Guzzo v. Cristofano

U.S. COURT OF APPEALS, SECOND CIRCUIT
Family Law

New York Law Journal

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Circuit Judge José Cabranes

After their son's birth in 2006, Italian father Guzzo and mother Cristofano maintained their "bi-continental marriage." After signing a separation agreement in May 2009, Cristofano returned to Italy with the boy. In November 2010 Cristofano, intending never to return to Italy, took him to New York. In August 2011, after reconciliation failed, she returned to New York with the boy. District court denied Guzzo the boy's return under the Hague Convention. Discussing Gitter v. Gitter, Second Circuit affirmed. Although the Hague Convention's use of "habitually resident" is not equivalent to "domicile," when parties move abroad temporarily without agreeing to change the child's principal place of residence, a petitioner claiming that the new country became the child's "habitual residence" must show the child "acclimated" to that country. Guzzo did neither. The circuit found the boy not habitually resident in Italy. The evidence supported Cristofano's testimony that her return to Italy with the boy was temporary, and that her willingness to attempt reconciliation in Italy was premised on the understanding that should reconciliation prove unsuccessful, she and Guzzo would abide by the terms of their separation agreement giving Cristafano custody.

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