Concedda vs. Caviglia [MN 2002] Clearwater County MN File No F6-02-65 10 International Abduction [USA 2002] =========================================================== State of Minnesota County of Clearwater District Court Ninth Judicial District Family Court Court File No. F6-02-65 Antonello Concedda, Petitioner vs Maria Caviglia, Respondent ORDER DIRECTING RETURN OF MINOR TO COUNTRY OF HABITUAL RESIDENCE. 001 The above-entitled matter came on for hearing before the Honorable Paul B. Rasmussen Judge of District Court, in the Clearwater County Courthouse, Bagley, Minnesota on May 16, 2002 on Petitioner's request for return of his child pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. Petitioner appeared personally and with his attorney, Arlen Larson, P.O. Box 436, Bagley, Minnesota 56621. Respondent appeared personally and with her attorney Ronald Cayko, 514 America Avenue, P.O. Box 880, Bernidji, Minnesota 56619. 002 Based upon the evidence presented, arguments of counseL and upon all the files, records and proceedings herein, the court makes the following: FINDINGS OF FACT 003 1. Petitioner Antonello Concedda and Respondent Maria Cavigila are the natural parents of the minor child, Francisco Maurizo Concedda, born February 2, 1993. 004 2. The parties are Italian Citizens. The child was born in the United States and has dual United States - Italian citizenship. 005 3. Respondent commenced a legal separation proceeding against Petitioner in Italy in February 2000. 006 4. In the spring 2000, Petitioner and Respondent were living apart, and Petitioner was having a difficult time seeing his son. 007 5. On April 28S,. 2000 Petitioner obtained a decision from The Court of Minors of Genoa allowing him to see his child once a week in the presence of Respondent for the month of May and "up to the presidential hearing in the procedure of separation" scheduled for August. 008 6. The Petitioner had difficulty seeing the child in the presence of the Respondent and requested a change in the April 28, 2000 decision. On May 15, 2000, the Court of Minors of Genoa issued a new decision allowing Petitioner to see his child In the presence of "operators of the social district" instead of in the presence of the Respondent "up to the presidential hearing in the procedure of separation." 009 7. On September 22, 2000 a hearing on the matter of custody was held in an Italian Court, with Petitioner and Respondent present, along with a psychologist. Written testimony was presented. 010 8. On September 28, 2000, Respondent and the child left from Nice France and traveled to Los Angeles, California U.S.A. 011 9. Respondent did not tell Petitioner that she was taking the child to the States. 012 10. At the time Respondent left with the child, the custody determination was pending in the Italian Court. 013 11. The child was a habitual resident of Italy at the time he was removed by Respondent. 013A 12. On October 10, 2000, in a Genoa Court of Law, with Petitioner and attorneys for both parties present, the Court authorized the parties' separation, gave custody of the child to the Petitioner [WMH: Respondent?], and set a visitation schedule. 014 13. A booked airline flight for Respondent and child's return on October 29, 2000 was never used. 015 14. After one month in Los Angeles, Respondent and child went to Minneapolis, Minnesota and in early November 2000 they traveled to Clearwater County, Minnesota. 016 15. On May 21, 2001, based upon the Respondent's taking the child to an unknown destination while the proceeding was in process, and depriving the child with any contact with the father who ultimately obtained custody "as ruled upon by a presidential provision upon the separation" the Youth Court of Genoa issued an Order disqualifying her as guardian of the child. 017 16. In the Spring of 2002, Petitioner located Respondent and child in Clearwater County, and filed a petition with the Central Authority for the return of the child. 018 17. On June 21, 2002, the Italian Central Authority issued a statement that abduction of the child, Francisco Concedda, by his mother was wrongful under Article 3 of the Hague Convention. 019 18. The child was removed from his habitual residence in derogation of the custody rights of Petitioner. CONCLUSIONS OF LAW 020 1. This petition is brought pursuant to The Convention on the Civil Aspects of International Child Abduction, done at the Hague on October 25, 1980 (Convention) and 42 U.S.C. 11603(b), the international Child Abduction Remedies Act (ICARA) The objects of the Convention are: 021 a. Article 1(a): To secure the prompt return of children wrongfully removed to or retained in any Contracting State; and 022 b. Article 1(b): To ensure that rights of custody and access under the laws of one Contacting State are effectively respected in the other Contracting States. 023 2. This court has jurisdiction pursuant to 42 U.S.C. 11603. 024 3. PetitIoner has a right of custody of the child within the meaning of Articles 3 and 5 of the Convention in that he is the father of the child and was granted custody by an Italian Court of law. 025 4. Italy was the child's habitual residence at the time of the removal. 026 5. Respondent's removal of the child from his habitual residence in derogation of Petitioner's rights of custody was wrongful removal under Article Three of the Convention. 027 6. The Petitioner at the time of the wrongful removal was actually exercising custody within the meaning of Articles Three and Five of the Convention. 028 7. The Memorandum attached hereto is herein incorporated as part of the Findings of Facts and Conclusions of Law in this matter. ORDER 029 1. Pursuant to the provision of The Convention on the Civil Aspects of International Child Abduction, done at the Hague on October 25 1980 (Convention) and/or the International Child Abduction Remedies Act, 42 U.S.C. 11601 at seq, that the minor Francisco Concedda, born February 2, 1993, be returned in the company of his father to the sovereign nation of Italy and to report the delivery of the child to appropriate Central Authority. 030 2. By virtue of this order, Antonello Concedda has the exclusive right to the physical and legal custody of the child during the period of time required to return to the above mentioned child to Italy, the country of the minor's habitual residence. 031 3. Clearwater County Court Administration is authorized to release the child's passport to the Clearwater County Sheriff. 032 4. This order is not a determination of the merits of any custody issues within the meaning of Article 19 of the ConventIon. 033 5. The order of this court is made under the authority of 42 U.S.C.  11603(a), conferring upon this court original and concurrent jurisdiction with federal district courts of the United States. 034 6. The Respondent shall pay necessary expenses incurred by or on behalf of the Petitioner pursuant to 42 U.S.C  11607(b)(3), unless the Respondent can establish that such payment would be inappropriate. THEREFORE, TO ANY PEACE OFFICER IN THE STATE OF MINNESOTA OR TO ANY OFFICER: 035 You are hereby commanded to enforce the instant order, utilizing any appropriate means (including electronic monitoring or taking the child into protective custody), allowing AntoneUo Concedda to remove the above named minor from the United Stales of America, and to allow Antonello Concedda to accompany him to the country of Italy, giving said Antonello Concedda the right, without hindrance, to said child in his lawful custody for the purposes described herein. 036 This order is effective the date below written, and shall continue in force and effect until modified or canceled by a court of competent jurisdiction in Italy. Date: July 19. 2002 /s/ Paul Rasmussen The Honorable Paul Rasmussen Clearwater County District Court 213 Main Avenue North Bagley, Minnesota 56621 (218) 694-6177 037 I hereby certify that the above Conclusions of Law constitute an Order of this court. Dated: 19 Jul 2002 Darlene Gerbracht, Court Administrator /s/ Darlene Gerbracht By: /s/ Betty Metz Deputy Court ADministrator =============================END ORDER===================== MEMORANDUM 038 The above matter came before the court on Petitioner's request that the child of this action, Francisco Concedda, be returned to Italy with Petitioner pursuant to the terms of the Hague Convention on the Civil Aspects of International Child Abduction. Respondent objects to Petitioner's request, arguing that Petitioner did not have custody rights at the time of the child's removal and accordingly, the request for return does not come within the purview of the Convention. Respondent also asserts that even if the child was wrongfully removed in breach of Petitioner's custody rights, certain affirmative defenses apply. Based on the evidence and law, the court makes the following determination on Respondent's claims. 039 The Respondent's first claim is that she had sole custody of the child at the time of removal, and therefore the removal was not wrongful within the meaning of the convention. The burden of proofing a wrongful removal is on the Petitioner. 42 U.S.C.  11603 (e)(1)(A). The standard of proof is that of a preponderance of the evidence. 42 U.S.C  11603 (e)(1). Article 3 of the Convention defines wrongful removal as a breach of rights of custody attributed to a person, either jointly or alone, under the laws where the child was habitually resident immediately before the removal or retention. Here neither party submitted an order dated prior to the removal that clearly granted or eliminated rights of custody the court assumes were inherent to both parents. The court, otherwise lacking sufficient information on Italian law and constrained by a foreign language did, pursuant to Article 15 of the Hague Convention, request that the Italian Judicial authority provide a decision or other determination whether the removal of the child on September 28, 2000 was wrongful within the meaning of Article 3 of the Convention. In a response dated June 21, 2002, the Italian authority stated that the abduction of Francisco Concedda by his mother was wrongful under Article 3. The Italian Authority also made special reference to a May 21, 2001 Order of the Juvenile Court in Genoa which, in disqualifying Maria Cavigila as guardian, of the child, referred back to previous proceedings which had noted that the mother had left Italy while the separation proceeding was in process and referred to the father having been granted custody "as ruled by a presidential provision upon their separation." The Italian Authority's response to this court's inquiry comports with Petitioner's version of what legal proceedings transpired and the results of those proceedings. 040 The respondent claims that she bad sole custody of the child at the time she left Italy. Based upon the response of the Italian authority, and upon careful review of all the documents and testimony, the court is convinced otherwise. The Juvenile Court Orders dated April 28, 2000 and May 15, 2000 did not specifically grant Respondent sole custody of the child. The Orders were for the limited purpose of setting temporary visitation for the father and the child, and were to be in effect until a separation hearing scheduled for later in the year. On. September 22, 2000 the partIes were in court in Genoa. Approximately six days later the Respondent removed the child from Italy while a custody decision was still pending. Approximately two weeks after the removal, Petitioner was given custody of the child with visitation to the mother, as evidenced by the October 10, 2000 minutes of the Genoa court and the contents of the May 2, 2001 Order of the Juvenile Court in Genoa. The preponderance of the evidence supports a finding that the Respondent did wrongfully remove the child. The Convention applicable and the court has the authority to return the child. 041 The Respondent also argues that even if she removed the child in breach of Petitioner's custody rights, the child would suffer psychological harm If be were required to return. Pursuant to Article 13b,the court is not bound to order the return of the child if it is established that there is a grave risk that returning the child would expose him to physical or psychological harm, or would otherwise place him in an intolerable situation. Respondent has the burden of establishing the defense by clear and convincing evidence. 42 U.S.C  11603(e)(2)(A). In applying the defense, courts have generally focused on the appropriateness of the general environment of the country to which the child is to be returned, and specific dangers to the child that cannot be ameliorated by the courts of the child's habitual residence. Friedrich v. Friedrich 78 Fed.3d 1060 (6th Cir. 1996). As defined by the Courts analyzing the standard, grave risk of harm exists by returning a child to a zone of war, famine or disease, or in cases of serious abuse or neglect, returning a child where the country of habitual residence may be incapable or unwilling to give the child proper protection. Id. at 1069. 042 To support her claim, Respondent had the child examined by Dr. Elliot Grant, staff clinical psychologist at Northwest Medical Center. Based on information provided to him by the Respondent and his examination of the child, however, Dr. Grant could not draw the conclusion that return of the child would cause the child to be placed in grave risk of psychological harm if he was returned to Italy with Petitioner. 043 The Court notes that much of Respondent's arguments on this issue involved issues of adjustment the child, as any, would have in relocating. Disruption of the sense of attachment that occurs during an extended stay in a particular location with a single parent does not constitute a grave risk of harm under the Convention. Other evidence offered by Respondent was more relevant and primarily directed to a choice between either parents or locale. As stated by another court, "The exception for grave harm to the child is not license for a court in the abducting country to speculate on where the child would be happiest. That decision is a custody matter, and is reserved to the court in the country of habitual residence." Id at 1068. 044 Respondent also attempted to raise issues of alleged past conduct by Petitioner. The alleged incidents occurred prior to the Respondent and Petitioner's court appearance in Italy. By attempting to raise these Issues Respondent was attempting to re-litigate issues that either were or should have been raised and addressed in the courts of Italy. Even if the court accepted these allegations by Respondent, the allegations do not rise to the level of grave risk of physical or psychological harm to the child, and there is no evidence that the Italian Court would be incapable or unwilling to protect the child, if ever necessary. For these reasons, Respondent has failed to establish by clear and convincing evidence that the child would be at a grave risk of harm if he were returned to Italy. 045 Respondent also argues that the child is now settled in its new home and should note at this point be ordered returned to Italy. Article 12 provides that the judicial authority, even where proceedings have commenced over a year past the removal date, shall order the return of the child unless it is demonstrated that the child is "settled" in the new environment. The Respondent left Italy with the child on or about September 28, 2000. The present action was commenced March 18, 2002. The commencement of the action was more than one year after the removal of the child, arguably allowing the Respondent to raise the claim that the child is well-settled in his new home and should not be ordered returned to Italy. 046 In support of this affirmative defense respondent points out that the child has attended school for 2 years in the area, that he has made friends, and considers himself not an Italian, but an American. Respondent indicates that the child is an English speaker in an English-speaking environment, and that the child is happy to be in his present environment. The evidence in this case also shows that when Respondent left Italy with the child she did not inform Petitioner where she went with the child. Upon learning that the child bad been abducted, Petitioner reported the abduction in the appropriate law enforcement agencies in his country of Italy. He contacted Respondent's father and brother to see if they knew where the child was. On May 6, 2001 Petitioner filed an Application for Return of the Child as required under the Hague Convention On Civil Aspects of International Child abduction. The respondent, meanwhile, had traveled to a small rural county in Northern Minnesota where neither she nor the child had any apparent ties. Respondent enrolled the child in a small (20 pupIl) rural school. The child had no contact with his father, his paternal aunts, uncles, grandparent or cousins or friends in Italy. Although the evidence indicates that community members are pleased with the child's presence in the community, the court does not believe that this child can be considered settled where he is moved surreptitiously to a remote area and is essentially concealed from his father. See Lops v, Lops, 140 F.3d 927 (11th Cir 1998) (where concealed children living in a area for two and one half years were not settled.) Respondent did the unthinkable; she abducted her child and attempted to conceal him from the other parent and family members. Whatever reason or rationale Respondent had for her behavior, it could not and does not justify such an action. "The international abduction or wrongful retention of children is harmful to their well-being." 42 U.S.C.  11601 (a)(1). 047 Tire court also notes that the child's location in such a remote area has an obvious relationship to the delay in making the formal application for the child's return. Allowing a parent who has secreted a child from the other parent to profit from conduct is contrary to basic principles of equity. Abducting a child and then - upon being brought into court - arguing that the child has become used to the place where they were abducted to is disingenuous at best. "Persons should not be permitted to obtain custody of children by virtue of their wrongful removal or retention." 42 U.S.C. 11601(a)(2). The evidence indicates that the Respondent abducted the child, and deliberately hid the child from the other parent. While the child has become somewhat accustomed to his new surroundings, Respondent has not established an affirmative defense under the "well-settled" exception. 048 Finally, Respondent argues that the Court should not send the child back to Italy because the child does not want to return to Italy and does not want to be removed from his mother's care. According to Article 14 [WMH Note: Should be 13] of the Convention, "The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has obtained an age and degree of maturity at which it is appropriate to take into account of its views." This child is clearly not of a sufficient age and degree of maturity at which it would be appropriate to give dispositive weight to the child's preference. 049 In returning the child to Italy, this Court is following the mandates of the Convention. The focus of the Convention is the prompt return of children and restoration of the status quo. The goal of the Convention is to deter abductions by making such behavior legally fruitless. In that regard, the laws in this state on issues of ultimate custody are irrelevant. 050 The respondent initiated the court proceedings in Italy. Significantly, in so doing she asked the court in Italy to assert jurisdiction over herself, the petitioner, and the child. The Italian court did so, and Respondent participated in several court hearings with a lawyer. Orders were issued by the Italian court granting the petitioner limited and supervised visitation every other weekend. These preliminary orders implicitly recognized Respondent as the primary custodian of the child. Had Respondent remained in Italy and litigated the custody issue there, she may well have prevailed. For some reason, however, she elected to flee the jurisdiction where she bad initiated court proceedings. 051 It may be that respondent sensed or feared the Italian proceedings were not going her way or that she would lose custody. Indeed, the record suggests that Respondent may have been interfering with Petitioner's custody rights to such an extent that it was undermining her legal position. It also appears that Respondent left Italy not only in the middle of the court proceeding, but while a custody determination was pending. Respondent asked the Italian court to resolve the issues of her marriage and the custody of her child, but did not wait for an answer. She fled the country, the Italian court, the petitioner, and her family. 052 The important issue of custody needs to be resolved in a court of law, not by the unilateral action of having one parent abduct the child and hide in another country. Respondent should return to Italy to be there for the child and to litigate custody in the court proceeding she initiated. It must be assumed that the Italian authorities will act as to protect the welfare of the child. It may well be that Respondent will ultimately be awarded custody. That determination is, however, clearly one for the Italian Court to decide. Accordingly, this court must order the return of the child. P.E.R.