Case Update (21 Sept 2023): Matter of Luisa JJ v. Joseph II; NY court reverses and remands for trial court to consider arguments against returning a child under the Abduction Convention

The parties are parents to a child, born in 2013. The mother lives in Italy and the father in New York. The parents reached certain agreements as to the custody of their child, and, in November 2022, eventually stipulated to a modified arrangement, filed in Italy, for shared custody with the child residing primarily in Italy and spending extended periods of time in New York. “Shortly after the child’s arrival in New York in December 2022, he disclosed to the father that a minor relative of the mother’s boyfriend, who frequently stayed in the child’s home, had been sexually abusing him for several months. According to the father, the child stated that he told the mother about the abuse, but she did nothing to stop it.” The Italian courts issued some subsequent court orders related to these allegations, including temporary placement of the child with the father. The mother filed a request to return the child to Italy pursuant to the Hague Abduction Convention, in NY state court. The father responded, and asserted two exceptions to return: a grave risk and the mature child’s objection. The father also commenced a proceeding, asking the state court to exercise temporary emergency jurisdiction, to award him temporary legal and physical custody, and to enjoin the child’s return to Italy. The Italian courts issued an order on July 21, 2023 “directing the child be returned to Italy by July 30, 2023” for an evaluation and time with the child’s mother. The mother then wrote a letter to the New York court and asked that the court enforce that Italian order. On July 28, 2023, without any hearing or findings of fact, the New York court ordered the child returned to Italy. The father appealed.

Before the court is the Hague Abduction Convention matter and the father’s request for temporary custody using New York’s temporary emergency jurisdiction provisions in its enactment of the UCCJEA. While Hague matters may proceed “on the papers,” the submissions before the court “raised genuine issues of material fact with respect to both exceptions invoked by the father, warranting a hearing and some assessment of the child’s position.” The New York Supreme Court, Appellate Division, noted that the allegations may make out a colorable argument to not return the child under the Convention, and so a hearing is required. It reversed the order to return the child and remanded for further proceedings.

Note: This case did not discuss the Italian custody orders, or their enforcement. Hague Abduction Convention cases are not enforcement matters. And, the Hague Abduction Convention matter is the action pending before the court, to be decided. Because the Abduction Convention case was ultimately filed in state court (it could have also been filed in federal court), there is a bit of conflation since the same court would presumably be hearing the father’s request for temporary custody.