IN THE CIRCUIT COURT, SEVENTH JUDICIAL CIRCUIT, IN AND FOR VOLUSIA COUNTY, FLORIDA CASE NUMBER: 93-11302 FMDL DIVISION 04 IN RE: THE APPLICATION OF: HORACIO GUSTAVO LANZILOTTA, Petitioner, and ROSALIND TOMMASO, Respondent. ______________________________________/ FINAL JUDGMENT ON PETITION FOR RETURN OF CHILDREN THIS CAUSE came on to be heard on August 12, 1993 upon the Petitioner-Father's Petition for Return of Children and Amendment to Petition and Respondent-Mother's Motion to Dissolve Writ of Habeas Corpus. The Petitioner-Father, HORACIO GUSTAVO LANZILOTTA was present and represented by counsel. The Respondent-Mother, ROSALIND TOMMASO was also present and represented by counsel. From the evidence and argument of counsel, the Court makes the following findings of fact and conclusions of law: 1. The Hague Convention: The Petition is brought by the father, HORACIO GUSTAVO LANZILOTTA under the provisions of the Hague convention on the Civil Aspects of International Child Abduction (hereinafter referred to as the "Hague Convention") which provides for the prompt return of children under certain guidelines. To implement the treaty in the United States, Congress passed the International Child Abduction Remedies Act, 42 U.S.C. Sections 11601-11610 (1988). The Convention became effective in the United States on July 1, 1988. 2. Jurisdiction: 42 U.S.C. 11603(a) provides that the Courts of the States and the United States District Courts shall have concurrent original jurisdiction over actions arising under the Convention. Subsection (b) provides, "Any person seeking to initial judicial proceedings under the Convention for the return of a child or for arrangements for organizing or securing the effective exercise of rights of access to a child may do so by commencing a civil action by filing a petition for the relief sought in any court which has jurisdiction of such action, and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed." 3. Section 11603(d) provides that "the court in which the action is brought under subsection (b) shall decide the case in accordance with the Convention. " In accordance with Article 8 of the Hague Convention, the Petitioner applied to the Central Authority in Argentina for assistance for return of the children. The children who are the subject matter of this action are FACUNDO LANZILOTTA, born on June 6, 1987, presently five (5) years of age; and BRENDA LANZILOTTA, born on March 4, 1991, presently two (2) years of age. Pursuant to Article 9 of the Convention, Argentina transmitted the application to the United States Department of State, the designated Central Authority of the United States under the Convention. The Father filed his Petition on less than one year from the date of the children's removal from Argentina. 4. Background Facts: The Petitioner, HORACIO GUSTAVO LANZILOTTA, and the Respondent, ROSALIND TOMMASO, were married on February 1, 1985 in DeLand, Florida. After briefly living in the United States, the parties' moved to Argentina. Neither of the parties' children were born at the time the parties left the United States. The Petitioner is an Argentinean National. The Respondent is an American National. Both the parties' children, FACUNDO LANZILOTTA and BRENDA LANZILOTTA were born in Buenos Aires, Argentina. The children lived in Argentina with their mother and father from the date of their birth until August 29, 1993. 5. Application of the Hague Convention: In deciding whether the Hague Convention applies to the case at hand, the court must make the following determinations: a.) That the Petitioner had a right of custody, either jointly or solely under Argentinean law; b.) That the Petitioner was actually exercising those rights of custody at the time the children were removed from Argentina; c.) That the children were habitual residents of Argentina at their removal; and d.) That the children were "wrongfully removed" from Argentina. WMH FN01 6. Petitioner's Right of Custody: Dr. Jose Carlos Arcagni, an expert witness on the issue of the application of Argentine law WMH FN02 testified that under Argentine law, the Petitioner, as the children's father, has a right to exercise custody, either jointly or solely over the minor children (Article 264 of the Argentina Civil Code). Under Argentine law, the the Petitioner and the Respondent, as the children's parents have a right to choose the location of the children's residence (Article 200 Argentina Civil Code). The Court finds that the Petitioner had a right of custody, either jointly or alone, of said minor children under Argentinean law within the meaning of Articles 3 and 5 of the Hague Convention. WMH FN03 7. Petitioner's Exercise of Custodial Rights: Up through August 29, 1993, the Petitioner was taking care of the children, making decisions relating to their welfare and taking care of their daily needs. The Court finds that the Petitioner was actually exercising his rights of custody within the meaning of the Hague Convention. WMH FN04 8. Habitual Residency: On August 29, 1993, the Respondent removed the children from their home in Buenos Aires, Argentina and took them to the United States. Prior to their removal, the children had been receiving continuous medical care, was attending school, and had frequent contacts with friends and family in Buenos Aires, Argentina. At the time of the removal, the eldest child was in the middle of his school year. In accordance with the Hague Convention, the Court finds that at the time of the removal, the children were habitual residents of Argentina. WMH FN05 9.) Wrongful Removal: The evidence shows that neither the father nor the children had any warning of the Respondent's plan to remove the children from their home in Argentina. The Petitioner testified that on the morning of August 29, 1993, the Petitioner kissed his children, said good-bye to them, and told them that he would see them when returning home from work. The Respondent did not present any conflicting evidence. She testified that she did not advise the Petitioner of her intent to take the children to the United States. The Petitioner never consented to the removal of the children from Argentina. The Court finds that in accordance with Article 3(b) of the Hague Convention, the removal and retention of the children was wrongful and falls within the scope of Article 3 of the Convention. 10.) Exceptions Not Applicable: In accordance with Article 12, once the Court finds that the removal is wrongful, the Hague Convention states that the authority concerned shall order the return of the children forthwith. A Respondent who opposes the return of a child has the burden to establish that one of the exceptions to a mandatory return, as set forth in article 13(b) and 20, must be established by a high standard of proof, clear and convincing evidence, that the exceptions apply. The provision contained in Article 13(b) of the Convention states that the court is not bound to order the return of the child if it finds that there is a grave risk that the child's return would expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation. 11. The Respondent claimed that such return would present a grave risk to the children. There was no evidence presented by the Wife to support her position. The Court finds that the Respondent has failed to prove by clear and convincing evidence that the children will be exposed to a grave risk as defined by the Convention. 12. The Petitioner has requested that the Respondent bear the costs in accordance with his Petition and Amendment to Petition for return of Children. WMH FN06 Upon consideration of the foregoing, it is thereupon: ORDERED AND ADJUDGED: 1. The Petitioner's Petition for Return of Children and amendment to Petition for Return of Children is granted. 2. The Respondent's Motion to Quash Writ of Habeas Corpus is moot as the children have been released from HRS protective care in accordance with this Final Judgment and the Order Directing Release of Children to Petitioner which has been entered in conjunction herewith. WMH FN07 3. The children, FACUNDO LANZILOTTA and BRENDA LANZILOTTA and shall be returned to their home in Buenos Aires, Argentina. 4. The Respondent shall provide to the petitioner the minor children's American and Argentinean passports, birth certificate, authorizations, permits and any and all other documents relating to the minor children's ability to travel to and from Buenos Aires, Argentina. The Respondent also return the minor children's personal belongings to their home in Argentina. WMH FN08 5. The Respondent shall return any and all of the Petitioner's documents including passports, authorizations and documents in relation to the Petitioner residence in the United States. 6. The Court reserves jurisdiction on the Petitioner's request for fees and costs. No further proof shall be required other than Affidavits of Services Rendered by the Petitioner's counsel, and an Affidavit of Costs Expended by the Petitioner. DONE AND ORDERED, in Daytona Beach, Volusia County Florida, this 11th day of October 1993. /s/ Richard B. Orfinger __________________________________ RICHARD B. ORFINGER, Circuit Judge Copies furnished to: Carolyn S. Zisser, P.A. Cynthia L. Catalan, Esquire Carolyn S. Zisser, Esquire Attorneys for Petitioner 302 Third Street, Suite 6 Neptune Beach, Florida 32266 Joseph Alexander Scarlett, III. Esquire Attorney for Respondent 208 West Howry Avenue DeLand, Florida 32720 Footnotes are by William M. Hilton, SYSOP -------------------- 1. Strictly speaking the court does not make a finding that there was a "Wrongful Removal" but instead finds that the children were removed from their habitual residence in derogation of the rights of custody of the left behind parent. This then, under Art. 3, is a "Wrongful Removal". 2. See Arts. 7(e), 8(f), 14 and 15. Art. 8(f) is of particular interest: "a certificate or an affidavit emanating from a Central Authority, or other competent authority of the State of the child's habitual residence, or from a qualified person, concerning the relevant law of that State;" 3. This finding is accord with many rulings under The Convention by other countries, e.g., United Kingdom, Australia, Canada, etc. 4. The burden of proof of the Petitioner on this point is very light. See No. 73 of the Explanatory Report by E. Perez-Vera, Hague Conference on Private International Law, Actes et documents de la Quatorzieme session, vol. Ill, 1980, p. 426. 5. The court quite properly refers to the contacts that the children have with Argentina: Medical Care, Schools, peer reltationships, etc. One could also review the criteria that has been used to find "Significant Connections" under the Uniform Child Custody Jurisdiction Act (UCCJA), 9 Uniform Laws Annotated (ULA) 3(a)(2). It is common ground, of course, that the mere finding of "domicile" of a child in a particular place is not sufficient to show Habitual Residence. 6. See 42 U.S.C. 11607(b)(3) and Art. 26 7. This paragraph implies that, pending a hearing on the merits of the Petition, the children had been picked up and placed in a shelter. This would further imply that the children were picked up prior to the hearing, presumably at the time the Petition was served on the Respondent, in order to prevent the Respondent from further fleeing with the children pending a hearing. See 42 U.S.C. 11604(a) and Art. 7(b). 8. These instructions are quite important and make it eaiser for the children to be returned. In the heat of the proceedings they may be inadvertantly omitted.