Case Update (12 Aug 2024): Luisa JJ v. Joseph II; minor child returned to Italy after remand by Appellate Division

The parties previously were before the Appellate Division in 2023. The Mother had sought the child’s return to Italy using the Hague Abduction Convention, whereas the Father asserted New York’s temporary emergency jurisdiction. The Appellate Division reversed the Supreme Court’s order to return the child to Italy and remanded for further proceedings, specifically including any exceptions that the Father may argue against the child’s return. The case is now back before the Supreme Court pursuant to (1) Mother’s request “for return of the subject child to Italy” and (2) the Father “requesting that this court exercise temporary emergency jurisdiction” under the NY enactment of the UCCJEA.

The parties are the separated parents of a son born in 2013, and prior to their separation “the parties’ predominant place of residence was in New York State.” When separated in 2019, the “mother took the child to live with her in her home country of Italy under an agreement” that the child was to primarily reside in Italy and then spend a few months with the Father in New York. Starting July 1, 2022, the agreement was for the child to “reside for six months of each year with each parent in that parent’s home country.” The Mother sought to modify the agreement to accommodate the child’s schooling. This prompted the father to file a custody suit in NY in June 2020. That same month, the Mother commenced a custody proceeding in Italy. The parties reached an agreement filed with the Italian Court in November 2022 that “the father’s parenting time with the child was to continue to be limited to a couple months during summers and a few weeks around the holidays,” and was therefore less than the six months under the prior arrangement. The new agreement was never finalized in the Italian court. On December 11, 2022, the child arrived in New York for holiday parenting time, and the Father did not return the child. The Mother commenced a proceeding in New York seeking the child’s return pursuant to the Hague Abduction Convention, and the Father asserted that returning the child would expose the child to a grave risk of harm and that the child is mature and objects to his return. The Father also cross-petitioned seeking temporary emergency jurisdiction and relief. The child was originally ordered returned to Italy, on the papers and without exploration of the Father’s arguments. After the Appellate Division reversed and remanded, this Court took evidence over 8 trial days in person and virtually. The court conducted an in-camera interview of the child on January 4, 2024. The child had an Attorney for the Child, and all parties and the AFC submitted post trial briefing, closings, and proposed findings.

The Supreme Court concluded that the Father did not meet his burden to demonstrate a grave risk of harm. The Father’s claim related to certain interactions between a minor child in Italy and the child at issue, and an allegation that the minor child engaged in some type of sexual misconduct towards the child at issue. But, the overwhelming evidence concluded that the mother was “highly attentive” and even the father testified that he felt “pretty confident that [the child is] not going to sleep in the same bed again with” the Italian minor. The child speaks freely about wanting to return to Italy “albeit on a custody and visitation schedule that appears to align with the father’s desires” and a court-ordered psychological evaluation found the child did not meet the criteria for PTSD. The father’s “contumacious refusal to heed the orders of the Italian courts” “combined with this lackluster efforts to obtain and maintain counseling for the child in the United States” lead the court to discredit the father’s claims. The Supreme Court further determined that the child was not mature enough that the court should account for his views. The Court noted “the child’s inability to plan past obstacles” sharing the child’s failure to recognize that spending six months in each country is a “potentially insurmountable-impediment to his schooling”. The child further had a call with his mother shortly after the father learned of the mother’s Hague filing where the child acted unlike himself “calling her a liar; demanding that she, essentially drop her case; and issuing ultimatums to that effect to her.” The child’s own statements “that he fears that he would be unsafe in Italy is contradicted by his own stated desire to live there for six months out of the year.” Finding it appropriate to return the child to Italy, “it must follow that a New York court’s exercise of emergency jurisdiction is unwarranted.”