Ermini v. Vittori
758 F.3d 153
| 2d Cir. | 2014Background
- Italian parents Emiliano Ermini and Viviana Vittori moved with their two sons (Emanuele and Daniele, age 9, autistic) to New York in 2011 to obtain ABA-based therapy for Daniele; family leased a house, enrolled the children in school, and planned to stay at least 2–3 years.
- A December 2011 violent incident in New York led to criminal charges against Ermini, a state protective order in favor of Vittori and the children, and a one-year protection term after a guilty plea resolving the charges.
- In September 2012 an Italian court in Velletri ordered the children returned to Italy; the Rome Court of Appeals later (April 2013) vacated parts of that order, granted Vittori exclusive custody, and declined to require return while the U.S. protection order remained in effect.
- Ermini filed a Hague Convention petition in U.S. district court (seeking return as wrongful retention from Italy). The district court found the children were habitual residents of Italy and that Vittori breached Ermini’s custody rights, but denied return on Article 13(b) grounds: (1) Daniele would face grave risk from separation from his intensive CABAS/ABA program and (2) returning would separate loving siblings and expose them to risk from Ermini’s history of domestic violence. The district court denied the petition without prejudice to renewal.
- The Second Circuit affirmed denial of return, holding (a) clear-and-convincing evidence supported Article 13(b) grave-risk findings both for Daniele’s loss of therapy and for domestic violence, and (b) the district court erred to deny without prejudice and amended the judgment to deny with prejudice.
Issues
| Issue | Ermini (Plaintiff) | Vittori (Defendant) | Held |
|---|---|---|---|
| Habitual residence of the children | United States had not become habitual residence; move was temporary/conditional (Italy remained habitual residence) | Move showed settled purpose to reside in U.S.; habitual residence possibly changed | Court expressed doubt about district court’s Italy-finding but assumed it for decision; did not rest decision on habitual residence |
| Wrongful retention / custody rights under Italian law | Vittori breached Ermini’s custody rights by keeping children in U.S. after Velletri order | The Rome Court of Appeals and Italian orders meant Vittori did not breach custody rights | Court accepted district court’s wrongful-retention finding for purposes of appeal but noted serious doubts about reliance on Rome Order; decision affirmed on other grounds |
| Grave risk from domestic violence (Article 13(b)) | Domestic violence did not independently preclude return | Vittori: domestic abuse history caused real, probable, and severe risk to children | Proven by clear and convincing evidence: sustained pattern of abuse and children’s fear constituted grave risk; independent basis to deny return |
| Grave risk from interruption of ABA therapy (Article 13(b)) | Loss of therapy would not rise to Convention’s “grave risk” threshold | Daniele’s specialized program loss would cause severe, probable psychological/physical harm and regression | Proven by clear and convincing evidence: credible expert testimony showed high probability of severe regression and loss of independent functioning; independent basis to deny return |
| Remedy / finality: denial with or without prejudice | Petition should remain subject to renewal if facts change | Convention requires a final determination; district court erred to leave denial without prejudice | Denial amended to be with prejudice; Convention precludes prospective, conditional rulings awaiting future events |
Key Cases Cited
- Blondin v. Dubois, 238 F.3d 153 (2d Cir. 2001) (standards for Hague Convention defenses and appellate review)
- Blondin v. Dubois, 189 F.3d 240 (2d Cir. 1999) (Hague Convention procedures; expeditious return focus)
- Souratgar v. Lee, 720 F.3d 96 (2d Cir. 2013) (grave-risk standard; abuse and probability/severity requirements)
- Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005) (habitual residence analysis — shared intent and temporary vs. settled purpose)
- Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) (emphasis on parents’ settled purpose in habitual-residence inquiry)
- Whiting v. Krassner, 391 F.3d 540 (3d Cir. 2004) (limited-duration moves can still change habitual residence)
- Air France v. Saks, 470 U.S. 392 (1985) (weight to foreign interpretations in treaty construction)
- Chafin v. Chafin, 133 S. Ct. 1017 (2013) (importance of expeditious resolution under Hague Convention)