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FATHER’S OBJECTIONS (EXCEPTIONS) TO THE IMMEDIATE RETURN OF HIS SON TO ITALY PURSUANT TO THE HAGUE CONVENTION SHOULD NOT HAVE BEEN REJECTED; THE EXCEPTIONS RELATED TO ALLEGATIONS THE SON WAS SUBJECTED TO SEXUAL ABUSE BY A MINOR IN MOTHER’S HOME IN ITALY (THIRD DEPT).

The Third Department, reversing Supreme Court, remitting the matter for a hearing, determined father, pursuant to the Hague Convention, had demonstrated the child should not be returned to his mother in Italy based on his allegations he was being sexually abused by a minor who was living with mother and her boyfriend. Therefore, Supreme Court should not have rejected father’s objections (exceptions) to his son’s immediate return to Italy for further proceedings:

… [T]he father’s affidavit reflects that the child made prompt, detailed disclosures of extended sexual abuse experienced in Italy. According to that affidavit, the child also reported that abuse to the mother, who did nothing to intervene or prevent it and instead “forced” the child to continue sleeping in the same bed as the offending minor. As a result, the child has developed a fear of returning to the mother’s custody in Italy. Supreme Court was also provided with a State Police incident report, which reflects that the child made consistent allegations regarding the abuse about a week following his disclosure to the father while interviewed by a child advocate. The submissions further included confirmation of the Italian criminal proceedings against the mother and the boyfriend for not only their alleged failure to prevent the abuse but their facilitation thereof, and there is no information in the record regarding the current status of those proceedings. Accepting these serious allegations as true … , it was an abuse of discretion to summarily reject the father’s first exception. * * *

The affidavit also makes clear the child’s particularized fear of returning to the mother’s custody given that failure and her alleged facilitation of the sexual abuse that he suffered. The record also contained an email exchange regarding the child’s lack of communication with the mother following his disclosure to the father, in which the father describes the child as “a mature smart boy” who was thus being permitted to determine his own communication preferences. Also before the court was the transcript of a telephone call between the child and the mother, in which the child, then nearly 10½ years old, articulately opposed the mother’s efforts to secure his return, citing the mother’s “lies” as to why he is in New York. Although the parties debate the influence each of them has had over the child’s position, any undue influence also presents an issue of fact … . Matter of Luisa JJ. v Joseph II, 2023 NY Slip Op 04699, Third Dept 9-21-23

Practice Point: Here mother demonstrated her son should be returned to her in Italy pursuant to the procedures in the Hague Convention. However father’s objections (exceptions) to his son’s immediate return to Italy based on allegations of sexual abuse by a minor in mother’s home should not have been rejected by Supreme Court. An immediate hearing in Supreme Court was ordered.

 

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