 (684 N.E.2d 763)
12 International Abduction [USA 1997]
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No. 96DR-06-2645 DRC
Court of Common Pleas of Ohio, Franklin County, Domestic
Relations Division
12 Mar 1997
For the Plaintiff: Robert A. Bracco
Attorney At Law
3262 Henderson Rd
Columbus, OH 43220-2377
TEL: (614) 442-1953
Gary J. Gottfried
Attorney At Law
1265 Neil Ave
Columbus, OH 43201-3119
TEL: (614) 297-1211
For the Defendant: Albert F. Dalena
Attorney At Law
Columbus, OH
Colleen Briscoe
Attorney At Law
7582 S Goodrich Sq
New Albany, OH 43054-8932
TEL: (614) 855-2454
Judge: Hon. Susan Brown
001 (* page 765) This matter is before the court upon
consideration of the following: (1) plaintiff’s objections,
filed December 20, 1996, to the decision of the magistrate
dated December 11, 1996; (2) defendant’s brief in opposition
to plaintiff’s objections, filed February 21, 1997; (3)
plaintiff’s reply to the defendant’s brief in support of the
magistrate’s order, filed February 28, 1997; (4) plaintiff’s
motion to allow additional evidence/testimony, filed January
24, (* page 766) 1997; and (5) defendant’s memorandum
opposing plaintiffs motion for additional evidence, filed
February 12, 1997. The magistrate heard this matter
initially upon defendant’s petition for return of Miriam
Fiocca, the minor child, pursuant to the Hague Convention on
the Civil Aspects of International Child Abduction (“Hague
Convention”) and the International Child Abduction Remedies
Act (“ICARA”), Section 11603(b), Title 42, U.S.Code. Based
upon the evidence presented at trial, the magistrate found
that the child’s habitual residence prior to her removal and
retention in the United States was Italy and that defendant
was lawfully exercising his custody rights over the child
prior to her removal and retention. The magistrate further
found that plaintiff had failed to establish that returning
the child to Italy would expose her to physical or
psychological harm. Accordingly, the magistrate concluded
that the Miriam Fiocca should be promptly returned to
defendant in the Italian Republic pursuant to the provisions
of the Hague Convention.
002 Plaintiff objected to the decision of the magistrate
on December 20, 1996, arguing, in essence, that (1) the
magistrate applied the wrong legal standard when determining
that the child had one habitual residence; (2) the
magistrate erred when determining that Italy was the
habitual residence of the minor child; (3) the magistrate
erred in finding that defendant had not acquiesced in
plaintiffs and the child’s remaining in the United States;
(4) the magistrate erred in finding that returning the.
child to Italy would not pose a grave psychological harm to
the child; (5) the magistrate’s failure to apply the best
interests test when determining whether to return the child
to Italy violated the child’s due process and equal
protection rights as guaranteed by the United States and
Ohio Constitutions; (6) the magistrate failed to consider
the impossibility of performance when ordering that the
child return to Italy, which may subject the plaintiff to
criminal sanctions; (7) the magistrate erred by ordering the
child returned to the defendant rather than to her country
of habitual residence under the convention terms; (8) the
magistrate, erred in that returning,the child to Italy would
violate the fundamental principles relating to guarantees of
freedom under Ohio law; (9) the magistrate erred in
determining that service of the petition was proper and that
proceeding to trial violated plaintiff s due process rights
as guaranteed by the United States and Ohio Constitutions;
and (10) the magistrate’s decision is against the manifest
weight of the evidence.
003 On December 23, 1996 and February 12, 1997, plaintiff
filed supplemental objections and a legal brief in support
of her objections, respectively. An examination of these
documents reveals that plaintiff submitted arguments in
support of the original objections, as well as additional
arguments challenging the constitutionality of specific
provisions of the Hague Treaty. Pursuant to Civ.R. 53(E),
objections to a magistrate’s decision shall be filed within
fourteen days of the filing of the decision and shall state
with particularity the grounds of objection. Nevertheless, a
trial court may, in its discretion, consider additional
evidence and objections that were filed out of time. Conroy
v. Conroy (Aug. 12, 1993), Franklin App. No. 93AP-27,
unreported, 1993 WL 310421; Eitel v. Eitel (Aug. 30, 1994),
Franklin App. No. 93APF12-1745, unreported, 1994 WL 479450.
004 Plaintiff, an American citizen, was married to
defendant, a citizen of Italy, on September 4, 1994, in the
town of Pescocostanzo, province of L’Aquila, Italy. After
their marriage, the parties resided in Castel di Sangro,
province of L’Aquila, Italy, in a condominium owned by
plaintiffs mother. Plaintiff’s grandmother and aunt also
resided in the condominium building. On February 9, 1995,
plaintiff filed a certificate of residence with the town of
Castel di Sangro, which entitled her to all the benefits of
an Italian citizen. On February 28, 1995, the parties’ only
child, Miriam Nevina Fiocca, was born. Sometime thereafter,
the parties filed a “State of the Family” certificate with
the town of Castel di Sangro, which verified where the
family resided and may, have enabled them to receive public
assistance, if they qualified.
005 On April 18, 1995, plaintiff and Miriam came to Ohio
for approximately six weeks, in order to visit with
plaintiffs relatives. On November 18, 1995, plaintiff and
the minor (* page 767) child returned to Ohio to visit
relatives and remained in the United States for one month.
On June 6, 1996, plaintiff and Miriam came to Ohio for the
third time in order to attend her brother’s wedding. ,
Defendant had a plane ticket and was to meet plaintiff and
the child in Ohio on June 26, 1996, and the parties were
scheduled to return to Italy on July 8, 1996. On June 20,
1996, plaintiff called defendant and requested that he not
come to Ohio for the wedding. Although defendant agreed to
forgo the trip, he believed that plaintiff and Miriam would
return to Italy on July 8, 1996. On July 3, 1996, defendant
received papers regarding this legal separation action. Upon
receiving the complaint and summons to appear, defendant
attempted to contact plaintiff; however, she was unavailable
to take the telephone call. Sometime thereafter, defendant
had contact with plaintiff and inquired about the legal
documents and accused her of kidnapping Miriam. It was not
until July 3, 1996 that defendant first suspected that
plaintiff and Miriam might not return to Italy.
006 Plaintiff’s first and second objections will be
addressed together as they each relate to the habitual
residence of the child. As indicated by the magistrate, the
Hague Convention does not define the term “habitual
residence.” The drafters intended this omission in order to
keep the concept fluid and fact-based, without becoming
rigid with technical rules and presumptions. Levesque v.
Levesque (D.Kan. 1993) 816 F.Supp. 662, 665; In re
Application of Ponath (D.Utah 1993) 829 F.Supp. 363, 366.
Upon review of the relevant case law, it is clear that when
determining habitual residence for purposes of the
convention, a trial court must ascertain whether the child
has been physically present in any particular place for a
sufficient length of time in order to gain a sense of
acclimation and have a degree of settled purpose. Feder v.
Evans-Feder (C.A.3, 1995), 63 F.3d 217. Since this
determination becomes particularly difficult when the focus
is on a child of tender years, a court should also consider
the “overtly stated intentions and agreements of the
parents” during the period preceding the wrongful abduction
or retention. Id. at 223, citing In re Bates (1989), No. CA
122-89,.High Court of Justice, Family Div. Ct. Royal Courts
of Justice, United Kingdom. Once established, the child’s
habitual residence can be altered only by a change in,
geography prior to the questioned removal or retention, or
by passage of time, not by changes in parental affection and
responsibility. Friedrich v. Friedrich (CA.6, 1993), 9&3
F.2d 1396 at 1401-1402.
007 Plaintiff argues that the magistrate erred in finding
that a person can have only one habitual residence.
Plaintiff maintains that prior to defendant’s Hague.
Convention petition, Miriam had spent six months of her
nineteen-month life in Ohio; thus, she, contends that Ohio
should be considered, the child’s habitual residence. When
addressing the issue of habitual residence, the U.S. Court
of Appeals for the Sixth Circuit in Friedrich stated:
008 “A person can only have one habitual residence. On its
face, habitual residence pertains to customary residence
prior to the removal. The court must look back in time, not
forward.” Id. at 1401.
009 Further, in Rydder v. Rydder (C.A.8, 1995), 49 F.3d
369, 373, the U.S. Court of Appeals for the Eighth Circuit
indicated that “there is no real distinction between
habitual and ordinary residence.”
010 In the instant action, defendant did not file the
Hague Convention petition until September 23, 1996; however,
he accused plaintiff of kidnapping Miriam on or about June
3, 1996. While Miriam may have spent a total of six months
of her life in Ohio, she had never been in the United States
longer than six weeks at any one time without a scheduled
return to Italy or defendant demanding her return. Upon
considering the “overtly stated intentions and agreements”
between plaintiff and defendant prior to the alleged
wrongful retention, it is clear that the parties (1) wed in
Italy, (2) registered plaintiff as a resident of Castel di
Sangro, (3) had their only child, Miriam, while in Italy,
(4) registered as a family residing in Castel di Sangro, (5)
made attempts to buy a home, in Castel di Sangro, and (6)
were scheduled to return to Italy as a family on July 8,
1996.
011 (* page 768) Although plaintiff testified that the
parties had discussed the idea that she keep a residence in
the United States in case “things didn’t work out” between
them, these discussions are irrelevant, as they did not
include the residency of a child born of the marriage. But
for plaintiffs change of heart regarding the parties’
marital status, the court finds that she and Miriam would
have returned to Italy on July, 8, 1996 as originally
planned. In applying the relevant case law, this court finds
that the magistrate properly concluded that Miriam’s single
place of habitual residence prior to her retention in the
United States was Castel di Sangro, Italy. Further,
Miriam’s occasional visits to Ohio did not alter her
habitual residence in Italy. Accordingly, plaintiffs first
and second objections are overruled.
012 Next, plaintiff argues that the magistrate erred in
finding that defendant had not acquiesced in plaintiffs and
Miriam’s remaining in the United States. Initially,
plaintiff suggests that the magistrate applied the wrong
legal standard in that she classified this case as a
wrongful removal rather than a wrongful retention. Plaintiff
argues that the magistrate erroneously found that she
wrongfully removed Miriam from Italy. Pursuant to the Hague
Convention, “wrongful removal” refers to the taking of a
child from the person who was actually exercising custody of
the child, whereas “wrongful retention” refers to the act of
keeping the child without consent of the person who was
actually exercising custody. See JICAC: Text and Legal
Analysis found at Pub.Notice 957, 51 Fed.Reg. 10494, 10503.
A review of the decision, however, reveals that the
magistrate considered both the wrongful removal and wrongful
retention provisions of the convention and concluded that
“Miriam was wrongfully retained in Ohio” by plaintiff.
Further, defendant consistently emphasized that plaintiff
and Miriam left Italy with his consent but that plaintiff
wrongfully retained the minor child in Ohio. Therefore, the
magistrate employed the proper analysis.
013 With regard to defendant’s alleged acquiescence,
plaintiff spoke with defendant on June 20, 1996, and told
him not to come to the United States as the parties had
originally planned. At this point, the facts become
somewhat unclear. Plaintiff testified that she told
defendant she needed time to think about their marriage,
Plaintiff indicated that defendant agreed to give her space,
and that as a result of the conversation, he understood that
her return date was unknown. Defendant, however, testified
that he was simply told not to come to Ohio due to his bad
relationship with his mother in-law. Defendant maintains
that be was unaware of plaintiff’s intentions of remaining
in the United States until he received the legal documents
on July 2, 1966. On or about July 3, 1996, defendant spoke
with plaintiff and inquired into visitation time with
Miriam. When plaintiff insinuated that she would not, be
returning to Italy in the immediate future, defendant
immediately accused h6r of kidnapping their daughter.
Thereafter, defendant testified that plaintiff was
“unavailable” when he attempted to call her in Ohio. On June
26, 1996, counsel for defendant sent a letter to plaintiff
and her attorney regarding defendant’s intention to have
Miriam ordered back to Italy by way of the Hague Convention.
Despite these actions, plaintiff maintains that she was
unaware that defendant wanted Miriam back in Italy until
September 27, 1996, when her attorney called regarding the
hearing on the instant petition. Upon consideration of the
evidence, however, it is clear that defendant did not
acquiesce in plaintiff’s unilateral decision to retain
Miriam in the United States once he realize] her intentions
of remaining in Ohio. Accordingly, plaintiffs third
objection is without merit and is hereby overruled.
014 In her fourth objection, plaintiff argues that the
magistrate erred in finding that returning the child to
Italy would not pose grave psychological harm to the minor
child. Pursuant to Article 13(b) of the convention,
children who are wrongfully removed or retained shall be
promptly returned unless it can be established by clear and
convincing evidence that “there is a grave risk that his or
her return would expose the child to physical or
psychological harm or otherwise place the child in air
intolerable situation.” It is well established that the
exceptions under the convention are to be restrictively
inter- (* page 769) preted and applied. Friedrich v.
Friedrich (C.A.6, 1996), 78 F.3d 1060; Caro v. Sher
(Ch.Div.1996), 296 N.J.Super. 594, 687 A.2d 354. In
Friedrich, the court clarified that a child would be
subjected to a “grave risk of harm” for purposes of the
convention if (1) the child was put in imminent danger prior
to the resolution of the custody dispute or (2) the child
experienced serious abuse, neglect, or extraordinary
emotional dependence, and the court of the country of
habitual residence was incapable of giving, or unwilling to
give, the child adequate protection.
015 Plaintiff testified that defendant has an explosive
temper and indicated that she bad been a victim of domestic
violence during the marriage. The facts surrounding the
incidents of alleged abuse are seriously contested.
Nevertheless, plaintiff neither reported any situations of
abuse to the local authorities nor sought medical attention
as a result of domestic violence. A social report was made
concerning defendant and his extended family in Castel di
Sangro. The report concluded that neither defendant nor
anyone in the Fiocca family presented any significant
problems that might prove detrimental or even harmful to the
normal physical and psychological development of the minor
child. Plaintiff, however, argues that it would be
detrimental to a child of tender years, like Miriam, to be
removed from her primary caretaker. Dr. Lowenstein, a
licensed psychologist, testified that separating a child of
nineteen months from its primary caregiver could pose both
an emotional and developmental risk of harm to the child.
However, Dr. Lowenstein had not evaluated any of the parties
in this action, and his testimony was elicited entirely by
way of hypothetical fact patterns. Based upon the record,
the court finds that the evidence presented at trial does
not establish any serious risk that either defendant or
anyone associated with him would jeopardize Miriam’s welfare
or place the child in grave risk of physical or
psychological harm. Accordingly, plaintiffs fourth
objection is without merit and is hereby overruled.
016 Plaintiffs fifth and eighth objection will be
addressed together, as each relates to the child’s
fundamental freedoms and rights to due process and equal
protection as guaranteed by the United States and
Ohio,Constitutions. Plaintiff argues that the magistrate’s
failure to apply the “best interests” test to the instant
action violated Miriam’s constitutional rights to due
process and equal protection, thereby violating the child’s
fundamental freedoms. Plaintiff also argues that Article 12
of the Hague Convention is unconstitutional on its face, in
that it creates an arbitrary classification for children in
the examination of habitual residency.
017 The United States, convinced that the interests of
children are of paramount importance in matters relating to
their custody, became a party to the Hague Convention on
April 29,1988 and codified the ICARA as the implementing
legislation in Sections 11601–11610, Title 42, U.S.Code.
The intent of the Convention is to “protect children
internationally from the harmful effects of their wrongful
removal or retention and to establish procedures to ensure
their prompt return to the State of their habitual
residence, as well as, to secure protection for rights of
access.” Hague Convention, Preamble. In passing the ICARA,
Congress declared that “[tlhe convention and this chapter
empower courts in the United States to determine only rights
under the Convention and not the merits of any underlying
custody claims.” (Emphasis added.) Section 11601(b)(4),
Title 42, U.S.Code; Hague at Article 16. It has been held
that when determining a petition under the Hague Convention,
a trial court should not intrude upon a foreign tribunal’s
subject matter jurisdiction by addressing such issues as
psychological profiles, detailed evaluations of parental
fitness, evidence concerning lifestyles, and the nature and
quality of relationships. Tahan v. Duquette (App.Div.1992),
259 N.J.Super, 328, 613 A-2d 486. Further, the Superior
Court of New Jersey in Loos v. Manuel (Ch.Div. 1994), 278
NJSuper, 607, 651 A.2d 1077, stated that “in proceedings
under the Convention, the court’s role is not to make
traditional custody decisions. It is to determine in what
jurisdiction the child should be physically located, so that
the proper jurisdiction can make custody decisions.” See,
also, Caro, supra. Plaintiff argues, however, that the
ICARA directs a trial court to con- (* page 770) sider the
best interests of a child when determining jurisdiction
under the provisional remedies, section of Section 11604,
Title 42, U.S.Code. Upon considering the purpose of the
Hague Convention and the ICARA, as well as reviewing the
relevant case law, this court finds that an examination of
the best interests of a child under traditional Ohio laws
when determining habitual residency under a Hague Convention
petition would violate the aim and spirit of the convention.
018 With regard to plaintiffs equal protection argument,
the constitutional effect of a classification based upon the
residency of a child prior to the commencement of a petition
in relation to Article 12 of the Hague Convention presents a
federal question, which would be more properly entertained
in a federal forum. Nevertheless, plaintiffs fifth and,
eighth objections are without merit and are hereby
overruled.
019 As to the sixth objection, plaintiff argues that the
magistrate erred by failing to consider that ordering that
the child return to Italy might subject plaintiff to
criminal sanctions. The possibility of criminal sanctions
against an individual who wrongfully removed or retained a
child is not a defense under the Hague Convention. Further,
the minor child may be returned to Italy without plaintiff
also going to Italy. The record reveals that defendant
testified that he would drop all criminal charges against
plaintiff if she and Miriam returned to Italy. At the
hearing on plaintiff’s objections, counsel for defendant
represented that there would be no pursuit of criminal
remedies if plaintiff were to return to Italy. Plaintiff’s
sixth objection is without merit and is hereby overruled.
020 In plaintiff’s seventh objection, she argues that the
magistrate erroneously ordered Miriam returned to defendant,
rather than to her country of habitual residence as provided
in the Convention. An examination of the treaty reveals
that the convention provides solely for the “return of the
child.” Article 6(f); Article 8; Article 12. The
determination of which parent will be awarded temporary
custody during the pendency of any custody action is to be
determined by the court of the country of habitual
residence. Tyszka v. Tyszka (1993), 200 Mich. App. 231, 503
N.W.2d 726. Accordingly, plaintiffs seventh objection is
well taken. The magistrate’s decision is modified to order
that Miriam be returned to, Castel di Sangro, province of
L’Aquila, Italy.
021 With regard to the ninth objection, plaintiff argues
that the magistrate erroneously found that service of
defendant’s Hague Convention petition was proper. In
proceeding to trial, plaintiff argues that the magistrate
violated her due process rights as guaranteed by the United
States and Ohio Constitutions. The convention itself does
not specify notice requirement; however, Section 11603(c),
Title 42, U.S.Code provides that “notice of an action
brought under sub section (b) of this section shall be given
in accordance with the applicable law governing notice in
interstate child custody proceedings.” Section 4 of the
Uniform Child Custody Jurisdiction Act (“UCCJA”) and Part
(e) of the Parental Kidnapping Prevention Act (“PKPA”)
provide that reasonable notice and opportunity to be heard
must be given to all parties before a custody determination
is made. See Section 1738A, Title 28, U.S.Code; Brooke v.
Willis (S.D.N.Y 1995), 907 F.Supp. 57. Section 5 of the
UCCJA also provides that notice “shall be given in a manner
reasonably calculated to give actual notice.” Id. Pursuant
to R.C. 3109.21 et seq., Ohio’s version of the UCCJA, notice
of a parenting proceeding shall be served, mailed,
delivered, or last published at least twenty days before any
hearing in this state. R.C. 3109.23(C).
022 Plaintiff argues that she did not receive mail service
of defendant’s petition until September 30, 1996, three days
prior to the magistrate’s hearing. However, the record
reveals that as early as June 26, 1996, plaintiff was
informed by defense counsel that a petition under the Hague
Convention would be filed. Counsel for both parties had
correspondence regarding the immediate petition throughout
July 1996. Based upon the record, plaintiff had constructive
notice of defendant’s impending Hague Convention petition.
More important, plaintiff has not established that she was
prejudiced by the magistrate’s (* page 771) failure to grant
a continuance. Upon consideration of the notice
requirements under the Hague Convention, the ICARA, the
UCCJA, and the PKPA, this court finds that plaintiff
received proper notice and service of defendant’s Hague
Convention petition and had an opportunity to present a
defense. Plaintiffs ninth objection is without merit and is
hereby overruled.
023 In plaintiffs tenth objection, she argues that the
decision of the magistrate is against the manifest weight of
the evidence. It is well established that decisions
supported by competent, credible evidence going to all
essential elements of an action shall not be reversed as
being against the manifest weight of the evidence. C.E.
Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 8
O.O.3d 261, 376 N.E.2d 578; Flynn v. Flyn (1984), 15 Ohio
App.2d 24, 15 OBR 57, 472 N.E.2d 388. Further, the
magistrate, as the trier of fact, is in the best position to
weigh the evidence presented, assess the credibility of the
witnesses, and make an informed factual determination
therefrom. Seasons Coal Co. v. Cleveland (1984), 10 Ohio
St.3d 77, 10 OBR 408, 461 N.E.2d 1273. Based upon the
record, it is clear that defendant established by a
preponderance of the evidence that the child’s place of
habitual residence prior to the wrongful retention was
Castel di Sangro, Italy, that defendant was lawfully
exercising his custody rights over Miriam prior to the time
of her retention in the United States, and that plaintiff
wrongfully retained the child in Ohio, within the meaning of
the convention. Plaintiff, however, presented insufficient
evidence to establish that the child would be exposed to
grave physical or psychological harm if returned to Italy,
or any of tile other exceptions provided in Article 13.
Accordingly, the decision of the magistrate is supported by
the manifest weight of the evidence. Plaintiffs tenth
objection is without merit and is hereby overruled.
024 Accordingly, defendant’s objections to the decision of
the magistrate are overruled. The minor child, Miriam Nevina
Fiocca, shall he immediately returned to Italy pursuant to
the Hague Convention on the Civil Aspects of International
Child Abduction. Plaintiff’s motion regarding the
presentation of additional evidence is hereby overruled.
Upon consideration of this decision, plaintiffs motion
regarding the appointment of a guardian ad litem is moot and
is hereby dismissed.
So ordered.