Legal Translation for Child Custody Disputes

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We’ve blogged about the need for legal translation services in international child custody disputes involving a foreign spouse or partner. In Pennacchia v. Hayes, the court decided a child custody dispute involving unwed parents and their five-year-old daughter. The father, a citizen of Italy, filed a verified petition in U.S. district court against the mother, a U.S. citizen, for the return of the child to Italy. The child was a citizen of both the U.S. and Italy.

The child was born in Seattle, Washington in 2010. Several months after the child was born, the parents moved to Italy with the purpose of trying to live as a family on a “trial basis.” The mother claims she agreed to reside in Italy while on maternity leave with the understanding that the arrangement could be terminated at any time of the relationship did not work out. The parents resided together with the child in Italy for a period of time but eventually maintained separate residences in Italy for approximately three years due to conflicts in their relationship.

In 2015, the father agreed to allow the mother to travel to the United States with the child. The father claimed that the mother was supposed to return the child to Italy the following month, which she failed to do. The child’s father subsequently filed an application with the Central Authority in Italy requesting the return of the child to Italy through the Hague Convention. The father’s petition was forwarded to the United States Central Authority, which informed the mother of the filing of the petition. The mother and child continued to reside in Idaho and did not return to Italy.

The father then filed, in Idaho federal court, a Verified Petition for the return of a child pursuant to the Convention on the Civil Aspects of International Child Abduction (“Convention”) and the International Child Abduction Remedies Act, to which both the United States and Italy are signatory nations. The father alleged that the mother was wrongfully retaining the child in the United States and argued that Italy, which the father alleged was the child’s habitual residence, should decide the custody dispute. In response, the mother argued that the child’s habitual residence was in the United States and asserted that the father had consented to the child’s removal to the United States. The mother also argued that removing the child would expose the child to psychological harm and that the child was old enough to have a say in where she lived.

Court Denies Father’s Petition to Return American-Born Child to Italy

In deciding the matter, the court noted that it had reviewed Italian to English translations of emails and letters between the child’s parents and noted that language and cultural barriers had impacted the parents’ ability to effectively communicate. Specifically, the court noted that the parties were not fluent in each other’s languages (English and Italian), and stated that the parties testified that they used internet translation tools to translate their emails and letters to one another.

The court found that the father had failed to prove, by a preponderance of the evidence that both he and the child’s mother intended for the child to reside in Italy. The court was persuaded by the fact that before moving to Italy, the mother executed a will and opened a college savings plan for the child, prepared paperwork to appoint guardians for the child in the United States, obtained a U.S. passport for the child, and secured a private medical insurance and a social security account. The court also reasoned that the mother’s actions regarding her own affairs indicated an intention to permanently reside in the United States; specifically, the mother maintained a home, vehicle, bank accounts, driver’s license, and health insurance in the United States. Last but not least, the mother hired an American nanny to care for the child during their time in Italy so that the child could have exposure to the English language and American customs.

Although the father also took certain actions indicating that he intended for the child to reside in Italy, such as securing a mortgage in order to renovate his home to accommodate the child and her mother, the court found that the father had testified that both he and the mother had agreed that relocating to Italy was only for a trial period. In addition, although the father argued that he had not been provided with Italian translations of the guardianship paperwork the mother initiated and that he did not understand what he was signing, the court found his testimony not credible, even with the language barrier.

The court also rejected the father’s reliance on the custody proceedings in Italy in which the Court of Rome determined the child’s habitual residence was in Italy. The court held that the Court of Rome did not determine that the child’s habitual residence was in Italy under the 1980 Hague Convention and, thus, its ruling was not binding on the court. The court also held that the evidence did not show that the child had acclimated to Italy in such a way that her habitual residence changed from the United States to Italy.

While the child remained in Italy, she attended a trilingual school and traveled to the United States often for extended periods of time and stayed with her American family and friends. The court held that the child’s “strong cultural ties to the United States demonstrate that despite her residing in Italy for large portions of the year, she retained her original habitual residence in the United States.” Consequently, the court entered an order denying the father’s verified petition for return of the child to Italy.

The case is Pennacchia v. Hayes,16-CV-99173-EJL, decided by the United States District Court for the District of Idaho.

Contact our legal translation and apostille services company to obtain certified translation from and into Italian, Traditional Chinese, Simplified Chinese, Spanish, Japanese, Korean, French, German, and other foreign languages for matrimonial attorneys.  We also provide court certified interpreters for depositions and mediation via Zoom and in person in all languages, including Italian, Mandarin, Nepali, Arabic, Farsi, Russian, Polish, Cantonese, Hebrew, Turkish, Nepali, French, Amharic, Spanish, Portuguese, Romanian, and other uncommon and common languages.

This law language blog article should not be construed as legal advice. You should always consult an attorney regarding your specific legal needs.

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