     09-3845-cv
     Poliero v. Centenaro



                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
     RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMM ARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS CO URT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED W ITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (W ITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER
     MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .



            At a stated term of the United States Court of Appeals for the Second Circuit, held at the
     Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 21st day
     of April, two thousand and ten.

 1   PRESENT:
 2               AMALYA L. KEARSE,
 3               ROBERT D. SACK,
 4               DEBRA ANN LIVINGSTON,
 5                                 Circuit Judges.
 6   _______________________________________________
 7
 8   MASSIMO POLIERO,
 9
10                                 Petitioner-Appellee,
11                    v.                                                 No. 09-3845-cv
12
13   BARBARA CENTENARO,
14
15                           Respondent-Appellant.
16   ______________________________________________
17
18                                                JAY S. BERKE , William F. Clarke, Jr. (Skadden, Arps,
19                                                Slate, Meagher & Flom LLP), New York, NY, for
20                                                Respondent-Appellant.
21
22                                                ROBERT D. ARENSTEIN (Law Office of Robert D.
23                                                Arenstein), New York, NY; Allan D. Mantel, Alison
24                                                L. Epilone (Stein Riso Mantel, LLP), for Petitioner-
25                                                Appellee.
 1          Appeal from a judgment of the United States District Court for the Eastern District of New

 2   York (Mauskopf, J., Pollak, M.J.).

 3          UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND

 4   DECREED that the judgment of the district court be AFFIRMED.

 5          On June 23, 2009, Petitioner-Appellee Massimo Poliero filed a petition under the Hague

 6   Convention on the Civil Aspects of International Child Abduction (“Hague Convention”), Oct. 25,

 7   1980, T.I.A.S. No. 22,670, 1343 U.N.T.S. 89, reprinted at 51 Fed. Reg. 10,494 (Mar. 26, 1986), and

 8   the International Child Abduction Remedies Act (“ICARA”), 42 U.S.C. §§ 11601-11611, in the

 9   United States District Court for the Eastern District of New York alleging that his wife, Respondent-

10   Appellant Barbara Centenaro, had wrongfully retained the couple’s children in New York in

11   violation of the Hague Convention and ICARA and seeking the return of the children to Italy. On

12   September 11, 2009, the district court (Mauskopf, J.) adopted the recommendation of the magistrate

13   judge (Pollak, M.J.) to grant the petition, and entered judgment in Petitioner’s favor. Respondent-

14   Appellant appeals. We assume the parties’ familiarity with the remaining facts, procedural history,

15   and issues presented for review.

16          “[I]n order to prevail on a claim under the Hague Convention, a petitioner must establish by

17   a preponderance of the evidence that (1) the child was habitually resident in one State and then

18   removed to or retained in a different State; (2) the removal or retention was in breach of the

19   petitioner’s custody rights under the law of the place of habitual residence; and (3) the petitioner was

20   exercising custody rights at the time of the removal or retention.” Villegas Duran v. Arribada

21   Beaumont, 534 F.3d 142, 147 (2d Cir. 2008); see also Gitter v. Gitter, 396 F.3d 124, 130-31 (2d Cir.

22   2005). Respondent does not challenge the district court’s conclusion that Petitioner satisfied prongs


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 1   (2) and (3), and thus the question in this case is where the children were “habitually resident” prior

 2   to Respondent’s decision to retain them in the United States in July 2009.

 3           A child’s “habitual residence” for purposes of the Hague Convention is a “legal precept that

 4   we review de novo.” Gitter, 396 F.3d at 133 n.8. We review a district court’s factual findings

 5   supporting its conclusion as to the child’s habitual residence for clear error. See id. at 133, 135. We

 6   may affirm on any basis supported by the record, including grounds not relied on by the district

 7   court. See, e.g., Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 405 (2d Cir. 2006).

 8           We set forth the applicable test for determining a child’s habitual residence in Gitter. First,

 9   we inquire “into the shared intent of those entitled to fix the child’s residence (usually the parents)

10   at the latest time that their intent was shared.” Gitter, 396 F.3d at 134. This question can in turn be

11   broken down into two components: whether the parents formed a shared, “settled intention” to

12   “abandon” the child’s previous habitual residence, id. at 132, and whether the parents “have mutually

13   intended that the child acquire a new habitual residence” in a new location, id. at 133; see also

14   Barzilay v. Barzilay, No. 09-2358, 2010 WL 1253732, at *5 (8th Cir. Apr. 2, 2010) (“The settled

15   purpose of a family’s move to a new country is a central element of the habitual residence inquiry.

16   This settled purpose need not be to stay in a new location forever, but the family must have a

17   sufficient degree of continuity to be properly described as settled.” (internal quotation marks and

18   citation omitted)).

19           Generally, once we determine the shared intentions of the parents, we conclude that “the

20   child’s habitual residence, in fact, accords with that parental intent.” Gitter, 396 F.3d at 133.

21   However, the second step of our inquiry requires us to determine whether, “notwithstanding the

22   intent of those entitled to fix the child’s habitual residence, the evidence points unequivocally to the


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 1   conclusion that the child has become acclimatized to his new surroundings and that his habitual

 2   residence has consequently shifted.” Id. This is a difficult test to satisfy, and a child’s habitual

 3   residence will only be found to have “shifted” due to acclimatization, id. at 133, if “the child’s

 4   relative attachments to the [two possible habitual residences] have changed to the point where

 5   requiring return to the original forum would now be tantamount to taking the child out of the family

 6   and social environment in which its life has developed,” id. at 134 (quoting Mozes v. Mozes, 239

 7   F.3d 1067, 1081 (9th Cir. 2001)) (internal quotation marks omitted); see also id. (“[T]he child’s

 8   acclimatization to the location abroad will be so complete” in these cases that “serious harm to the

 9   child can be expected to result from compelling his return to the family’s intended residence.”).

10           We conclude that the facts found by the district court proved by a preponderance of the

11   evidence that the habitual residence of the children in this case was Italy. Therefore, the district

12   court’s conclusion that Respondent wrongfully retained the children in the United States was correct.

13   First, the district court made factual findings that sufficiently demonstrate that the parties at no time

14   formed a shared “settled intention to abandon” Italy as the children’s habitual residence. Gitter, 396

15   F.3d at 132. So far as the record discloses, the parties did not attempt to sell their family home in

16   Vincenza, Italy. The parties maintained their personal belongings and furniture in Italy. The parties

17   leased their two apartments in New York for dates timed to coincide with the school year of the

18   children. For at least the first year of their stay in the United States, the parties also rented their

19   furniture rather than purchase it. Additionally, the parties maintained continuous connections with

20   Italy, even though they did not live there the majority of the year, as the family returned to Italy each

21   year for several weeks at Christmas, as well as for the entire summer of 2008. Finally, the facts

22   found by the district court indicate that the parties did not have a shared intent to remain in the


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 1   United States past the end of the school year in 2009. Petitioner purchased airline tickets for the

 2   entire family to return from New York to Venice on July 1, 2009. The parties appear to have agreed

 3   in early spring 2009 to enroll the children in schools in Italy for the 2009-2010 school year.

 4   Respondent indicated in a March 29, 2009 email to an employee in the family’s apartment building

 5   that the family intended to leave their apartment in Queens on July 1, 2009. We find no clear error

 6   in any of these factual findings, and conclude that they more than adequately demonstrate that,

 7   despite deciding to come to the United States for a relatively lengthy period of time, the parties’ last

 8   shared intent was not to abandon the children’s habitual residence in Italy. Cf. Feder v. Evans-

 9   Feder, 63 F.3d 217, 219, 224-25 (3d Cir. 1995) (concluding that Australia was child’s habitual

10   residence in a situation in which, among other things, the parents put their house in United States

11   on the market and sold various personal items in preparation for moving to Australia, purchased

12   home in Australia, pursued employment in Australia, and arranged for child’s long-term schooling

13   in Australia); see also Maxwell v. Maxwell, 588 F.3d 245, 253 (4th Cir. 2009) (parent did not intend

14   to abandon United States as habitual residence when she left possessions behind after moving to new

15   location, purchased round trip air tickets, manifested an intent to return her child to American school,

16   and maintained local financial accounts, health insurance, and lease and insurance on car in the

17   United States).

18           Second, the district court did not err in concluding that the children had not acquired a new

19   habitual residence in the United States by acclimatizing to the country, notwithstanding their parents’

20   evident intent to remain residents of Italy. The district court concluded that the children, though they

21   had adjusted well to living in New York and expressed some preference for remaining in the United

22   States, had maintained significant connections with Italy throughout their stay in the United States,


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 1   returning to Italy for lengthy periods of time at vacations and remaining in contact with friends and

 2   relatives there. Given these factual findings, drawn largely from the district court’s interviews with

 3   the two older children and which Respondent does not challenge as clearly erroneous, we conclude

 4   that the district court’s further finding that the children’s acclimatization to the United States was

 5   not “so complete that serious harm to the child[ren] c[ould] be expected to result from compelling

 6   [their] return” to Italy, Gitter, 396 F.3d at 134, is likewise not clearly erroneous.

 7           Finally, Respondent contends that the district court abused its discretion in precluding the

 8   introduction of evidence relating to Petitioner’s alleged physical abuse of Respondent. We review

 9   a district court’s evidentiary rulings for abuse of discretion, see Meloff v. N.Y. Life Ins. Co., 240 F.3d

10   138, 148 (2d Cir. 2001), and we “will not reverse unless the district court’s decision was ‘manifestly

11   erroneous.’” United States v. Yousef, 327 F.3d 56, 156 (2d Cir. 2003) (quoting United States v. SKW

12   Metals & Alloys, Inc., 195 F.3d 83, 87-88 (2d Cir. 1999)). We see no abuse of discretion in the

13   district court’s decision to preclude the questioning of Petitioner with regard to alleged physical

14   abuse. First, the district court did hear Petitioner admit that he had in the past hit his wife, and thus

15   any evidence that would have been elicited by further questioning would most likely have been

16   merely cumulative. Second, whether or not Petitioner had engaged in domestic violence was not

17   directly relevant to the question the district court had before it: the habitual residence of the parties’

18   children. Finally, Respondent suffered no prejudice from the district court’s ruling; she argued to

19   the district court that the evidence of domestic violence was relevant to the question of why the

20   family chose to leave Italy for New York in 2007, but Respondent was not precluded from seeking

21   to demonstrate using other evidence that the purpose of the family’s decision was to repair the

22   couple’s troubled marriage.


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1          We have considered Respondent’s remaining arguments and conclude that they are without

2   merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.


                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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