13‐2025‐cv(L)
Ermini v. Vittori
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2013
(Argued: April 9, 2014 Decided: July 8, 2014)
Docket Nos. 13‐2025‐cv(L), 13‐2199 (XAP)
EMILIANO ERMINI
Petitioner‐Appellant‐Cross‐Appellee,
– v. –
VIVIANA VITTORI
Respondent‐Appellee‐Cross‐Appellant.1
1 The Clerk of Court is directed to amend the caption in this case to
conform to the listing of the parties above.
1
Before: CALABRESI, CABRANES, and LIVINGSTON, Circuit Judges.
Emiliano Ermini, an Italian citizen, petitioned the district court
(Swain, Judge) pursuant to the Hague Convention on the Civil Aspects of
International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11, 670, 1343
U.N.T.S. 89, reprinted in 51 Fed. Reg. 10494 (Mar. 26, 1986) (the “Hague
Convention” or the “Convention”), as implemented in the United States by
the International Child Abduction Remedies Act, 42 U.S.C. § 11601‐10,
seeking the return of his two sons to Italy, from their mother Viviana
Vittori, in the United States. The district court held that return would pose
a “grave risk” of harm, pursuant to Article 13(b) of the Convention, to one
of the sons, who has severe autism, and that separating the siblings would
pose a grave risk of harm to both of them. It therefore denied appellant’s
petition as to both children. Confronting various issues of first impression
in this Circuit, we affirm the district court’s decision to deny the petition.
We also amend the judgment to deny the petition with prejudice.
ROCCO LAMURA, Tosolini Lamura Rasile
& Toniutti LLP, New York, New York, for
Petitioner‐Appellant‐Cross‐Appellee.
2
SANKET J. BULSARA (Jacob Press, Tamar
Kaplan‐Marans, Maria Banda, Jing‐Li Yu,
Musetta Durkee, on the brief), Wilmer Cutler
Pickering Hale and Dorr LLP, New York,
New York, for Respondent‐Appellee‐Cross‐
Appellant.
Gary S. Mayerson, Tracey S. Walsh, Maria
C. McGinley, Mayerson & Associates, New
York, New York, for Amicus Curiae Autism
Speaks.
Jeremy T. Adler, Davis Polk & Wardwell
LLP, New York, New York, for Amicus
Curiae Travis Thompson, Ph.D. and Paolo
Moderato, Ph.D.
Anthony S. Barkow, Elizabeth A.
Edmondson, Eddie A. Jauregui, Jenner &
Block LLP, New York, New York, for
Amicus Curiae Jacqueline Sands.
Gregory J. Wallance, W. Stewart Wallace,
Susanna Y. Chu, Kaye Scholer LLP, New
York, New York, for Amicus Curiae
Professor Elizabeth Lightfoot, Sanctuary for
Families, and Child Justice, Inc.
Robert H. Smit, Simpson Thacher & Bartlett
LLP, New York, New York, for Amicus
Curiae Domestic Violence Legal
Empowerment and Appeals Project, The
Family Violence Appellate Project, and
Professors Shani M. King and Lisa V.
Martin.
3
CALABRESI, Circuit Judge:
This case presents us with novel, and significant, issues under the
Hague Convention on the Civil Aspects of International Child Abduction,
Oct. 25, 1980, T.I.A.S. No. 11, 670, 1343 U.N.T.S. 89, reprinted in 51 Fed. Reg.
10494 (Mar. 26, 1986) (the “Hague Convention” or the “Convention”), as
implemented in the United States by the International Child Abduction
Remedies Act, 42 U.S.C. § 11601‐10. While the Convention is designed, in
part, to ensure the prompt return of children wrongfully removed or
retained from their country of habitual residence by one parent, it also
protects children who, though so removed or retained, face a real and
grave risk of harm upon return. Here, we are confronted with forms of
psychological and physical harm arising from separating a child from
autism therapy. The question of whether the risk of such harms is
sufficiently grave to trigger the Convention’s exceptions has not been
previously considered by our Court. We today hold that such risk can be
sufficiently grave, and, on the facts found by the district court, that in this
case it is. For this reason, and another, we affirm the district court’s denial
of the appellant’s petition.
4
We also face, as a matter of first impression, the district court’s
decision to deny the petition without prejudice to renewal. We hold that
this was error, and amend the judgment to deny the petition with
prejudice.2
I.
Emiliano Ermini and Viviana Vittori are Italian citizens. They began
living together in Italy in 2001, and were married in 2011. The couple had
two children: Emanuele, who is 10, and Daniele, who is 9. Daniele is
autistic. In the midst of a custody dispute, Ermini petitioned the district
court pursuant to the Hague Convention, a multilateral treaty to which the
United States and Italy are signatories, seeking the return to Italy of his
two sons, who were then, and today remain, in the United States.
2 Several motions are pending before the Court. Vittori moves for the
Court to take judicial notice of documentation regarding changes in her,
and her children’s, immigration status. Ermini moves for the Court to take
judicial notice of a foreign court decision from Velletri, Italy, dated April
23, 2013. Pursuant to Federal Rule of Evidence, sections 201(b)(2), (c)(2),
and (d), we grant both motions. In addition, several parties, all listed above
as amicus curiae, had moved for leave to file their briefs. Pursuant to
Federal Rule of Appellate Procedure 29(b), we grant their motions, and
hence have listed them above.
5
Ermini filed his petition in August of 2012, and the district court
conducted a bench trial in January of 2013. Under Federal Rule of Civil
Procedure 52(a), on April 19, 2013, the district court produced an opinion,
which contained its findings of fact and conclusions of law, and issued its
judgment. Ermini v. Vittori, No. 12 Civ. 6100, 2013 WL 1703590 (S.D.N.Y.
Apr. 19, 2013).
A.
The district court found several facts that are relevant to the matter
before us. First, the court found that the family had moved to the United
States in August of 2011 in connection with its longstanding efforts to find
appropriate treatment for Daniele. Id. at *4. Daniele had been diagnosed
with autism in March of 2008, and the couple sought unsuccessfully to find
adequate Applied Behavioral Analysis (“ABA”) therapy for Daniele in
Italy.3 Id. at *2. Indeed, while there, Vittori herself provided the bulk of
Daniele’s therapy. Id.
3 ABA is an “intensive one‐on‐one therapy that involves breaking
down activities into discrete tasks and rewarding a childʹs
accomplishments.” R.E. v. New York City Depʹt of Educ., 694 F.3d 167, 176
(2d Cir. 2012) (internal quotation marks omitted). ABA instructors use
“careful behavioral observation and positive reinforcement or prompting
6
Dissatisfied with Daniele’s development, the family sought other
avenues of relief. Id. In Spring of 2010, in Italy, they met Dr. Giuseppina
Feingold, an Italian‐speaking doctor with a practice in Suffern, New York.
Id. at *3. In August of 2010, they traveled to New York so that Dr. Feingold
could more fully assess and begin treating Daniele. Id. The parents were
impressed with the treatment options presented by Dr. Feingold, and
began to plan a move to Suffern, at first for a period of two‐three years, but
with the potential of a permanent relocation in mind, depending on the
success of Daniele’s treatment. Id.
Things moved speedily thereafter. The family returned to New York
in August of 2011, and promptly signed a one‐year lease on a house. Id. at
*4. The children were enrolled in public schools, and Daniele’s therapy
began soon after. Id. at *8‐9. The parents put their home in Italy on the
market, prepared to open a business in the United States, and made
arrangements to send their belongings here. Id. at *4.
to teach each step of a[n appropriate] behavior.” M.H. v. New York City
Depʹt of Educ., 685 F.3d 217, 226 n. 5 (2d Cir. 2012) (internal quotation
marks omitted).
7
In the meantime, Ermini, who had remained employed in Italy,
traveled back and forth between the United States and Italy. Id. During a
December of 2011 return to America, an apparently already contentious
relationship between Ermini and Vittori came to a head when a “violent
altercation” occurred, with Ermini physically abusing Vittori in the kitchen
of their Suffern, New York home. Id. at *5. In its findings of fact, the district
court found credible testimony that during this altercation Ermini had,
among other acts, hit Vittori’s head against a kitchen cabinet, and
attempted to “suffocate” and “strangle” her. Id.
The district court determined this incident was part of a history of
physical violence by Ermini. Id. The court found that Ermini “expresses
anger verbally and physically,” had hit Vittori at least ten times during the
course of their relationship, and was “in the habit of striking the children.”
Id.
In response to the December of 2011 incident, Vittori obtained a
temporary order of protection from the Suffern Court of Justice for herself
and the children. The order, among other things, granted her temporary
custody of the children through May 9, 2012. Id. at *6.
8
Ermini returned to Italy and instituted divorce proceedings. Id.
Vittori went back to Italy for those proceedings in April of 2012, by which
time the children’s American visas had expired. Id.
Meanwhile, in July of 2012, Ermini resolved criminal charges that
had been brought against him as a result of the December of 2011 domestic
abuse incident by pleading guilty in New York State court to harassment
in the second degree. Id. at *7. As a part of that plea, he consented to a one‐
year order of protection, which, among other things, required him to
refrain from contacting the children. Id.
In September of 2012, Ermini petitioned an Italian court in Velletri
for an order directing Vittori to return with the children to Italy. Id. The
court in Velletri granted Ermini’s petition, ordering Vittori to return with
the children, and making various rulings granting shared parental
authority between Ermini and Vittori and assigning visitation rights. Id.
In April of 2013, however, the Court of Appeals in Rome issued an
order (the “Rome Order”) vacating several provisions of the Velletri
court’s order. Id. The Court of Appeals granted Vittori exclusive custody of
the children, did not require her to return to Italy with the children, and
9
explicitly fashioned its order to comport with the orders of protection
issued in the United States arising from the December of 2011 domestic
abuse incident. Id.
With this background in mind, the district court made several
further findings of fact about the children and their experiences. Emanuele,
who had testified before the court in camera, was found to have displayed
“candor” and “maturity,” as well as a strong command of the English
language. Id. at *8. He was happy in America, and preferred living here,
both because of the “fear” he had of his father and because he preferred
the schooling he was receiving here. Id.
Moreover, the district court found that Daniele had “significantly
progressed” with his therapy in the United States. Id. He was engaged in a
Comprehensive Application of Behavioral Analysis to Schooling
(“CABAS”) program in Stony Point, New York, which, according to
Vittori’s expert, Dr. Carole Fiorile, offered the best ABA curriculum then
available to autistic children. Id. at *9. The program involved one‐on‐one
instruction with an educational team, including a special educational
10
teacher, an occupational therapist, a speech and language therapist, several
classroom assistants, and a full‐time one‐on‐one teaching assistant. Id.
The district court noted that Dr. Fiorile had stated that Daniele
required such a program to continue to make meaningful progress in,
among other things, cognition, language, and social and emotional skills.
Id. Dr. Fiorile had also testified that while the United States has over 4,000
board certified ABA practitioners, there were, to her knowledge, fewer
than twenty in Italy. Id.
The district court, weighing Dr. Fiorile’s opinion about the CABAS
program, made the following additional factual findings:
[Daniele] has benefitted immensely from the
superior resources of the school program in
which he has been enrolled while residing in the
United States. The CABAS program, with its
structured, intensive curriculum and extensive
classroom support, provided by professionals,
has resulted in marked improvement of
[Danieleʹs] self‐care, communication, vocabulary
in English and Italian and his general cognition
. . . . The unrebutted testimony of Dr. Fiorile at
trial and her expert report support the conclusion
that “any hope for [Daniele] to lead an
independent and productive life rests in his
participation in an intensive behavioral program
that rigorously implements the principles and
strategies of Applied Behavior Analysis (ABA),
11
such as the school program he currently attends
on a daily basis.” The hard work and good
intentions of [the parents] are not sufficient to
enable [Daniele] to progress to the extent to
which he is capable. Moreover, there was no
evidence presented at trial that any comparable
program is even available to [Daniele] in Italy.
Accordingly, separating [Daniele] from the
CABAS program . . . would put him in an
intolerable situation due to the grave risk of
deterioration of his condition and denial of
needed rehabilitation.
Id. at *9 (internal citation and brackets omitted).
Finally, the district court found that Daniele and Emanuele have a
close, loving relationship, and that the children and Vittori had overstayed
their visas and had applications for renewal pending.4 Id. at *10.
B.
Based on these factual findings, the district court drew several
conclusions of law. First, in order to determine if the children were indeed
removed from their habitual residence, and therefore whether the Hague
Convention applied, the district court considered whether their habitual
residence was Italy or the United States. Id. at *11‐12. The court found that
4 Although it ultimately does not affect our conclusions, we take
judicial notice of the fact that Vittori and the children now have
nonimmigrant status as U‐Visa eligible noncitizens. See footnote 1.
12
the children’s habitual residence was Italy, since there was no shared,
settled intent among the parents to change permanently the children’s
habitual residence to the United States. Id. at *12. The court also concluded
that the children had not sufficiently acclimatized to the United States as to
make the United States their habitual residence regardless of the parents’
shared intent. Id. at *12‐13.
The district court next considered whether Vittori had wrongfully
retained the children in the United States. Id. at *13‐15. Taking judicial
notice of the law of Italy, pursuant to Article 14 of the Convention,5 the
court explained that custody rights were defined by “mutual agreement”
and that the parents had not mutually agreed to keep the children in the
United States beyond April of 2012. Id. at *14. The court also determined
that Ermini had not evinced any intent to abandon the children or to
relinquish his custody rights. Id. Furthermore, the court found that while
the Rome Order held that Vittori had custody and needed not return the
children to Italy, the Rome Order was temporary and prospective. Id. at
5 The Convention authorizes the district court to “take notice directly
of the law of, and of judicial or administrative decisions” of the country of
habitual residence. Hague Convention, art. 14.
13
*15. The court therefore found that Vittori had violated Ermini’s custody
rights during the period between September of 2012, when the Velletri
court issued its ruling, and April of 2013, when the Rome Order was
issued. Id.
As a threshold matter, the district court therefore held that Ermini
had proved by a preponderance of the evidence: (1) that the children were
habitual residents of Italy, and were being retained in the United States by
Vittori; (2) that the retention was in breach of Ermini’s custody rights
under the law of Italy; and (3) that Ermini was exercising those rights at
the time of the childrenʹs retention in the United States. Id. at *12‐15.
The district court explained that the burden then shifted back to
Vittori to assert affirmative defenses against the return of the children to
the country of habitual residence. Id. at *15. On one of these defenses, the
court ruled in Vittori’s favor. Vittori had argued that return to Italy posed
a “grave risk” of harm to Daniele, pursuant to Hague Convention, Article
13(b), which precludes repatriation of a child where 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 an intolerable situation.” Id. at *15.
14
Vittori needed to prove this defense by clear and convincing
evidence, a burden which the district court held that Vittori had met. Id.
The record, according to the district court, established that, because
Daniele is severely autistic, he would face a grave risk of harm if he had to
return to Italy, as the return would “severely disrupt and impair his
development.” Id. at *16. The court further concluded that Daniele would
face “significant regression” if his CABAS program was interrupted and
held that “the predicted deterioration in [Daniele ʹs] cognition, social skills
and self‐care if [Daniele] is separated from the CABAS program . . .
constitutes psychological and physical harm sufficient to establish the
‘grave risk of harm’ affirmative defense.” Id. The court also determined
that because Emanuele and Daniele had a loving and close relationship,
separation would be harmful to both siblings, and that avoiding such a
separation met the requirements of the Hague Convention. Id. at *17.
Accordingly, the court denied Ermini’s petition for return to Italy as
to both children, but did so “without prejudice to renewal if [Daniele] is no
longer able to participate in the CABAS program and the Italian court
system issues a final order requiring the return of the children to Italy.” Id.
15
C.
Ermini appeals the district court’s decision, arguing that the court’s
conclusion that Daniele faced a “grave risk” of harm under Article 13(b) if
separated from his therapy and returned to his habitual residence in Italy
was erroneous. Vittori contends, to the contrary, that the district court’s
decision to deny the petition should be affirmed on this ground and
others. She also cross‐appeals, claiming, among other things, that the
district court wrongly determined: (a) that the children’s habitual
residence was Italy; (b) that she had breached Ermini’s custody rights; and
(c) that the domestic abuse suffered by her and the children did not
constitute a grave risk of harm under the Convention. Vittori further
maintains that the petition should have been denied with prejudice to
renewal.
In considering the parties’ arguments, we review de novo the district
court’s interpretation of the Hague Convention. Blondin v. Dubois (Blondin
IV), 238 F.3d 153, 158 (2d Cir. 2001). The district courtʹs factual findings are
reviewed for clear error, while its application of the Convention to its
factual findings is reviewed de novo. Id.
16
II.
The Hague Convention is a pact among nation‐states to protect
children in limited, though important, circumstances. It establishes
uniform standards, on one side, for ensuring the swift return of children
wrongfully removed or retained from their home states, and, on the other,
for barring return to a home state when doing so would create a grave risk
of harm to the children or violate their fundamental human rights and
freedoms. See Hague Convention, arts. 13 & 20.
The Convention was adopted in 1980 “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, pmbl., 51 Fed. Reg. at 10498. The Convention
is not designed to adjudicate custody claims, but only to determine the
merits of claims of wrongful removal and abduction. See id., art. 19 (“A
decision under this Convention concerning the return of the child shall not
be taken to be a determination on the merits of any custody issue.”).
17
The district court had authority to adjudicate the matter in the
instant case, see id. arts. 8, 11 & 29, and had to focus, as initially, on
whether the children were wrongfully removed or retained, an issue on
which Ermini bore the burden of proof by a preponderance of the
evidence. See 42 U.S.C. § 11603(e)(1)(A).
Under the Convention, removal or retention of a child is deemed
“wrongful” when:
[1] it is in breach of rights of custody attributed to
a person, an institution or any other body, either
jointly or alone, under the law of the State in
which the child was habitually resident
immediately before the removal or retention; and
[2] at the time of removal or retention those rights
were actually exercised, either jointly or alone, or
would have been so exercised but for the removal
or retention.
Hague Convention, art. 3.
Wrongful removal or retention, however, does not end the matter. If
a parent establishes that the removal or retention was wrongful, the child
is to be returned unless the defendant establishes one of four defenses. See
Blondin v. Dubois (Blondin II), 189 F.3d 240, 245 (2d Cir. 1999); see also 42
18
U.S.C. § 11601(a)(4). These defenses, or as they are also called,
“exceptions,” are to be construed narrowly. See 42 U.S.C. § 11601(a)(4).
Two of the four exceptions are to be established by clear and
convincing evidence. See id. § 11603(e)(2)(A). The first applies if “there is a
grave risk that [the childʹs] return would expose the child to physical or
psychological harm or otherwise place the child in an intolerable
situation.” Hague Convention, art. 13(b). The second governs when the
return of the child “would not be permitted by the fundamental principles
. . . relating to the protection of human rights and fundamental freedoms.”
Id., art. 20. The remaining exceptions are to be established by a
preponderance of the evidence. See 42 U.S.C. § 11603(e)(2)(B). The first
exception subject to this lesser standard applies if judicial proceedings
were not commenced within one year of the childʹs abduction and the
child is well‐settled in the new environment. Hague Convention, art. 12.
The second applies if the plaintiff was not actually exercising custody
rights at the time of the removal. Id., art. 13(a).
Finally, it should be noted that, since the Convention is a pact
among nation‐states, Congress has emphasized “the need for uniform
19
international interpretation of the Convention.” 42 U.S.C. § 11601(b)(3)(B).
In light of this necessity, the Supreme Court has made clear that, in
interpreting the Convention, we are to give the opinions of our sister
signatories “considerable weight.” Air France v. Saks, 470 U.S. 392, 404,
(1985) (quoting Benjamins v. British European Airways, 572 F.2d 913, 919 (2d
Cir. 1978)) (internal quotation marks omitted).
A.
The Hague Convention does not concern itself with situations where
two parents commit to settle a family in a new location, and where in so
migrating, neither parent breaches the other’s custody rights. Familial
migration across borders is a facet of family life for many, and unless there
is wrongful removal or retention of children from their habitual residence
and breach of custody rights, the Hague Convention is neither concerned
nor involved. The district court found, however, that both wrongful
retention and breach of custody rights had occurred here, thereby
triggering the Convention’s applicability. While we accept the district
court’s factual findings on these matters, the legal issues that apply to
these factual findings are quite complicated. Accordingly, we pause at the
20
outset to note that we harbor serious doubts as to the district court’s
conclusions of law on these issues. And we deem it appropriate to spend
some time on specifying the applicable legal standards.
i.
The district court found that the children’s habitual residence was
Italy, since the parents’ last shared intention was to move the family to the
United States only for a period of two‐three years, and potentially to stay
permanently if Daniele’s therapy was successful. Ermini, 2013 WL 1703590,
at *11‐12. There is, to be sure, some basis for the district court’s decision.
We have before stated that, in determining habitual residence, courts are to
focus on whether a “child’s presence at a given location is intended to be
temporary, rather than permanent.” Gitter v. Gitter, 396 F.3d 124, 132 (2d
Cir. 2005). And the two‐three year trial period here may well have
influenced the district court’s conclusion that this move was temporary.
We have also earlier credited a district court’s finding that a habitual
residence did not change because a move was of a “trial nature” and
“conditional.” Id. at 135. And here, the district court, again with reason,
focused on the fact that the parents were to reassess their stay in the
21
United States at the end of what appeared to be a trial period. Ermini, 2013
WL 1703590, at *11‐12.
But we stress that the period of time of a move is not the only
relevant factor in the analysis. Indeed, our sister signatories have clarified
that a habitual residence may be established even when a move is for a
“limited period” and indeed “indefinit[e].” Shah v. Barnet London Borough
Council and other appeals, [1983] 1 All E.R. 226, 235 (Eng.H.L). Drawing on
the approach in Shah, the Ninth Circuit has placed emphasis on divining
not just the duration of the move but instead, more broadly, the shared
intent and “settled purpose” of the parents. Mozes v. Mozes, 239 F.3d 1067,
1074 (2001). As the Third Circuit has stated, when similarly confronted
with a two‐year relocation, “the fact that the agreed‐upon stay was of a
limited duration in no way hinders the finding of a change in habitual
residence. Rather, . . . the parties’ settled purpose in moving may be for a
limited period of time. . . .” Whiting v. Krassner, 391 F.3d 540, 550 (3d Cir.
2004); see also Gitter, 396 F.3d at 132 (adopting the “shared intent”
approach). We thus want to emphasize that the time period attached to a
22
move is but one factor in determining, in a fact‐intensive manner, what the
settled intent among the parents was in making the move.6
Accordingly, we believe that the issue at hand was, at the very least,
a closer call than it was framed as being by the district court. In this case,
the family’s move, though indefinite, was not “of a trial nature” or for a
“trial period” as in Gitter, nor was akin to a summer sojourn; the move
indeed evinces a good degree of “settled purpose” and continuity. 396 F.3d
at 132, 135. As the district court found, Ermini and Vittori leased a house in
the United States and put their house in Italy on the market; enrolled the
children in school and extracurricular activities in the United States;
planned to open a business in the United States; prepared to move all of
their belongings to the United States; and shifted Daniele’s all‐important
medical care and treatment to the United States. Ermini, 2013 WL 1703590,
at *3‐4. This was a move shared in the parents’ minds not only as one of
6 Along these lines, we also note our skepticism of the district court’s
conclusion that Ermini conditioned the family’s relocation to the United
States on his continued cohabitation with Vittori and the children, see
Ermini, 2013 WL 1703590, at *11‐12, particularly in light of Ermini’s
statements that the move was spurred by the desire to secure improved
treatment for Daniele, id. at *3. Nevertheless, because we do not rely on the
habitual residence inquiry to affirm the district court’s ruling, we need not
determine whether this factual finding was made in error.
23
duration, stretching into years, but also formed with an understanding
that the duration could become permanent if Daniele’s treatment was
succeeding. Id. at *4. The facts found by the district court establish, at a
minimum, that the family intended to shift the locus of their family life to
the United States for a span of years. And, given these circumstances, we
are left uncomfortable with the district court’s conclusion that the family’s
habitual residence did not change.
ii.
Nor, as we see it, is it clear that Vittori breached Ermini’s custody
rights. Rights of custody are “rights relating to the care of the person of the
child and, in particular, the right to determine the child’s place of
residence.” Hague Convention, art. 5(a). Custody rights are provided by
“the law of the State in which the child was habitually resident
immediately before the removal or retention.” Id., art. 3(a). The district
court determined, quite properly, that, under Italian law, custody rights
are defined by “mutual agreement” of the parents, and therefore focused
on Ermini and Vittori’s agreement. Ermini, 2013 WL 1703590, at *14; see also
Title IV, Italian Civil Code of Law, Art. 316 (“A child is subject to the
24
authority of its parents until majority . . . or emancipation. The authority is
exercised by both parents by mutual agreement . . . .”).
We have serious doubts, though, as to the court’s reading of the
Rome Order. See Joint App’x at 700‐710. The Rome Order stated that
moving children to the United States had been jointly decided by the
parents. Id. at 702. Furthermore, the Rome Court of Appeals determined
that, under the circumstances, Ermini alone could not decide to remove the
children from the United States. Id. The Rome Court, in reversing the lower
court’s order, declined to order the children to return to Italy, and
awarded custody to Vittori. Id. at 703. It therefore appears to us that the
Rome Order, which focused in part on the New York proceedings against
Ermini for domestic abuse, meant, to the contrary of the Velletri court, that
Vittori had at no time breached Ermini’s custody rights by keeping the
children in the United States.7 This holding inevitably casts doubt on the
7 The Rome Order stated in pertinent part:
Another element of fact which is before the Court concerns the
protection order to safeguard Vittori and her children issued
in the United States against Ermini, ending in February 2014.
The existence of such a restrictive measure, at least until it is no
longer in effect, precludes shared custody of the children, with
custody having to go to the mother, who is the only one of the
25
district court’s conclusion that Vittori violated those rights between the
time of the Velletri judgment and the time of the Rome Order.8 However,
because other grounds exist to affirm the district court’s denial of Ermini’s
petition, we need not address whether we may properly rely on the Rome
Order, which was subject to appeal. See Shealy v. Shealy, 295 F.3d 1117, 1122
(10th Cir. 2002) (relying on an interim order that was in force at the time a
petition was filed to determine custody rights).
two parents able to take care of them and to make decisions
affecting them.
Joint App’x at 703 (emphasis added). The language indicated that, under
Italian law, the New York protection order precluded shared custody
whenever it was in effect, including the period following the Velletri
judgment.
8 Ermini directs our attention to a more recent order of the Velletri
court refusing to reissue Italian passports to Daniele and Emanuele, of
which we have taken judicial notice. See footnote 1. The order was issued a
few days after the district court below issued its decision, and we do not
take into account the order’s skepticism as to Daniele’s autism therapy in
the United States. Under the Hague Convention, it was the district court
that was authorized to make factual and legal determinations about
whether removal from the therapy would likely cause physical or
psychological harm to Daniele. See Blondin II, 189 F.3d at 245 (outlining
how the parent who claims the child has been wrongfully removed or
retained can make a claim before a district court “of the country to which
the children have been taken” to determine whether removal or retention
was wrongful).
26
iii.
As noted above, the legal issues surrounding custody rights, and
defining the family’s habitual residence, are complicated. As a result,
while we have doubts about the district court’s conclusions and thought it
important to clarify the governing legal standards, we choose not to
ground our decision on those issues. The case can be resolved, and the
district court’s decision readily affirmed, because we believe—even
assuming arguendo that the children’s habitual residence was in Italy and
that Vittori breached Ermini’s custody rights—that return would be barred
because the children faced a “grave risk” of harm if returned. It is to this
issue that we now turn.
B.
On the assumption that Vittori wrongfully removed and retained
the children, the analysis under the Convention would, nonetheless, not be
finished. As we noted earlier, the Hague Convention establishes defenses
to return, and we hold the “grave risk” of harm defense to be
determinative in this case.
27
i.
The district court found that the risk of harm Daniele faced if
removed from his therapy and returned to Italy was grave enough to meet
the Hague Convention’s standards. We agree. We, however, also hold,
contrary to the district court, that Ermini’s history of domestic violence
towards Vittori and the children was itself sufficient to establish the Hague
Convention’s “grave risk” of harm defense.
We have in the past ruled that a “grave risk” of harm does not exist
when repatriation “might cause inconvenience or hardship, eliminate
certain educational or economic opportunities, or not comport with the
childʹs preferences.” Blondin IV, 238 F.3d at 162. But we have also stressed
that a grave risk of harm exists when repatriation would make the child
“face[] a real risk of being hurt, physically or psychologically.” Id. The
potential harm “must be severe,” and there must be a “probability that the
harm will materialize.” Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013).
Domestic violence can satisfy the defense when the respondent
shows by clear and convincing evidence a “sustained pattern of physical
abuse and/or a propensity for violent abuse.” Id. at 104 (internal quotation
28
marks omitted). And we concluded that a “grave risk” of harm from abuse
had been established where the “petitioning parent had actually abused,
threatened to abuse, or inspired fear in the children in question.” Id. at 105.
Spousal violence, in certain circumstances, can also establish a grave risk
of harm to the child, particularly when it occurs in the presence of the
child. See id. at 103‐04 (stating that spousal abuse is relevant insofar as it
“seriously endangers the child”); see also Khan v. Fatima, 680 F.3d 781, 787
(7th Cir. 2012). We have also been careful to note that “[s]poradic or
isolated incidents of physical discipline directed at the child, or some
limited incidents aimed at persons other than the child, even if witnessed
by the child, have not been found to constitute a grave risk.” Id. at 104.
The district court found that Ermini “expresse[d] anger verbally and
physically,” and that he struck Vittori and frequently hit the children.
Ermini, 2013 WL 1703590, at *5. Indeed, the district court determined that
Ermini was “in the habit of striking the children.” Id. The district court
construed some of the hitting as disciplinary, id., but it did not, and could
not, conclude that the hitting was “[s]poradic or isolated.” See Sourgatar,
720 F.3d at 104. The court also found that Vittori testified credibly that
29
Ermini “had hit her at least 10 times during the course of their
relationship.” Ermini, 2013 WL 1703590, at *5. On the question of abuse,
the district court’s findings about the “violent altercation” in the kitchen of
their Suffern residence on December 28, 2011 are particularly troubling. Id.
The court credited both Vittori’s account of having her head “shoved” into
the kitchen cabinets while Ermini attempted to “suffocate” and “strangle”
her, and Emanuele’s parallel account of the events, which both he and
Daniele observed. Id. The district court also credited Emanuele’s
testimony that he generally feared his father. Id. at *8.9
We believe that these findings by the district court manifestly
establish that Ermini engaged in a “sustained pattern of physical abuse,”
Souratgar, 720 F.3d at 104 (internal quotation marks omitted), directed at
Vittori and the children: Vittori was repeatedly struck; as were the
children, whom Ermini was “in the habit” of hitting; and Emanuele
testified to being fearful of his father on the basis of this physical and
9 We additionally note the potential for a heightened adverse impact
of the hitting of the children, and of exposure to the abuse that Vittori
suffered, on Daniele as an autistic child. See Amicus Br. of Professor
Elizabeth Lightfoot et al., 8‐13.
30
verbal abuse. These findings evince a “propensity” for violence and
physical abuse and a resulting fear in the children. Id. at 104. We therefore
hold that the facts found by the district court were sufficient to meet the
Hague Convention’s requirement, by clear and convincing evidence, that
the children faced a “grave risk” of harm because of Ermini’s physical
abuse.10
ii.
The district court found that another “grave risk” of harm existed.
The court held that Daniele faced a grave risk of harm if removed from his
current therapy and returned to Italy. Ermini, 2013 WL 1703590, at *16‐17.
In light of its factual findings,11 we hold that the district court’s conclusion
of law was correct.
10 Normally, this finding alone would not end our analysis. We would
next consider, or remand for the district court to consider, the range of
remedies that might allow for return of the children to their home country
together with protection from the domestic abuse. See Blondin II, 189 F.3d at
248‐49. But, since we also hold that there is a second, independent harm to
returning the children, which cannot be ameliorated, such further analysis
is not needed here.
11 We note that the opinions and testimony credited by the district
court, both about the lack of autism therapy and resources in Italy, and
about the harms likely to befall Daniele were he removed from his current
program, are sweeping and strong. Whether we, in the district court’s
31
The district court credited the testimony and report of Dr. Fiorile
that, if Daniele were to be removed from his educational program and not
provided promptly with an analogous program, he would face a severe
loss of the skills that he had successfully developed since beginning his
program—including his ability to develop cognitive, linguistic, social, and
emotional skills. Id. at *16, 8‐9. The court further credited Dr. Fiorile’s
conclusion that any “hope for [Daniele] to lead an independent and
productive life” depended on his participation in a program such as the
CABAS program that he attended on a daily basis, and that this particular
program was not available in Italy. Id. at *9. Dr. Fiorile also stated that if
Daniele were to be removed from this program, he would “cease to be able
shoes, would have adopted these factual findings is irrelevant. The
standard of review is “clear error” and our “review under the ‘clearly
erroneous’ standard is significantly deferential.” Concrete Pipe & Prods. of
Cal., Inc. v. Constr. Laborers Pension Trust for Southern Cal., 508 U.S. 602, 623
(1993). We must accept the trial courtʹs findings unless we have a “definite
and firm conviction that a mistake has been committed.” Id. (internal
quotation marks omitted). In light of Dr. Fiorile’s “unrebutted testimony”
that Daniele’s hope for “an independent and productive life” rested on his
continued participation in the CABAS program, as well as the fact that “no
evidence” was presented at trial to support that such a program was
available to Daniele in Italy, see Ermini, 2013 WL 1703590 at *9, we do not.
32
to learn to write or to talk and w[ould] most likely never learn to read.”
Joint App’x at 320.
This is the first occasion for this Court to consider this kind of
psychological harm pursuant to Article 13(b). We note, however, that
Article 13(b) explicitly lists “psychological” harm and “physical” harm as
appropriate harms for triggering the Convention’s affirmative defenses,
both of which are implicated by a developmental disorder such as autism.
And we hold that the facts as found by the district court lend themselves
straightforwardly to the conclusion that the risk of harm was grave.
First, the district court’s findings established there was a
“probability that the harm w[ould] materialize.” Souratgar, 720 F.3d at 103.
Indeed, the district court credited testimony that does not speak in terms
of probability but instead of near certainty: “if [Daniele] leaves the Stony
Point CABAS program even temporarily, he will face a significant
regression in his skills and [] without such an intensive, structured
program, [Daniele] will not develop the cognitive, language, social,
emotional and independent living skills that he is likely to acquire through
such a program.” Ermini, 2013 WL 1703590, at *16 (emphasis added).
33
Second, the court’s finding that Daniele would lose the ability to
develop cognitive, emotional, and relational skills, and potentially lead an
independent life, if removed from his current therapy and repatriated,
establishes harm of a “severe” magnitude manifestly sufficient to satisfy
the exception. Souratgar, 720 F.3d at 103. The harm, in fact, is of such a
severity that it threatens to strike to the very core of the child’s
development individually and of his ability to participate as a member of
society.
We also note that, in similar circumstances, our sister signatories
have found the risk of harm in removing an autistic child to be sufficiently
grave. See, e.g., J.M.H. v. A.S., [2010] 367 N.B.R. 2d 200 (N.B. Fam. Ct.)
(Can.) (concluding that the risk to the wellbeing of a child who exhibited
signs of autism in removing the child from treatment was sufficiently
grave); DP Commonwealth Cent. Auth., [2001] HCA 39 (High Ct. Austl.)
(finding that a lack of adequate treatment facilities for a child with autism
in his country of habitual residence was a reason for refusing to return the
child).
34
Considering the unrebutted testimony before the district court
concerning the risk of harm Daniele faced if he were returned to Italy, we
have no reason to disturb its factual findings. On the basis of those
findings, we agree with the district court that the very real harms that
Daniele likely would have faced if removed from his therapy and
repatriated satisfy the “grave risk” of harm defense.
Moreover, in light of the children’s close relationship to each other,
and, significantly, the conclusion we reached with respect to abuse, we
determine as well that it was not error for the district court to decline to
separate the children. See Ermini, 2013 WL 1703590, at *17 (“Courts in this
Circuit have frequently declined to separate siblings, finding that the
sibling relationship should be protected even if only one of the children
can properly raise an affirmative defense under the Hague Convention.”).
C.
A final issue confronts us. The district court denied Ermini’s petition
without prejudice to renewal “if [Daniele] is not able to continue with his
current CABAS program and the Italian court system issues a final order
requiring the return of the children to Italy.” Ermini, 2013 WL 1703590, at
35
*17. We amend the judgment to deny Ermini’s petition with prejudice to
renewal, as we believe the district court’s approach—which is, so far as we
can tell, the first such instance of denial without prejudice in a Hague
Convention case—to constitute an error of law, neither justified nor
allowed by the Convention. Since the “proper interpretation of the Hague
Convention is an issue of law,” we review the district court’s decision de
novo. Blondin IV, 238 F.3d at 158 (internal quotation marks omitted).
“In interpreting a treaty, it is well established that we begin with the
text of the treaty and the context in which the written words are used.”
Swarna v. Al–Awadi, 622 F.3d 123, 132 (2d Cir. 2010) (internal quotation
marks and alteration omitted). The Hague Convention provides either for
the “return of the child forthwith” if the child is wrongfully removed,
pursuant to Article 12, or for a “determin[ation] that the child is not to be
returned,” pursuant to Article 16. The Convention authorizes these
decisions alone, and stresses the importance of deciding matters
“expeditiously.” See Hague Convention., art. 11. It also explicitly keeps
courts out of deciding, or acting under the Convention, “on the merits of
rights of custody.” Id., art. 16.
36
Furthermore, as the Hague Conventionʹs Explanatory Report—which
we have construed as being an authoritative and official history of the
Convention proceedings, see Blondin II, 189 F.3d at 246 n.5—has explained,
the Convention “is not concerned with establishing the person to whom
custody of the child will belong at some point in the future, nor with the
situations in which it may prove necessary to modify a decision . . . on the
basis of facts which have subsequently changed.” Elisa Perez‐Vera,
Explanatory Report: Hague Conference on Private International Law, in 3 Acts
and Documents of the Fourteenth Session 426 (1980), (“Explanatory
Report”) ¶ 71.
By denying the petition without prejudice to renewal, the district
court allows the parties to call upon future events and engage in
prospective modifications in light of changed facts in precisely the way the
Convention intended to prohibit. As the Explanatory Report shows, the
Convention is concerned with events at a particular moment: it either
requires return or, in light of the risks of harm or other circumstances, it
does not. Once a determination properly applying the Convention to the
facts at hand has been made, all other issues leave the realm of the treaty’s
37
domain. The Convention is not, and cannot be, a treaty to enforce future
foreign custody orders, nor to predict future harms or their dissipation.
See, e.g., Redmond v. Redmond, 724 F.3d 729, 741 (7th Cir. 2013) (“The Hague
Convention targets international child abduction; it is not a jurisdiction‐
allocation or full‐faith‐and‐credit treaty. It does not provide a remedy for
the recognition and enforcement of foreign custody orders or procedures
for vindicating a wronged parentʹs custody rights more generally.”); Mota
v. Castillo, 692 F.3d 108, 112 (2d Cir. 2012) (“[T]he Convention’s focus is
simply upon whether a child should be returned to her country of habitual
residence for custody proceedings.”). Indeed, the Convention stresses the
need for, and importance of, establishing swiftly a degree of certainty and
finality for children. 12 See, e.g., Chafin v. Chafin, 133 S. Ct. 1017, 1030 (2013)
(Ginsburg, J., concurring) (“Protraction . . . is hardly consonant with the
Convention’s objectives.”); Blondin II, 189 F.3d at 244 n.1 (noting the
necessity that procedural and substantive decision‐making be expeditious
12 Of course, should there be a future Italian custody order, neither
parent would be without redress, but that redress would likely come in
New York State court, pursuant to the Uniform Child Custody Jurisdiction
and Enforcement Act, N.Y. Domestic Relations Law §§ 75 et seq.
38
so they do not exceed the time that the child can endure the uncertainty of
the process).
For these reasons, we conclude that the Convention did not permit
denial of the petition without prejudice. Accordingly, we order that the
judgment be amended to deny Ermini’s petition with prejudice to renewal.
CONCLUSION
We AFFIRM the district court’s denial of appellant’s petition, and
AMEND its judgment to deny that petition with prejudice.
39
Ermini v. Vittori
Combined Opinion