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Cascio v. Pace

United States District Court, N.D. Illinois

January 16, 2014

Silvestre Cascio, et al., Petitioners,
v.
Rosa Maria Pace, Respondent

Page 857

[Copyrighted Material Omitted]

Page 858

[Copyrighted Material Omitted]

Page 859

For Silvestre Cascio, Azienda Servizi Alla Persona Ambito 9, Plaintiffs: Brett A Barfield, PRO HAC VICE, Holland & Knight Llp, Miami, FL; Adam R Young, Holland & Knight Llp, Chicago, IL.

For Rosa Maria Pace, Defendant: Daniel Aaron Wolf, Marc K. Schwartz & Associates, Buffalo Grove, IL; James T. Zuba, Zuba & Associates, Rockford, IL.

OPINION

FREDERICK J. KAPALA, District Judge.

Page 860

ORDER

Petitioners' motion to take judicial notice [37] is granted. Petitioners' verified petition for return of minor children to Italy [1] is denied. This case is closed.

OPINION

Petitioners, Silvestre Cascio and an Italian public services agency, Azienda Servizi Alla Persona Ambito 9 (" ASP" ), have petitioned this court for return of Cascio's two minor children, FC and MC, who are currently residing in Rockford, Illinois with their mother, respondent Rosa Maria Pace. The petition is brought pursuant to the Convention on the Civil Aspects of International Child Abduction (the " Hague Convention" or " Convention" ). On December 11 and 12, 2013, this court held a two-day hearing on the matter and allowed the parties to submit post-hearing briefs in support of their position. Having considered the testimony and evidence offered at the hearing and the parties' post-hearing briefs, the petition is denied.

I. BACKGROUND

A. The Hague Convention

The Hague Convention was implemented as an international effort to create an effective deterrent to the practice of international parental kidnaping. See In re Polson, 578 F.Supp.2d 1064, 1068 (S.D. Ill. 2008). The Convention " is an anti-abduction treaty," which obligates signatories--including the United States and Italy--to promptly return children to the country of their habitual residence when they are " wrongfully removed to or retained in" another country. Redmond v. Redmond, 724 F.3d 729, 731, 739 (7th Cir. 2013) (quotation marks omitted); see also International Child Abduction Remedies Act (" ICARA" ), 42 U.S.C. § 11601 et seq. (implementing the Hague Convention in the United States and providing both federal and state courts with the authority to enforce it). However, " '[a] Hague Convention case is not a child custody case.'" Redmond, 724 F.3d at 737 (quoting James D. Garbolino, Federal Judicial Center, The 1980 Hague Convention on the Civil Aspects of International Child Abduction: A Guide for Judge, at ix (2012)). " 'Rather, a Hague Convention case is more akin to a provisional remedy--to determine if the child was wrongfully removed or kept away from his or her habitual residence, and if so, then to order the child returned to that nation.'" Id. (quoting Garbolino, supra); see also Walker v. Walker, 701 F.3d 1110, 1116 (7th Cir. 2012) (" The entire purpose of the Convention is to deter parents from absconding with their children and crossing international borders in the hopes of obtaining a favorable custody determination in a friendlier jurisdiction." ). " 'The merits of the child custody case--what a parent's custody and visitation rights should be--are questions that are reserved for the courts of the habitual residence.'" Redmond, 724 F.3d at 737 (quoting Garbolino, supra). Accordingly, the authority of this court pursuant to the petition " extends only to the question whether [the children were] abducted and should be returned" to Italy for a determination of custody or whether the children may remain in the United States during that determination; this court does not " sit to resolve a messy domestic conflict."

Page 861

Norinder v. Fuentes, 657 F.3d 526, 530 (7th Cir. 2011).

B. Factual Background

Much of the factual background pertinent to this order is uncontested. Cascio is a citizen and permanent resident of Italy. Pace, on the other hand, was born in Rockford, Illinois, and has dual U.S. and Italian citizenship. Cascio and Pace met in Italy in July of 1999 and married in late 2000. The children are the result of the marriage, both of whom were born in Italy, and both of whom, according to the parties, have dual U.S. and Italian citizenship.

Between 2000 and 2012, the family lived in Italy, with Cascio providing for the economic needs of the family and Pace acting as a homemaker. In September 2010, Cascio and Pace got into a physical altercation which began with Cascio kicking Pace in her backside and resulted in Pace calling the police. After a police investigation, the matter was referred to the Italian minors court who appointed ASP to monitor and supervise the children, provide support to the parents in parenting skills, and to provide marital mediation between Cascio and Pace. ASP also had to approve, and in turn seek judicial approval of, any decision to move the children. ASP's investigation indicated that, although the parents' relationship was still rife with conflict, the children were well cared for, medically taken care of, happy, and the older child--FC--was academically successful while in Italy. ASP never removed the children from the physical custody of their parents.

During nearly all of the summers between 2000 and 2012, the family vacationed in Rockford, where Pace's mother and extended family lives, for approximately three months at a time. In June 2012, Pace brought the children to Rockford for a summer vacation after informing ASP that she would return on September 2, 2012. Cascio joined Pace and the children on July 27, 2012. The entire family had tickets to return to Italy on September 2, 2012. In late August, Cascio and Pace had an argument in the presence of the children, wherein Pace made it known that she would prefer not to return to Italy, but rather wanted the family to relocate to the United States. Despite that argument, and continued tension for the remainder of the vacation, Pace began packing to return the family to Italy in early September.

From there, the parties' stories begin to diverge. The parties agree that, in the days leading up to September 2, Cascio had several conversations with Alberto Altamore, Pace's cousin and an attorney who lives and works in Rockford, Illinois. Cascio testified that Altamore attempted to pressure Cascio into permitting Pace to remain with the children in the United States and advised Cascio to return to Italy and sell their possessions in order to relocate to the United States. Cascio claimed that Altamore used an " aggressive tone" throughout these discussions. Altamore, on the other hand, testified that he only had one conversation with Cascio on the topic of the family's return to Italy, and stated that he simply discussed his fear that Pace would not be willing to return as he attempted to lay out Cascio's various options. Altamore explicitly denied becoming aggressive with Cascio.

Regardless, on the morning of September 2, 2012, Pace had her mother, Altamore, Nunzio Pace (her brother), and Silvio Bonura (apparently a cousin to both Cascio and Pace notwithstanding their marriage) attend an impromptu meeting where Pace informed Cascio that she and the children would not be returning to ...


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