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Saturday, June 15, 2013

Italian Children must be returned from New York to Italy since Italy was found to be their habitual residence under the International Child Abduction Remedies Act.

The following is a decision where the 1st Department Appellate Division of New York affirmed the trial court’s  order directing a mother to return her Italian children  to their Italian father pursuant to Hague Convention and the International Child Abduction Remedies Act (ICARA), so that he may return the children to their habitual residence in Italy

The following case is posted for informative purposes only.  The posting of this case does not in any way reflect Marzano Lawyers PLLC’s legal opinion or view on the underlying New York or Italian legal matter. Furthermore, this Italian-New York law firm, nor any New York or Italian attorney or lawyer affiliated with this law firm, did not represent any of the parties in the action.

99 A.D.3d 605

Supreme Court, Appellate Division, First Department, New York.

Riccardo SQUICCIARINI, Plaintiff–Respondent,

v.

Diana OREIRO, Defendant–Appellant.

Oct. 23, 2012.

Opinion

Order, Supreme Court, New York County (Ellen Gesmer, J.), entered on or about March 14, 2008, which, to the extent appealed from as limited by the briefs, granted plaintiff father's motion for an order directing defendant mother to present the parties' two minor children and turn them over to plaintiff for their return to Italy, pursuant to Article 3 of the Hague Convention and the International Child Abduction Remedies Act (42 USC §§ 11601–11611), unanimously affirmed, without costs.

 

Plaintiff, an Italian citizen, and defendant, a United States citizen, resided in Rome, Italy with their two children, Diego, *606 born in New York on July 18, 2006, and Eva, born in Italy on July 26, 2008. The parties separated in March 2010 and maintained shared custody of the children, having agreed upon this arrangement and without a court order to this effect. On November 14, 2011, defendant left Italy with the children and relocated to New York without plaintiff's knowledge or consent.

 

Plaintiff filed a petition in Supreme Court, seeking the return of the children to their habitual residence in Italy where they have lived all of their lives. The petition was properly granted since petitioner met his burden of establishing by a preponderance of the evidence that the children had been wrongfully removed from their country of habitual residence (42 USC § 11603 [e][1][A]; see Gitter v. Gitter, 396 F.3d 124, 130–131 [2d Cir.2005] ). In opposition, defendant failed to satisfy her burden of establishing by clear **183 and convincing evidence that a grave risk of harm to the children would result by their return to Italy (42 USC § 11603[e][2][A] ). Other than the allegations contained in defendant's affidavit, there is no evidence that plaintiff verbally or physically abused defendant. To the contrary, the evidence establishes that the parties had an amicable relationship prior to defendant's departure with the children.

We have considered defendant's remaining contentions and find them unavailing.

Squicciarini v Oreiro, 99 AD3d 605 [1st Dept 2012]

 

The previous case is posted for informative purposes only.  The posting of this case does not in any way reflect Marzano Lawyers PLLC’s legal opinion or view on the underlying New York or Italian legal matter. Furthermore, this Italian-New York law firm, nor any New York or Italian attorney or lawyer affiliated with this law firm, did not represent any of the  parties in the action.

 




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