C. v C. (S.) (Italy 1996) WMH FN1 Trieste Juvenile Court: Chronological No xxx Docket Number xxx ================================================================= Chronological No. xxx Docket No. xxx TRIESTE JUVENILE COURT THE TRIESTE JUVENILE COURT IN CHAMBERS, PRESENT THE FOLLOWING JUDGES: Dr. Alessandra Bottan Griselli President Dr. Anna Maria Assanti Referring Judge Dr. Franca Ammione Honorary Judge Dr. Andrea de Manzini Honorary Judge upon reading the documents regarding the minors, C. C. and A. C., born in New York respectively on 1993 and 1994, residing at NY; issued the following DECREE Upon reading the Juvenile Court decree dated 8 May 1996 which temporarily prohibited M. C. from visiting the minor children, with the purpose of verifying the mother's statements; Upon reading the request and attached documents filed by the father M. C., in order to obtain the return of the minor children, forwarded through the U.S. Central Authority of the Ministry of Justice, Central Office for Juvenile Justice; Upon reading the request of the Public Prosecutor to schedule an hearing pursuant to article 7, paragraph III of Law No. 64 dated 15 January 1994 which ratified the Hague Convention on International Aspects of Child Abduction; WMH FN2 Upon hearing the minors' parents at today's hearing; WHEREAS M. C. deposited a brief at today's hearing in which he explained to have married B. S. on 12 March 1993 in New York; that the marriage soon turned out to be troublesome due to the fact that the wife was extremely disturbed by the difficult conditions of her family of origin; that Mrs. S. had several times attempted to leave the marital house abducting the children; that on 4 April 1996 a particularly serious dispute took place during which the wife assaulted the husband, scratched him and then called the Police and had him arrested; following such a dispute, the wife had abandoned the marital house moving to Italy with the minors; that subsequently, Mr. C. had been dismissed from any charge relating to the above-mentioned dispute; that on 12 April 1996 the New York Family Court ordered that the minors not be removed from the jurisdiction of the Suffolk County and that a subsequent order dated 28 May 1996, granted to the father full custody of the minors. Based on the foregoing, Mr. C. insisted that the children be immediately returned to the U.S. and requested interim custody of the children until the dates of the decision or, as a subordinate option, that the children be given to the care of social services, to avoid the mother possibly removing them from Italian jurisdiction. WMH FN3 During the interrogation, Mrs. B. S. mentioned that the marriage with Mr. C. deteriorated as a result of the husband's continual abuses and as a result of an ancient educational model imposed by the minor's father and grandparents who had already caused terrible consequences on the children; that during the violent dispute of 4 April 1996 she had been seriously hurt by her husband; that the husband had been prohibited to contact the marital house unless accompanied by the police; that she had not contacted the U.S. authorities as she was illegal in the U.S. and was concerned about being expelled from the country; that she had not been notified of the hearing scheduled in the U.S. to discuss the minors' custody, as she was already in Italy at that time. The Public Prosecutor has given his opinion which is favorable to the father's claims. Considering that the minors were living with both parents who had joint custody; that the mother was not allowed to remove them from New York State without the husband's consent or without a judicial order granting her full custody; that on 28 May 1996 the New York Family Court entrusted the father with full custody over the children and that the father, M. C., has started divorce proceedings; considering that the father's request has been regularly and duly filed (Art. 12 of the Convention); considering that the mother arbitrarily abducted the minors from the father who at the time of the removal had full custody; that the mother could not provide any evidence of the situations mentioned in Art. 13 of the Convention and that she has not provided evidences that the children could suffer any prejudice if returned to U.S.; considering that the Court believes that there are no sufficient grounds to adopt interim measures; in fact there are no support evidences of the father's concern that the mother could leave Italian jurisdiction (as Mrs. S. lives in Aviano where she is also working); WMH FN4 for the above reasoning joining the Public Prosecutor request: pursuant to article 7 and following of Law No. 64 dated 15 January 1994 which ratified the Hague Convention on the International Aspects of Child Abduction ORDERS that the minors C. C. and A. C., born in New York (U.S.A.), respectively on 1993 and 1994, be immediately returned to the U.S.A. deliver the file to the Public Prosecutor for the enforcement of the decree pursuant to art. 7 of Law 64/94 and immediately informs the Central Authority accordingly. Service of process care of the Court Clerk. Trieste, 18 September, 1996 (signed) The President Filed with the Court Clerk on September 24, 1996 Copy certified as true on September 24, 1996 FOOTNOTES BY WM. M. HILTON -------------------- 1. Contributed by Roberta Ceschini, of Sinisi Ceschini Mancini & Partners in Rome, Italy. Ms. Ceschini made the following comment: "The difference with respect to the Austin Case (BBS ID: AUSTIN.ITL) was definitively in the Court Judges: the Judges in Trieste made a very through and objective analysis of the case and appeared to be aware of how The Convention works. On the contrary, the Venice Judges in the Austin case did not have any idea of the real purpose of The Convention and made a decision based on feelings received during the parties interrogation." 2. The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 Oct 1980 [The Convention] 3. This would be similar to requesting a Warrant in Lieu of a Writ of Habeas Corpus. (BBS ID WARLUWRT.HAG) 4. The issues raised by the mother are those that are typical of a "Best Interest" hearing and are best heard in the place where there is evidence of the alleged issues, here New York. This decision follows the rulings of the majority of the Contracting States in refusing to hear the "Best Interest" arguments and refers them back to the children's Habitual Residence. See the Explanatory Report by E. Perez-Vera, Hague Conference on Private International Law, Actes et documents de la Quatorzieme session, vol. III, 1980, p. 426 (Perez-Vera Report, paragraph 34.