13‐2025‐cv(L) Ermini v. Vittori

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2013

(Argued: April 9, 2014 Decided: July 8, 2014)

Docket Nos. 13‐2025‐cv(L), 13‐2199 (XAP)

EMILIANO ERMINI

Petitioner‐Appellant‐Cross‐Appellee,

– v. –

VIVIANA VITTORI

Respondent‐Appellee‐Cross‐Appellant.1

1 The Clerk of Court is directed to amend the caption in this case to conform to the listing of the parties above.

1

Before: CALABRESI, CABRANES, and LIVINGSTON, Circuit Judges.

Emiliano Ermini, an Italian citizen, petitioned the district court

(Swain, Judge) pursuant to the Hague Convention on the Civil Aspects of

International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11, 670, 1343

U.N.T.S. 89, reprinted in

(Mar. 26, 1986) (the “Hague

Convention” or the “Convention”), as implemented in the United States by

the International Child Abduction Remedies Act, 42 U.S.C. § 11601‐10,

seeking the return of his two sons to Italy, from their mother Viviana

Vittori, in the United States. The district court held that return would pose

a “grave risk” of harm, pursuant to Article 13(b) of the Convention, to one

of the sons, who has severe autism, and that separating the siblings would

pose a grave risk of harm to both of them. It therefore denied appellant’s

petition as to both children. Confronting various issues of first impression

in this Circuit, we affirm the district court’s decision to deny the petition.

We also amend the judgment to deny the petition with prejudice.

ROCCO LAMURA, Tosolini Lamura Rasile & Toniutti LLP, New York, New York, for Petitioner‐Appellant‐Cross‐Appellee.

2

SANKET J. BULSARA (Jacob Press, Tamar Kaplan‐Marans, Maria Banda, Jing‐Li Yu, Musetta Durkee, on the brief), Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York, for Respondent‐Appellee‐Cross‐ Appellant.

Gary S. Mayerson, Tracey S. Walsh, Maria C. McGinley, Mayerson & Associates, New York, New York, for Amicus Curiae Autism Speaks.

Jeremy T. Adler, Davis Polk & Wardwell LLP, New York, New York, for Amicus Curiae Travis Thompson, Ph.D. and Paolo Moderato, Ph.D.

Anthony S. Barkow, Elizabeth A. Edmondson, Eddie A. Jauregui, Jenner & Block LLP, New York, New York, for Amicus Curiae Jacqueline Sands.

Gregory J. Wallance, W. Stewart Wallace, Susanna Y. Chu, Kaye Scholer LLP, New York, New York, for Amicus Curiae Professor Elizabeth Lightfoot, Sanctuary for Families, and Child Justice, Inc.

Robert H. Smit, Simpson Thacher & Bartlett LLP, New York, New York, for Amicus Curiae Domestic Violence Legal Empowerment and Appeals Project, The Family Violence Appellate Project, and Professors Shani M. King and Lisa V. Martin.

3

CALABRESI, Circuit Judge:

This case presents us with novel, and significant, issues under the

Hague Convention on the Civil Aspects of International Child Abduction,

Oct. 25, 1980, T.I.A.S. No. 11, 670, 1343 U.N.T.S. 89, reprinted in

(Mar. 26, 1986) (the “Hague Convention” or the “Convention”), as

implemented in the United States by the International Child Abduction

Remedies Act, 42 U.S.C. § 11601‐10. While the Convention is designed, in

part, to ensure the prompt return of children wrongfully removed or

retained from their country of habitual residence by one parent, it also

protects children who, though so removed or retained, face a real and

grave risk of harm upon return. Here, we are confronted with forms of

psychological and physical harm arising from separating a child from

autism therapy. The question of whether the risk of such harms is

sufficiently grave to trigger the Convention’s exceptions has not been

previously considered by our Court. We today hold that such risk can be

sufficiently grave, and, on the facts found by the district court, that in this

case it is. For this reason, and another, we affirm the district court’s denial

of the appellant’s petition.

4

We also face, as a matter of first impression, the district court’s

decision to deny the petition without prejudice to renewal. We hold that

this was error, and amend the judgment to deny the petition with

prejudice.2

I.

Emiliano Ermini and Viviana Vittori are Italian citizens. They began

living together in Italy in 2001, and were married in 2011. The couple had

two children: Emanuele, who is 10, and Daniele, who is 9. Daniele is

autistic. In the midst of a custody dispute, Ermini petitioned the district

court pursuant to the Hague Convention, a multilateral treaty to which the

United States and Italy are signatories, seeking the return to Italy of his

two sons, who were then, and today remain, in the United States.

2 Several motions are pending before the Court. Vittori moves for the Court to take judicial notice of documentation regarding changes in her, and her children’s, immigration status. Ermini moves for the Court to take judicial notice of a foreign court decision from Velletri, Italy, dated April 23, 2013. Pursuant to Federal Rule of Evidence, sections 201(b)(2), (c)(2), and (d), we grant both motions. In addition, several parties, all listed above as amicus curiae, had moved for leave to file their briefs. Pursuant to Federal Rule of Appellate Procedure 29(b), we grant their motions, and hence have listed them above. 5

Ermini filed his petition in August of 2012, and the district court

conducted a bench trial in January of 2013. Under Federal Rule of Civil

Procedure 52(a), on April 19, 2013, the district court produced an opinion,

which contained its findings of fact and conclusions of law, and issued its

judgment. Ermini v. Vittori, No. 12 Civ. 6100,

(S.D.N.Y.

Apr. 19, 2013).

A.

The district court found several facts that are relevant to the matter

before us. First, the court found that the family had moved to the United

States in August of 2011 in connection with its longstanding efforts to find

appropriate treatment for Daniele. Id. at *4. Daniele had been diagnosed

with autism in March of 2008, and the couple sought unsuccessfully to find

adequate Applied Behavioral Analysis (“ABA”) therapy for Daniele in

Italy.3 Id. at *2. Indeed, while there, Vittori herself provided the bulk of

Daniele’s therapy. Id.

3 ABA is an “intensive one‐on‐one therapy that involves breaking down activities into discrete tasks and rewarding a childʹs accomplishments.” R.E. v. New York City Depʹt of Educ.,

(2d Cir. 2012) (internal quotation marks omitted). ABA instructors use “careful behavioral observation and positive reinforcement or prompting 6

Dissatisfied with Daniele’s development, the family sought other

avenues of relief.

In Spring of 2010, in Italy, they met Dr. Giuseppina

Feingold, an Italian‐speaking doctor with a practice in Suffern, New York.

Id. at *3. In August of 2010, they traveled to New York so that Dr. Feingold

could more fully assess and begin treating Daniele. Id. The parents were

impressed with the treatment options presented by Dr. Feingold, and

began to plan a move to Suffern, at first for a period of two‐three years, but

with the potential of a permanent relocation in mind, depending on the

success of Daniele’s treatment. Id.

Things moved speedily thereafter. The family returned to New York

in August of 2011, and promptly signed a one‐year lease on a house. Id. at

*4. The children were enrolled in public schools, and Daniele’s therapy

began soon after. Id. at *8‐9. The parents put their home in Italy on the

market, prepared to open a business in the United States, and made

arrangements to send their belongings here. Id. at *4.

to teach each step of a[n appropriate] behavior.” M.H. v. New York City Depʹt of Educ.,

, 226 n. 5 (2d Cir. 2012) (internal quotation marks omitted). 7

In the meantime, Ermini, who had remained employed in Italy,

traveled back and forth between the United States and Italy.

During a

December of 2011 return to America, an apparently already contentious

relationship between Ermini and Vittori came to a head when a “violent

altercation” occurred, with Ermini physically abusing Vittori in the kitchen

of their Suffern, New York home. Id. at *5. In its findings of fact, the district

court found credible testimony that during this altercation Ermini had,

among other acts, hit Vittori’s head against a kitchen cabinet, and

attempted to “suffocate” and “strangle” her. Id.

The district court determined this incident was part of a history of

physical violence by Ermini. Id. The court found that Ermini “expresses

anger verbally and physically,” had hit Vittori at least ten times during the

course of their relationship, and was “in the habit of striking the children.”

Id.

In response to the December of 2011 incident, Vittori obtained a

temporary order of protection from the Suffern Court of Justice for herself

and the children. The order, among other things, granted her temporary

custody of the children through May 9, 2012. Id. at *6.

8

Ermini returned to Italy and instituted divorce proceedings. Id.

Vittori went back to Italy for those proceedings in April of 2012, by which

time the children’s American visas had expired. Id.

Meanwhile, in July of 2012, Ermini resolved criminal charges that

had been brought against him as a result of the December of 2011 domestic

abuse incident by pleading guilty in New York State court to harassment

in the second degree. Id. at *7. As a part of that plea, he consented to a one‐

year order of protection, which, among other things, required him to

refrain from contacting the children. Id.

In September of 2012, Ermini petitioned an Italian court in Velletri

for an order directing Vittori to return with the children to Italy. Id. The

court in Velletri granted Ermini’s petition, ordering Vittori to return with

the children, and making various rulings granting shared parental

authority between Ermini and Vittori and assigning visitation rights. Id.

In April of 2013, however, the Court of Appeals in Rome issued an

order (the “Rome Order”) vacating several provisions of the Velletri

court’s order. Id. The Court of Appeals granted Vittori exclusive custody of

the children, did not require her to return to Italy with the children, and

9

explicitly fashioned its order to comport with the orders of protection

issued in the United States arising from the December of 2011 domestic

abuse incident. Id.

With this background in mind, the district court made several

further findings of fact about the children and their experiences. Emanuele,

who had testified before the court in camera, was found to have displayed

“candor” and “maturity,” as well as a strong command of the English

language. Id. at *8. He was happy in America, and preferred living here,

both because of the “fear” he had of his father and because he preferred

the schooling he was receiving here. Id.

Moreover, the district court found that Daniele had “significantly

progressed” with his therapy in the United States. Id. He was engaged in a

Comprehensive Application of Behavioral Analysis to Schooling

(“CABAS”) program in Stony Point, New York, which, according to

Vittori’s expert, Dr. Carole Fiorile, offered the best ABA curriculum then

available to autistic children. Id. at *9. The program involved one‐on‐one

instruction with an educational team, including a special educational

10

teacher, an occupational therapist, a speech and language therapist, several

classroom assistants, and a full‐time one‐on‐one teaching assistant. Id.

The district court noted that Dr. Fiorile had stated that Daniele

required such a program to continue to make meaningful progress in,

among other things, cognition, language, and social and emotional skills.

Id. Dr. Fiorile had also testified that while the United States has over 4,000

board certified ABA practitioners, there were, to her knowledge, fewer

than twenty in Italy. Id.

The district court, weighing Dr. Fiorile’s opinion about the CABAS

program, made the following additional factual findings:

[Daniele] has benefitted immensely from the superior resources of the school program in which he has been enrolled while residing in the United States. The CABAS program, with its structured, intensive curriculum and extensive classroom support, provided by professionals, has resulted in marked improvement of [Danieleʹs] self‐care, communication, vocabulary in English and Italian and his general cognition . . . . The unrebutted testimony of Dr. Fiorile at trial and her expert report support the conclusion that “any hope for [Daniele] to lead an independent and productive life rests in his participation in an intensive behavioral program that rigorously implements the principles and strategies of Applied Behavior Analysis (ABA),

11

such as the school program he currently attends on a daily basis.” The hard work and good intentions of [the parents] are not sufficient to enable [Daniele] to progress to the extent to which he is capable. Moreover, there was no evidence presented at trial that any comparable program is even available to [Daniele] in Italy. Accordingly, separating [Daniele] from the CABAS program . . . would put him in an intolerable situation due to the grave risk of deterioration of his condition and denial of needed rehabilitation.

Id. at *9 (internal citation and brackets omitted).

Finally, the district court found that Daniele and Emanuele have a

close, loving relationship, and that the children and Vittori had overstayed

their visas and had applications for renewal pending.4 Id. at *10.

B.

Based on these factual findings, the district court drew several

conclusions of law. First, in order to determine if the children were indeed

removed from their habitual residence, and therefore whether the Hague

Convention applied, the district court considered whether their habitual

residence was Italy or the United States. Id. at *11‐12. The court found that

4 Although it ultimately does not affect our conclusions, we take judicial notice of the fact that Vittori and the children now have nonimmigrant status as U‐Visa eligible noncitizens. See footnote 1. 12

the children’s habitual residence was Italy, since there was no shared,

settled intent among the parents to change permanently the children’s

habitual residence to the United States. Id. at *12. The court also concluded

that the children had not sufficiently acclimatized to the United States as to

make the United States their habitual residence regardless of the parents’

shared intent. Id. at *12‐13.

The district court next considered whether Vittori had wrongfully

retained the children in the United States. Id. at *13‐15. Taking judicial

notice of the law of Italy, pursuant to Article 14 of the Convention,5 the

court explained that custody rights were defined by “mutual agreement”

and that the parents had not mutually agreed to keep the children in the

United States beyond April of 2012. Id. at *14. The court also determined

that Ermini had not evinced any intent to abandon the children or to

relinquish his custody rights. Id. Furthermore, the court found that while

the Rome Order held that Vittori had custody and needed not return the

children to Italy, the Rome Order was temporary and prospective. Id. at

5 The Convention authorizes the district court to “take notice directly of the law of, and of judicial or administrative decisions” of the country of habitual residence. Hague Convention, art. 14. 13

*15. The court therefore found that Vittori had violated Ermini’s custody

rights during the period between September of 2012, when the Velletri

court issued its ruling, and April of 2013, when the Rome Order was

issued. Id.

As a threshold matter, the district court therefore held that Ermini

had proved by a preponderance of the evidence: (1) that the children were

habitual residents of Italy, and were being retained in the United States by

Vittori; (2) that the retention was in breach of Ermini’s custody rights

under the law of Italy; and (3) that Ermini was exercising those rights at

the time of the childrenʹs retention in the United States. Id. at *12‐15.

The district court explained that the burden then shifted back to

Vittori to assert affirmative defenses against the return of the children to

the country of habitual residence. Id. at *15. On one of these defenses, the

court ruled in Vittori’s favor. Vittori had argued that return to Italy posed

a “grave risk” of harm to Daniele, pursuant to Hague Convention, Article

13(b), which precludes repatriation of a child where there “is a grave risk

that his or her return would expose the child to physical or psychological

harm or otherwise place the child in an intolerable situation.” Id. at *15.

14

Vittori needed to prove this defense by clear and convincing

evidence, a burden which the district court held that Vittori had met. Id.

The record, according to the district court, established that, because

Daniele is severely autistic, he would face a grave risk of harm if he had to

return to Italy, as the return would “severely disrupt and impair his

development.” Id. at *16. The court further concluded that Daniele would

face “significant regression” if his CABAS program was interrupted and

held that “the predicted deterioration in [Daniele ʹs] cognition, social skills

and self‐care if [Daniele] is separated from the CABAS program . . .

constitutes psychological and physical harm sufficient to establish the

‘grave risk of harm’ affirmative defense.” Id. The court also determined

that because Emanuele and Daniele had a loving and close relationship,

separation would be harmful to both siblings, and that avoiding such a

separation met the requirements of the Hague Convention. Id. at *17.

Accordingly, the court denied Ermini’s petition for return to Italy as

to both children, but did so “without prejudice to renewal if [Daniele] is no

longer able to participate in the CABAS program and the Italian court

system issues a final order requiring the return of the children to Italy.” Id.

15

C.

Ermini appeals the district court’s decision, arguing that the court’s

conclusion that Daniele faced a “grave risk” of harm under Article 13(b) if

separated from his therapy and returned to his habitual residence in Italy

was erroneous. Vittori contends, to the contrary, that the district court’s

decision to deny the petition should be affirmed on this ground and

others. She also cross‐appeals, claiming, among other things, that the

district court wrongly determined: (a) that the children’s habitual

residence was Italy; (b) that she had breached Ermini’s custody rights; and

(c) that the domestic abuse suffered by her and the children did not

constitute a grave risk of harm under the Convention. Vittori further

maintains that the petition should have been denied with prejudice to

renewal.

In considering the parties’ arguments, we review de novo the district

court’s interpretation of the Hague Convention. Blondin v. Dubois (Blondin

IV),

(2d Cir. 2001). The district courtʹs factual findings are

reviewed for clear error, while its application of the Convention to its

factual findings is reviewed de novo.

16

II.

The Hague Convention is a pact among nation‐states to protect

children in limited, though important, circumstances. It establishes

uniform standards, on one side, for ensuring the swift return of children

wrongfully removed or retained from their home states, and, on the other,

for barring return to a home state when doing so would create a grave risk

of harm to the children or violate their fundamental human rights and

freedoms. See Hague Convention, arts. 13 & 20.

The Convention was adopted in 1980 “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 to secure protection for rights of

access.” Hague Convention, pmbl., 51 Fed. Reg. at 10498. The Convention

is not designed to adjudicate custody claims, but only to determine the

merits of claims of wrongful removal and abduction. See id., art. 19 (“A

decision under this Convention concerning the return of the child shall not

be taken to be a determination on the merits of any custody issue.”).

17

The district court had authority to adjudicate the matter in the

instant case, see id. arts. 8, 11 & 29, and had to focus, as initially, on

whether the children were wrongfully removed or retained, an issue on

which Ermini bore the burden of proof by a preponderance of the

evidence. See

(e)(1)(A).

Under the Convention, removal or retention of a child is deemed

“wrongful” when:

[1] it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

[2] at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

Hague Convention, art. 3.

Wrongful removal or retention, however, does not end the matter. If

a parent establishes that the removal or retention was wrongful, the child

is to be returned unless the defendant establishes one of four defenses. See

Blondin v. Dubois (Blondin II),

(2d Cir. 1999); see also 42

(a)(4). These defenses, or as they are also called,

“exceptions,” are to be construed narrowly. See

(a)(4).

Two of the four exceptions are to be established by clear and

convincing evidence. See

§ 11603(e)(2)(A). The first applies if “there is a

grave risk that [the childʹs] return would expose the child to physical or

psychological harm or otherwise place the child in an intolerable

situation.” Hague Convention, art. 13(b). The second governs when the

return of the child “would not be permitted by the fundamental principles

. . . relating to the protection of human rights and fundamental freedoms.”

Id., art. 20. The remaining exceptions are to be established by a

preponderance of the evidence. See

(e)(2)(B). The first

exception subject to this lesser standard applies if judicial proceedings

were not commenced within one year of the childʹs abduction and the

child is well‐settled in the new environment. Hague Convention, art. 12.

The second applies if the plaintiff was not actually exercising custody

rights at the time of the removal.

art. 13(a).

Finally, it should be noted that, since the Convention is a pact

among nation‐states, Congress has emphasized “the need for uniform

19

international interpretation of the Convention.”

(b)(3)(B).

In light of this necessity, the Supreme Court has made clear that, in

interpreting the Convention, we are to give the opinions of our sister

signatories “considerable weight.” Air France v. Saks,

,

(1985) (quoting Benjamins v. British European Airways,

(2d

Cir. 1978)) (internal quotation marks omitted).

A.

The Hague Convention does not concern itself with situations where

two parents commit to settle a family in a new location, and where in so

migrating, neither parent breaches the other’s custody rights. Familial

migration across borders is a facet of family life for many, and unless there

is wrongful removal or retention of children from their habitual residence

and breach of custody rights, the Hague Convention is neither concerned

nor involved. The district court found, however, that both wrongful

retention and breach of custody rights had occurred here, thereby

triggering the Convention’s applicability. While we accept the district

court’s factual findings on these matters, the legal issues that apply to

these factual findings are quite complicated. Accordingly, we pause at the

20

outset to note that we harbor serious doubts as to the district court’s

conclusions of law on these issues. And we deem it appropriate to spend

some time on specifying the applicable legal standards.

i.

The district court found that the children’s habitual residence was

Italy, since the parents’ last shared intention was to move the family to the

United States only for a period of two‐three years, and potentially to stay

permanently if Daniele’s therapy was successful. Ermini,

,

at *11‐12. There is, to be sure, some basis for the district court’s decision.

We have before stated that, in determining habitual residence, courts are to

focus on whether a “child’s presence at a given location is intended to be

temporary, rather than permanent.” Gitter v. Gitter,

(2d

Cir. 2005). And the two‐three year trial period here may well have

influenced the district court’s conclusion that this move was temporary.

We have also earlier credited a district court’s finding that a habitual

residence did not change because a move was of a “trial nature” and

“conditional.”

. And here, the district court, again with reason,

focused on the fact that the parents were to reassess their stay in the

21

United States at the end of what appeared to be a trial period. Ermini,

, at *11‐12.

But we stress that the period of time of a move is not the only

relevant factor in the analysis. Indeed, our sister signatories have clarified

that a habitual residence may be established even when a move is for a

“limited period” and indeed “indefinit[e].” Shah v. Barnet London Borough

Council and other appeals, [1983] 1 All E.R. 226, 235 (Eng.H.L). Drawing on

the approach in Shah, the Ninth Circuit has placed emphasis on divining

not just the duration of the move but instead, more broadly, the shared

intent and “settled purpose” of the parents. Mozes v. Mozes,

(2001). As the Third Circuit has stated, when similarly confronted

with a two‐year relocation, “the fact that the agreed‐upon stay was of a

limited duration in no way hinders the finding of a change in habitual

residence. Rather, . . . the parties’ settled purpose in moving may be for a

limited period of time. . . .” Whiting v. Krassner,

(3d Cir.

2004); see also Gitter,

(adopting the “shared intent”

approach). We thus want to emphasize that the time period attached to a

22

move is but one factor in determining, in a fact‐intensive manner, what the

settled intent among the parents was in making the move.6

Accordingly, we believe that the issue at hand was, at the very least,

a closer call than it was framed as being by the district court. In this case,

the family’s move, though indefinite, was not “of a trial nature” or for a

“trial period” as in Gitter, nor was akin to a summer sojourn; the move

indeed evinces a good degree of “settled purpose” and continuity.

. As the district court found, Ermini and Vittori leased a house in

the United States and put their house in Italy on the market; enrolled the

children in school and extracurricular activities in the United States;

planned to open a business in the United States; prepared to move all of

their belongings to the United States; and shifted Daniele’s all‐important

medical care and treatment to the United States. Ermini,

,

at *3‐4. This was a move shared in the parents’ minds not only as one of

6 Along these lines, we also note our skepticism of the district court’s conclusion that Ermini conditioned the family’s relocation to the United States on his continued cohabitation with Vittori and the children, see Ermini,

, at *11‐12, particularly in light of Ermini’s statements that the move was spurred by the desire to secure improved treatment for Daniele, id. at *3. Nevertheless, because we do not rely on the habitual residence inquiry to affirm the district court’s ruling, we need not determine whether this factual finding was made in error. 23

duration, stretching into years, but also formed with an understanding

that the duration could become permanent if Daniele’s treatment was

succeeding. Id. at *4. The facts found by the district court establish, at a

minimum, that the family intended to shift the locus of their family life to

the United States for a span of years. And, given these circumstances, we

are left uncomfortable with the district court’s conclusion that the family’s

habitual residence did not change.

ii.

Nor, as we see it, is it clear that Vittori breached Ermini’s custody

rights. Rights of custody are “rights relating to the care of the person of the

child and, in particular, the right to determine the child’s place of

residence.” Hague Convention, art. 5(a). Custody rights are provided by

“the law of the State in which the child was habitually resident

immediately before the removal or retention.” Id., art. 3(a). The district

court determined, quite properly, that, under Italian law, custody rights

are defined by “mutual agreement” of the parents, and therefore focused

on Ermini and Vittori’s agreement. Ermini,

, at *14; see also

Title IV, Italian Civil Code of Law, Art. 316 (“A child is subject to the

24

authority of its parents until majority . . . or emancipation. The authority is

exercised by both parents by mutual agreement . . . .”).

We have serious doubts, though, as to the court’s reading of the

Rome Order. See Joint App’x at 700‐710. The Rome Order stated that

moving children to the United States had been jointly decided by the

parents. Id. at 702. Furthermore, the Rome Court of Appeals determined

that, under the circumstances, Ermini alone could not decide to remove the

children from the United States. Id. The Rome Court, in reversing the lower

court’s order, declined to order the children to return to Italy, and

awarded custody to Vittori. Id. at 703. It therefore appears to us that the

Rome Order, which focused in part on the New York proceedings against

Ermini for domestic abuse, meant, to the contrary of the Velletri court, that

Vittori had at no time breached Ermini’s custody rights by keeping the

children in the United States.7 This holding inevitably casts doubt on the

7 The Rome Order stated in pertinent part: Another element of fact which is before the Court concerns the protection order to safeguard Vittori and her children issued in the United States against Ermini, ending in February 2014. The existence of such a restrictive measure, at least until it is no longer in effect, precludes shared custody of the children, with custody having to go to the mother, who is the only one of the 25

district court’s conclusion that Vittori violated those rights between the

time of the Velletri judgment and the time of the Rome Order.8 However,

because other grounds exist to affirm the district court’s denial of Ermini’s

petition, we need not address whether we may properly rely on the Rome

Order, which was subject to appeal. See Shealy v. Shealy,

(10th Cir. 2002) (relying on an interim order that was in force at the time a

petition was filed to determine custody rights).

two parents able to take care of them and to make decisions affecting them.

Joint App’x at 703 (emphasis added). The language indicated that, under Italian law, the New York protection order precluded shared custody whenever it was in effect, including the period following the Velletri judgment. 8 Ermini directs our attention to a more recent order of the Velletri court refusing to reissue Italian passports to Daniele and Emanuele, of which we have taken judicial notice. See footnote 1. The order was issued a few days after the district court below issued its decision, and we do not take into account the order’s skepticism as to Daniele’s autism therapy in the United States. Under the Hague Convention, it was the district court that was authorized to make factual and legal determinations about whether removal from the therapy would likely cause physical or psychological harm to Daniele. See Blondin II,

(outlining how the parent who claims the child has been wrongfully removed or retained can make a claim before a district court “of the country to which the children have been taken” to determine whether removal or retention was wrongful). 26

iii.

As noted above, the legal issues surrounding custody rights, and

defining the family’s habitual residence, are complicated. As a result,

while we have doubts about the district court’s conclusions and thought it

important to clarify the governing legal standards, we choose not to

ground our decision on those issues. The case can be resolved, and the

district court’s decision readily affirmed, because we believe—even

assuming arguendo that the children’s habitual residence was in Italy and

that Vittori breached Ermini’s custody rights—that return would be barred

because the children faced a “grave risk” of harm if returned. It is to this

issue that we now turn.

B.

On the assumption that Vittori wrongfully removed and retained

the children, the analysis under the Convention would, nonetheless, not be

finished. As we noted earlier, the Hague Convention establishes defenses

to return, and we hold the “grave risk” of harm defense to be

determinative in this case.

27

i.

The district court found that the risk of harm Daniele faced if

removed from his therapy and returned to Italy was grave enough to meet

the Hague Convention’s standards. We agree. We, however, also hold,

contrary to the district court, that Ermini’s history of domestic violence

towards Vittori and the children was itself sufficient to establish the Hague

Convention’s “grave risk” of harm defense.

We have in the past ruled that a “grave risk” of harm does not exist

when repatriation “might cause inconvenience or hardship, eliminate

certain educational or economic opportunities, or not comport with the

childʹs preferences.” Blondin IV,

. But we have also stressed

that a grave risk of harm exists when repatriation would make the child

“face[] a real risk of being hurt, physically or psychologically.”

The

potential harm “must be severe,” and there must be a “probability that the

harm will materialize.” Souratgar v. Lee,

(2d Cir. 2013).

Domestic violence can satisfy the defense when the respondent

shows by clear and convincing evidence a “sustained pattern of physical

abuse and/or a propensity for violent abuse.”

(internal quotation

28

marks omitted). And we concluded that a “grave risk” of harm from abuse

had been established where the “petitioning parent had actually abused,

threatened to abuse, or inspired fear in the children in question.”

.

Spousal violence, in certain circumstances, can also establish a grave risk

of harm to the child, particularly when it occurs in the presence of the

child. See

at 103‐04 (stating that spousal abuse is relevant insofar as it

“seriously endangers the child”); see also Khan v. Fatima,

(7th Cir. 2012). We have also been careful to note that “[s]poradic or

isolated incidents of physical discipline directed at the child, or some

limited incidents aimed at persons other than the child, even if witnessed

by the child, have not been found to constitute a grave risk.” Id. at 104.

The district court found that Ermini “expresse[d] anger verbally and

physically,” and that he struck Vittori and frequently hit the children.

Ermini,

, at *5. Indeed, the district court determined that

Ermini was “in the habit of striking the children.”

The district court

construed some of the hitting as disciplinary,

but it did not, and could

not, conclude that the hitting was “[s]poradic or isolated.” See Sourgatar,

. The court also found that Vittori testified credibly that

29

Ermini “had hit her at least 10 times during the course of their

relationship.” Ermini,

, at *5. On the question of abuse,

the district court’s findings about the “violent altercation” in the kitchen of

their Suffern residence on December 28, 2011 are particularly troubling.

The court credited both Vittori’s account of having her head “shoved” into

the kitchen cabinets while Ermini attempted to “suffocate” and “strangle”

her, and Emanuele’s parallel account of the events, which both he and

Daniele observed.

The district court also credited Emanuele’s

testimony that he generally feared his father. Id. at *8.9

We believe that these findings by the district court manifestly

establish that Ermini engaged in a “sustained pattern of physical abuse,”

Souratgar,

(internal quotation marks omitted), directed at

Vittori and the children: Vittori was repeatedly struck; as were the

children, whom Ermini was “in the habit” of hitting; and Emanuele

testified to being fearful of his father on the basis of this physical and

9 We additionally note the potential for a heightened adverse impact of the hitting of the children, and of exposure to the abuse that Vittori suffered, on Daniele as an autistic child. See Amicus Br. of Professor Elizabeth Lightfoot et al., 8‐13.

30

verbal abuse. These findings evince a “propensity” for violence and

physical abuse and a resulting fear in the children.

. We therefore

hold that the facts found by the district court were sufficient to meet the

Hague Convention’s requirement, by clear and convincing evidence, that

the children faced a “grave risk” of harm because of Ermini’s physical

abuse.10

ii.

The district court found that another “grave risk” of harm existed.

The court held that Daniele faced a grave risk of harm if removed from his

current therapy and returned to Italy. Ermini,

, at *16‐17.

In light of its factual findings,11 we hold that the district court’s conclusion

of law was correct.

10 Normally, this finding alone would not end our analysis. We would next consider, or remand for the district court to consider, the range of remedies that might allow for return of the children to their home country together with protection from the domestic abuse. See Blondin II, 189 F.3d at 248‐49. But, since we also hold that there is a second, independent harm to returning the children, which cannot be ameliorated, such further analysis is not needed here. 11 We note that the opinions and testimony credited by the district court, both about the lack of autism therapy and resources in Italy, and about the harms likely to befall Daniele were he removed from his current program, are sweeping and strong. Whether we, in the district court’s 31

The district court credited the testimony and report of Dr. Fiorile

that, if Daniele were to be removed from his educational program and not

provided promptly with an analogous program, he would face a severe

loss of the skills that he had successfully developed since beginning his

program—including his ability to develop cognitive, linguistic, social, and

emotional skills. Id. at *16, 8‐9. The court further credited Dr. Fiorile’s

conclusion that any “hope for [Daniele] to lead an independent and

productive life” depended on his participation in a program such as the

CABAS program that he attended on a daily basis, and that this particular

program was not available in Italy. Id. at *9. Dr. Fiorile also stated that if

Daniele were to be removed from this program, he would “cease to be able

shoes, would have adopted these factual findings is irrelevant. The standard of review is “clear error” and our “review under the ‘clearly erroneous’ standard is significantly deferential.” Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for Southern Cal.,

(1993). We must accept the trial courtʹs findings unless we have a “definite and firm conviction that a mistake has been committed.”

(internal quotation marks omitted). In light of Dr. Fiorile’s “unrebutted testimony” that Daniele’s hope for “an independent and productive life” rested on his continued participation in the CABAS program, as well as the fact that “no evidence” was presented at trial to support that such a program was available to Daniele in Italy, see Ermini,

at *9, we do not. 32

to learn to write or to talk and w[ould] most likely never learn to read.”

Joint App’x at 320.

This is the first occasion for this Court to consider this kind of

psychological harm pursuant to Article 13(b). We note, however, that

Article 13(b) explicitly lists “psychological” harm and “physical” harm as

appropriate harms for triggering the Convention’s affirmative defenses,

both of which are implicated by a developmental disorder such as autism.

And we hold that the facts as found by the district court lend themselves

straightforwardly to the conclusion that the risk of harm was grave.

First, the district court’s findings established there was a

“probability that the harm w[ould] materialize.” Souratgar,

.

Indeed, the district court credited testimony that does not speak in terms

of probability but instead of near certainty: “if [Daniele] leaves the Stony

Point CABAS program even temporarily, he will face a significant

regression in his skills and [] without such an intensive, structured

program, [Daniele] will not develop the cognitive, language, social,

emotional and independent living skills that he is likely to acquire through

such a program.” Ermini,

, at *16 (emphasis added).

33

Second, the court’s finding that Daniele would lose the ability to

develop cognitive, emotional, and relational skills, and potentially lead an

independent life, if removed from his current therapy and repatriated,

establishes harm of a “severe” magnitude manifestly sufficient to satisfy

the exception. Souratgar,

. The harm, in fact, is of such a

severity that it threatens to strike to the very core of the child’s

development individually and of his ability to participate as a member of

society.

We also note that, in similar circumstances, our sister signatories

have found the risk of harm in removing an autistic child to be sufficiently

grave. See, e.g., J.M.H. v. A.S., [2010] 367 N.B.R. 2d 200 (N.B. Fam. Ct.)

(Can.) (concluding that the risk to the wellbeing of a child who exhibited

signs of autism in removing the child from treatment was sufficiently

grave); DP Commonwealth Cent. Auth., [2001] HCA 39 (High Ct. Austl.)

(finding that a lack of adequate treatment facilities for a child with autism

in his country of habitual residence was a reason for refusing to return the

child).

34

Considering the unrebutted testimony before the district court

concerning the risk of harm Daniele faced if he were returned to Italy, we

have no reason to disturb its factual findings. On the basis of those

findings, we agree with the district court that the very real harms that

Daniele likely would have faced if removed from his therapy and

repatriated satisfy the “grave risk” of harm defense.

Moreover, in light of the children’s close relationship to each other,

and, significantly, the conclusion we reached with respect to abuse, we

determine as well that it was not error for the district court to decline to

separate the children. See Ermini,

, at *17 (“Courts in this

Circuit have frequently declined to separate siblings, finding that the

sibling relationship should be protected even if only one of the children

can properly raise an affirmative defense under the Hague Convention.”).

C.

A final issue confronts us. The district court denied Ermini’s petition

without prejudice to renewal “if [Daniele] is not able to continue with his

current CABAS program and the Italian court system issues a final order

requiring the return of the children to Italy.” Ermini,

, at

35

*17. We amend the judgment to deny Ermini’s petition with prejudice to

renewal, as we believe the district court’s approach—which is, so far as we

can tell, the first such instance of denial without prejudice in a Hague

Convention case—to constitute an error of law, neither justified nor

allowed by the Convention. Since the “proper interpretation of the Hague

Convention is an issue of law,” we review the district court’s decision de

novo. Blondin IV,

(internal quotation marks omitted).

“In interpreting a treaty, it is well established that we begin with the

text of the treaty and the context in which the written words are used.”

Swarna v. Al–Awadi,

(2d Cir. 2010) (internal quotation

marks and alteration omitted). The Hague Convention provides either for

the “return of the child forthwith” if the child is wrongfully removed,

pursuant to Article 12, or for a “determin[ation] that the child is not to be

returned,” pursuant to Article 16. The Convention authorizes these

decisions alone, and stresses the importance of deciding matters

“expeditiously.” See Hague Convention., art. 11. It also explicitly keeps

courts out of deciding, or acting under the Convention, “on the merits of

rights of custody.”

art. 16.

36

Furthermore, as the Hague Conventionʹs Explanatory Report—which

we have construed as being an authoritative and official history of the

Convention proceedings, see Blondin II,

n.5—has explained,

the Convention “is not concerned with establishing the person to whom

custody of the child will belong at some point in the future, nor with the

situations in which it may prove necessary to modify a decision . . . on the

basis of facts which have subsequently changed.” Elisa Perez‐Vera,

Explanatory Report: Hague Conference on Private International Law, in 3 Acts

and Documents of the Fourteenth Session 426 (1980), (“Explanatory

Report”) ¶ 71.

By denying the petition without prejudice to renewal, the district

court allows the parties to call upon future events and engage in

prospective modifications in light of changed facts in precisely the way the

Convention intended to prohibit. As the Explanatory Report shows, the

Convention is concerned with events at a particular moment: it either

requires return or, in light of the risks of harm or other circumstances, it

does not. Once a determination properly applying the Convention to the

facts at hand has been made, all other issues leave the realm of the treaty’s

37

domain. The Convention is not, and cannot be, a treaty to enforce future

foreign custody orders, nor to predict future harms or their dissipation.

See, e.g., Redmond v. Redmond,

(7th Cir. 2013) (“The Hague

Convention targets international child abduction; it is not a jurisdiction‐

allocation or full‐faith‐and‐credit treaty. It does not provide a remedy for

the recognition and enforcement of foreign custody orders or procedures

for vindicating a wronged parentʹs custody rights more generally.”); Mota

v. Castillo,

(2d Cir. 2012) (“[T]he Convention’s focus is

simply upon whether a child should be returned to her country of habitual

residence for custody proceedings.”). Indeed, the Convention stresses the

need for, and importance of, establishing swiftly a degree of certainty and

finality for children. 12 See, e.g., Chafin v. Chafin,

(2013)

(Ginsburg, J., concurring) (“Protraction . . . is hardly consonant with the

Convention’s objectives.”); Blondin II,

n.1 (noting the

necessity that procedural and substantive decision‐making be expeditious

12 Of course, should there be a future Italian custody order, neither parent would be without redress, but that redress would likely come in New York State court, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act,

et seq. 38

so they do not exceed the time that the child can endure the uncertainty of

the process).

For these reasons, we conclude that the Convention did not permit

denial of the petition without prejudice. Accordingly, we order that the

judgment be amended to deny Ermini’s petition with prejudice to renewal.

CONCLUSION

We AFFIRM the district court’s denial of appellant’s petition, and

AMEND its judgment to deny that petition with prejudice.

39