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Pennacchia v. Hayes

United States District Court, D. Idaho

July 28, 2016



          Honorable Edward J. Lodge U.S. District Judge


         Before the Court in this matter is a Verified Petition for Return of Child. The Court held an evidentiary hearing and parties have filed briefing and supporting materials on the Petition. Having considered the entire record, the Court denies the Petition.


         The Petitioner, Danilo Pennacchia, and Respondent, Dena Michelle Hayes, are the unwed parents of the five year old child (“SAPH” or “the Child”) who is the subject of this case. The Petitioner is a citizen of Italy and the Respondent is a citizen of the United States. SAPH was born in Seattle, Washington on August 24, 2010 and is a citizen of both the United States and Italy. Beginning in October of 2010, the Petitioner, Respondent, and SAPH all lived together in Italy.

         In July of 2015, the Petitioner agreed to the Respondent traveling with SAPH to the United States but claims the Respondent was to return SAPH to Italy in August of 2015. (Dkt. 1 at ¶ 8.) The Respondent has not returned SAPH to Italy. Petitioner claims SAPH has been wrongfully retained in the United States since August of 2015 and is currently in the State of Idaho. (Dkt. 3-3, Dec. Pennacchia.) Petitioner claims he has custody rights stemming from a May 30, 2014 decision of the Common Court of Rome in Italy. (Dkt. 3-3, Dec. Pennacchia, Ex. C-4.). Petitioner maintains he was exercising his custody rights as SAPH’s father at the time of SAPH’s wrongful retention. (Dkt. 3-3, Dec. Pennacchia.)

         In November of 2015, Petitioner requested SAPH’s return through a Hague Convention Application filed with the Central Authority in Italy which was forwarded to the United States Central Authority. (Dkt. 3-4, Ex. D.) On December 15, 2015, the United States Central Authority sent a voluntary return letter to the Respondent to which the Respondent’s Italian attorney responded. (Dkt. 3-5, Ex. E) (Dkt. 3-6, Ex. F.) Thereafter, on February 24, 2016, an attorney in Boise, Idaho representing the Petitioner sent a written letter to the Respondent advising that Petitioner would initiate proceedings under the Hague Convention unless Respondent provided assurance that SAPH would be voluntarily returned to Italy. (Dkt. 3-7, Ex. G.) The Respondent replied to that letter by email on March 3, 2016. (Dkt. 3-8, Ex. H.) Respondent and SAPH remain located in Boise, Idaho.

         Petitioner initiated this proceeding on April 26, 2016 by filing a Verified Petition for return of child and for provisional relief pursuant to The Convention on the Civil Aspects of International Child Abduction, done at the Hague on October 25, 1980 (“the Convention”) and the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001 et seq. (Dkt. 1, 3.) Both countries at issue in this matter, Italy and the United States, are signatory nations to the Convention. The Petition requested a Temporary Restraining Order (“TRO”), expedited Preliminary Injunction, and return of SAPH to Italy. (Dkt. 1, 3.) The Court denied the TRO and set an evidentiary hearing on the merits of the Petition. (Dkt. 5, 11, 12.) On the June 29, 2016, the Court held the evidentiary hearing. (Dkt. 12, 28, 29.) The parties have filed their briefing on the Petition and the matter is ripe for the Court’s consideration.


         1. The Convention

         The Convention is a multilateral international treaty on parental kidnaping which provides a civil legal mechanism to parents seeking the return of, or access to, their child. The Convention “was adopted in 1980 in response to the problem of international child abductions during domestic disputes [and] ... seeks to secure the prompt return of children wrongfully removed to or retained in any Contracting State [.]” Abbott v. Abbott, 560 U.S. 1, 8 (2010) (internal quotation marks omitted). The Convention seeks 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 secure protection for rights of access.” Maxwell v. Maxwell, 588 F.3d 245, 250 (4th Cir. 2009) (quoting Hague Convention, pmbl., 19 I.L.M. at 1501) (internal quotations omitted). The objects of the Hague Convention are: (1) “to secure the prompt return of children wrongfully removed to or retained in any Contracting State, ” and (2) “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in other Contracting States.” Hague Convention, art. 1; see also 22 U.S.C. § 9001(a). The Convention applies where a child has been removed or retained away from his or her habitual residence in breach of the custody rights that the petitioner was exercising at the time of the wrongful removal or wrongful retention. See 22 U.S.C. § 9003(e); Hague Convention, art. 3. “The Convention's central operating feature is the return remedy. When a child under the age of 16 has been wrongfully removed or retained, the country to which the child has been brought must order the return of the child forthwith, unless certain exceptions apply.” Abbott, 560 U.S. at 9 (citation and internal quotation marks omitted). This Court’s role in this proceeding is limited to determining the rights under the Convention, not the merits of the underlying custody dispute between the parties. See Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir. 2001) (citing Elisa Pérez-Vera, Explanatory Report ¶¶ 13, 16, in 3 Hague Conference on Private International Law, Acts and Documents of the Fourteenth Session, Child Abduction 426 (1982)); 22 U.S.C. § 9001(b)(4).

         2. The Petition

         Petitioner argues SAPH’s retention in the United States since August of 2015 is wrongful and he seeks SAPH’s return to Italy arguing that Italy is SAPH’s habitual residence and the nation that should hear the underlying custody claim between the parties. (Dkt. 1, 3.) Respondent counters that the Petition should be denied because SAPH’s habitual residence is the United States and, therefore, there has been no wrongful removal or retention in the United States. Respondent also raises several affirmative defenses including that the Petitioner consented/acquiesced to the removal and/or retention of the Child to and in the United States, granting the petition would expose the child to grave risk of psychological harm and/or place the child in an intolerable situation, and the child is of sufficient age and maturity that her opinion should be considered. (Dkt. 13 at 8, ¶¶ A-L.)

         In determining whether the removal or retention of a child is “wrongful” under the Convention, the Court must answer a series of four questions: (1) when did the removal or retention at issue take place (2) immediately prior to the removal or retention, in which state was the child habitually resident (3) did the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual residence (4) was the petitioner exercising those rights at the time of the removal or retention. Mozes, 239 F.3d at 1070.

         The Petitioner bears the burden of proving by a preponderance of the evidence that the Child in question has been wrongfully removed from or retained outside the nation of her habitual residence. See 22 U.S.C. § 9003(e)(1)(A); Hague Convention, arts. 3 and 4. If Petitioner establishes that the removal or retention was “wrongful, ” the Child must be returned unless the Respondent can establish one or more of four defenses: 1) the ICARA proceedings were not commenced within one year of the Child’s abduction; 2) the Petitioner was not actually exercising custody rights at the time of the removal or retention; 3) there is a grave risk that return would expose the Child to “physical or psychological harm” or otherwise place the Child in an “intolerable situation”; or 4) return of the Child “would not be permitted by the fundamental principles ... relating to the protection of human rights and fundamental freedoms.” Blondin v. Dubois, 189 F.3d 240, 245 (2nd Cir. 1999); Hague Convention, arts. 12, 13 and 20. The first two defenses can be established by a preponderance of the evidence; the last two must be established by clear and convincing evidence. Blondin, 189 F.3d at 245-46; 22 U.S.C. § 9003(e)(2).

         This case hinges on the determination of SAPH’s habitual residence.[1] “Determination of ‘habitual residence’ is ‘perhaps the most important inquiry under the Convention.’” Murphy v. Sloan, 764 F.3d 1144, 1150 (9th Cir. 2014) (quoting Asvesta v. Petroutsas, 580 F.3d 1000, 1017 (9th Cir. 2009)). Habitual residence is a mixed question of law and fact, and courts are instructed to “consider the unique circumstances of each case when inquiring into a child's habitual residence.” Holder v. Holder, 392 F.3d 1009, 1016 (9th Cir. 2004). The term “habitual residence” was intentionally left undefined in the Convention to avoid formalistic determinations but the ambiguity has caused some confusion as to how the courts should interpret a child's residence. See Id. at 1015. In the Ninth Circuit, the analytical framework for determining habitual residence is laid out in Mozes. There, the Ninth Circuit recognized that the concept of habitual residence is based on the “settled purpose” to live in a particular place. Mozes, 239 F.3d at 1074. In making this determination, the Ninth Circuit instructs that the Court look to the intentions of “the person or persons entitled to fix the place of the child’s residence.” Id. at 1076 (“The intention or purpose which has to be taken into account is that of the person or persons entitled to fix the place of the child's residence.”). Where, as here, the child at issue has “not yet reached a stage in their development where they are deemed capable of autonomous decisions as to their residence, ” the appropriate inquiry is the subjective intent of the parents. Holder, 392 F.3d at 1016-17. Thus, the Court will ...

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