by Dalya Bordman
Ermini v. Vittori, 758 F. 3d 153 (2d Cir. 2014).
An Italian family, parents Emiliano Ermini, Viviana Vittori, and children Emanuele and Daniele, moved to the United States from Italy in August of 2011 in efforts to find treatment for Daniele who is autistic. The family moved to Suffern, New York and enrolled the children in public school and put their home in Italy up for sale. Daniele started Applied Behavioral Analysis (ABA) therapy shortly after the family moved to New York. After a violent altercation in the U.S. between Ermini and Vittori, divorce proceedings were instituted in Italy and a temporary order of protection issued in New York gave Vittori temporary custody of the children.
In September 2012, Ermini petitioned an Italian court for an order directing Vittori to return to Italy with their children and although granted, several provisions of the order were vacated by the Court of Appeals in Rome. The Rome Order granted Vittori exclusive custody of the children and did not require her to return to Italy with the children. Ermini subsequently filed a petition in the Southern District of New York pursuant to the Hague Convention seeking the return of both Emanuele and Daniele back to Italy. In determining whether the Hague Convention applied, the district court concluded that the boys’ habitual residence was Italy and that Vittori had wrongfully retained the children in the United States without the consent of Ermini. Accordingly, the court found that the Hague Convention did apply, however, ruled in favor of Vittori’s affirmative defense that returning the children to their habitual country posed a grave risk to Daniele. Thus, the court denied Ermini’s petition to return the children to Italy without prejudice.
The Second Circuit, however, called into question the district court’s determinations that (1) the family did not change its habitual residence from Italy to the United States, and (2) that Vittori breached Ermini’s custody rights. Firstly, the Second Circuit reasoned that the family may have changed their habitual residence to the United States as they had leased a house in the United States, put their home in Italy on the market, enrolled their children in public school and extracurricular activities in the United States, planned to open a business in the United States, and shifted all of Daniele’s medical care and treatment to the United States. Additionally, both Ermini and Vittori agreed that the move could be indefinite if Daniele’s treatment was succeeding. Secondly, based on the Rome Order, in which custody of the children was granted to Vittori, the court questioned whether or not Vittori’s keeping the children in the United States against Ermini’s wishes actually breached Ermini’s custody rights, as Ermini did not have legal custody of the children. The Second Circuit, however, did not overturn the district court’s ruling on those grounds because the issues of habitual residency and breach of parental rights were complicated, and instead affirmed the district court’s decision based on the affirmative defense of grave risk of harm to the child if returned. Thus, the Second Circuit assumed, arguendo, that the family had not changed their habitual residence from Italy to the United States and that Vittori did breach Ermini’s parental rights by keeping the children in the United States. The Second Circuit then affirmed the district court’s decision denying Ermini’s petition because the grave risk of harm defense was satisfied as, (1) Daniele would face a grave risk of harm if he was taken out of his therapy in the United States, and (2) the children faced a grave risk of harm in Ermini’s custody because he was physically abusive. The Second Circuit then amended the district court’s judgment to deny Ermini’s petition with prejudice, reasoning that the Hague Convention is used to decide instances of wrongful child removal and when the Convention is invoked, a child is returned or he is not, once that decision is made, the Convention is no longer needed in that situation. Thus, the court affirmed the district court’s decision and amended its judgment to deny Ermini’s petition with prejudice.