Guzzo v. Cristofano
719 F.3d 100
| 2d Cir. | 2013Background
- Father Guzzo, Italian citizen, and Mother Cristofano, US citizen, had a bi-continental marriage with the child born in 2006.
- From 2006–2007 the parents lived between Italy and New York, intending the child to live primarily in Italy with periodic return to New York.
- In May–June 2009 they executed a Separation Agreement providing for custody with the Mother, schooling in New York, and a visitation schedule including two months yearly in Italy.
- Mother subsequently moved to Italy with the child; she testified the move was tied to reconciliation but she planned the child would start kindergarten in New York.
- In Nov 2010 Mother took the child to New York intending not to return to Italy; by Jan 2011 she moved back to Italy, and in Aug 2011 she returned with the child to New York where they have lived since.
- Father filed Hague Convention petition in Oct 2011 alleging wrongful removal; district court held the child’s habitual residence was the United States and denied relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Italy was the child’s habitual residence | Guzzo; Italy as habitual residence via shared intent to move. | Cristofano; no change in habitual residence; remained in the US. | No; child remained habitually resident in the United States in 2009. |
| Whether the child became habitually resident in Italy by August 2011 | Acclimation to Italy despite lack of shared intent to move back. | No acclimation; shared intent not established to change habitual residence. | Not decided on appeal; first-step finding adverse to change stands; lifelong acclimation waived. |
| Two-step Gitter analysis: shared intent vs acclimation | Child acclimated to Italy; step-two possible despite no shared intent. | No preserved acclimation argument; insufficient evidence of change in habitual residence. | District court not clearly erroneous on step-one; second step waived. |
| Appropriate standard of review for habitual residence determinations | Seeking de novo review of legal standard with factual undertones. | Preserveability and mixed questions of law/fact require deferential review of district findings. | Applying mixed standard; habitual residence is a fact-intensive legal question, reviewed de novo for the ultimate issue. |
Key Cases Cited
- Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005) (two-step framework for habitual residence; parental intent and acclimation guide analysis)
- Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) (acclimation concept; flexible framework; emphasized importance of settled purpose)
- Holder v. Holder, 392 F.3d 1009 (9th Cir. 2004) (acclimation consideration crucial to habitual residence inquiry)
- Chafin v. Chafin, 133 S. Ct. 1017 (2013) ( Hague Convention principles; prompt return to habitual-residence country)
- Mota v. Castillo, 692 F.3d 108 (2d Cir. 2012) (burden on petitioner to prove habitual residence by preponderance)
- Whiting v. Krassner, 391 F.3d 540 (3d Cir. 2004) (age of child affects weight given to parental intent in habitual-residence analysis)
- Rydder v. Rydder, 49 F.3d 369 (8th Cir. 1995) (notes no real distinction between habitual and ordinary residence)