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Lucia v. Castillo

United States District Court, M.D. Georgia, Athens Division

April 29, 2019

ROBERTO DE LUCIA, Petitioner,
v.
RACHEL MARINA CASTILLO, PEDRO CASTILLO, and MARINA CASTILLO, Respondents.

          ORDER

          CLAY D. LAND CHIEF U.S. DISTRICT COURT JUDGE.

         This action arises under the Hague Convention on the Civil Aspects of International Child Abduction (“Convention”), Oct. 25, 1980, T.I.A.S. No. 11670, and its implementing legislation, the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001, et seq. Roberto De Lucia, an Italian citizen, filed a petition under the Convention seeking the return of his children, R.T.D.L. and N.A.D.L., from the United States to Italy. The children's mother, Respondent Rachel Marina Castillo, is a citizen of Italy and Peru who moved with the children from Italy to Georgia in March 2018.[1] Castillo opposes the children's return. The Court received briefs from the parties and held a hearing on the petition. For the reasons set forth below, the Court grants De Lucia's petition.

         FINDINGS OF FACT

         The Court makes the following findings of fact based on the testimony and exhibits presented at the April 8, 2019 hearing.

         I. Family History

         De Lucia and Castillo began a relationship in Italy in 2010, although they never married. They have two children: R.T.D.L., who was born in November 2012, and N.A.D.L., who was born in August 2014 (“Children”). Both Children were born in Monza, Italy, and their birth certificates list De Lucia as their father. The Children lived with De Lucia and Castillo in Castillo's apartment in Cusano Milanino, Italy, along with Castillo's daughter from a previous relationship, A.M.A. R.T.D.L. attended nursery school and then kindergarten in Cusano Milanino, and N.A.D.L. attended nursery school there. De Lucia works as an administrative employee at a local university, and he earns a salary that is sufficient to provide for himself and the Children.

         II. The Green Cards and Visits to the United States

         Castillo's parents are United States citizens, and De Lucia and Castillo agreed to obtain permanent resident status (“green cards”) for the Children so that they could visit their grandparents easily and ultimately pursue higher education in the United States. When De Lucia agreed to obtain the green cards for the Children, he knew they would have to be present in the United States for some part of each year to maintain the green cards, but he did not agree for them to move to the United States. He believed that the Children would continue to live in Italy until they were old enough to attend college. Each summer, Castillo, A.M.A., and the Children spent approximately two months with Castillo's parents in Athens, Georgia, then returned to Italy for school.

         III. The Separation

         De Lucia and Castillo separated in December 2016. De Lucia moved out of Castillo's apartment and into his parents' house nearby. After De Lucia and Castillo separated, De Lucia and Castillo shared unsupervised custody of the Children, and the Children lived with De Lucia at his parents' house for part of each week. De Lucia and Castillo did not have a formal, court-ordered custody arrangement.

         In 2017, Castillo, A.M.A., and the Children visited Castillo's parents for the summer. In September 2017, Castillo and the Children returned to Italy, but A.M.A. did not. De Lucia told Castillo that he did not want the Children to keep their green cards and that he would not permit the renewal of their passports. In January 2018, Castillo retained a family law attorney to propose a formal custody arrangement. She did not, at that time, take any action to have De Lucia's custody rights altered or terminated. Although De Lucia and Castillo agreed on many points regarding custody and support, De Lucia wanted to require that the Children's green cards be revoked, and Castillo would not agree to that condition.

         IV. Accusations Against De Lucia

         After De Lucia told Castillo in September 2017 that he did not want the Children to keep their green cards and that he would not permit the renewal of their passports, Castillo filed two police reports against De Lucia. Castillo reported that De Lucia had aggressive and violent attitudes: De Lucia forcefully threw a plate against a wall near her in June 2010; De Lucia broke her personal computer in 2011; De Lucia threw a pair of glasses, injuring A.M.A., in 2011; De Lucia struck Castillo in the face in the summer of 2012; and De Lucia had a violent outburst in December 2016, which Castillo had to flee and take shelter in a bakery. Pet'r's Hr'g Ex. 40, Criminal Complaint (Oct. 18, 2017), ECF No. 31-1 at 307-308. Castillo also reported that R.T.D.L. engaged in exhibitionist behavior during a bath and told Castillo it was “daddy's game” and that R.T.D.L. told Castillo that she slept without underwear at her father's house on one occasion. Id. at 308. The officer scheduled an appointment for Castillo with Social Services so that Castillo's report could be investigated, id., but Castillo did not appear for the appointment. Id. at 310.

         In November 2017, Castillo returned to the police, accompanied by her attorney, Stefano Benvenuto. She reported that De Lucia raped her in January 2012; that he beat her and put his hands around her neck in May 2012 when she was pregnant with R.T.D.L.; that De Lucia sent her “an endless series” of threatening messages every day; and that when she was in a parking lot to make arrangements for the Children in October 2017, De Lucia pushed her and shut the car door on her finger. Pet'r's Hr'g Ex. 41, Criminal Complaint (Nov. 4, 2017), ECF No. 31-1 at 314-315.

         At the hearing, Castillo testified that De Lucia lost control and became physically violent with her, grabbing her by the neck once while she was holding one of the Children and pushing or hitting her on several other occasions, sometimes in front of the Children. Castillo also testified that De Lucia told her several times that he would kill her. Monica Lucero, who lives in the same apartment building as Castillo in Cusano Milanino, testified at the hearing that she often heard noises and screaming coming from Castillo's apartment and that on one occasion she saw bruises on Castillo's neck and arms that Castillo attributed to De Lucia. Lucero did not remember when it happened, but she believes that it was in 2016 or 2017. Castillo testified that after De Lucia moved out of her apartment in December 2016, De Lucia did not hit her or put his hands on her in an inappropriate way, although he did use threatening words often, at times in front of the Children. Castillo did not produce any of the threatening messages she reported to the police in November 2017.

         A family therapist who has worked with Castillo and the Children since they came to Athens testified that R.T.D.L. told her that De Lucia yelled at her and hit her. Castillo, however, did not testify about any incidents of violence against the Children, and she did not present evidence that she reported any such incidents to the police. Castillo did testify that De Lucia sent her two WhatsApp messages containing photographs of the Children without clothes. One photo is of the Children playing on a bed and shows the unclothed buttocks of one child. At the time, Castillo responded with a frowny face emoji and then carried on the chat with De Lucia, exchanging a series of photos and messages with him. The other photo is of the Children taking a bath. At the time, Castillo responded with a smiley face emoji and said, “Good girls, take your bath.” Pet'r's Hr'g Ex. 30, WhatsApp Message String (Mar. 19, 2018), ECF No. 31-1 at 241. Castillo also testified about R.T.D.L.'s exhibitionist behavior during a bath; R.D.T.L. told Castillo it was a “game of the father.” Castillo told the Children not to play like that.

         The Court interviewed the Children in chambers with only the court reporter and A.M.A., the Children's older half-sister, present. Due to their shyness and young age, the Children did not share anything that the Court found significant.

         V. The Removal of the Children

         Between March 21 and March 23, 2018, De Lucia and Castillo communicated about who would keep the Children while their school was closed for the upcoming Easter holiday. Then, on March 23, 2018, without notification to De Lucia, Castillo took R.T.D.L. and N.A.D.L. to the United States. Castillo told De Lucia in an email that she had gone to visit her parents in Athens, Georgia because her mother had health problems. Castillo said that she planned to return on April 4, 2018, and she told De Lucia that she would keep him posted and that he should call when he wanted to talk to the Children. Shortly after that, Castillo told De Lucia via WhatsApp that she could not return to Italy right away but planned to return in the summer, and she invited him to come see the Children. In response, De Lucia told Castillo to come back to Italy and that she did not have his consent to take the Children out of Italy. De Lucia later filed an accusation against Castillo for child abduction.[2] At the hearing, De Lucia testified repeatedly that he did not give consent for the Children to travel to the United States. Castillo does not dispute that she and De Lucia had no agreement for the Children to live in the United States beginning in March 2018.

         VI. The Italian ...


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