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Kaye Scholer Amicus Brief Cited by Court in Achieving Desired Denial of Hague Convention Pet…

July 21, 2014

An amicus brief filed by Kaye Scholer with the Second Circuit was recently cited by that court in affirming a district court’s denial of a Hague Convention petition, the outcome sought by our clients.

The case, Ermini v. Vittori, involved an Italian couple who moved to Suffern, New York to secure superior treatment for their youngest child’s severe autism that was not available in their home country. The couple had a contentious relationship that included a pattern of domestic and child abuse by the husband. This pattern continued in the United States, culminating in a horrific domestic dispute witnessed by the children in which the husband attacked his wife and threatened the lives of his family. The couple separated, with the wife remaining in the United States and the husband returning to Italy. In the midst of the ensuing custody proceedings, the husband filed a Hague Convention petition seeking return of the children to Italy. The wife opposed, asserting a “grave risk of harm” to her children if returned (the Convention’s legal standard) because (1) the youngest child would lose his essential autism therapy; and, (2) both children were vulnerable to continued abuse from their father. The district court denied the husband’s petition on the first ground. 

On appeal to the Second Circuit, Kaye Scholer represented Professor Elizabeth Lightfoot, a scholar in social work, and Sanctuary for Families and Child Justice: two organizations that specialize in child welfare. We filed an amicus brief on their behalf arguing that the husband’s pattern of domestic and child abuse was sufficient independent grounds to affirm the district court’s decision below. In making this argument, we presented the court with decades of social science research establishing that direct abuse and exposure to domestic violence can have devastating, long-term consequences for a child’s behavioral, emotional and cognitive development and functionality, and that special concerns arise when abuse is directed against, or witnessed by, a child with developmental disabilities such as autism. 

While the Second Circuit found that the district court had not committed reversible error in finding that the autistic child faced a grave risk of harm if returned to Italy due to the loss of his treatments, the court based its decision to affirm the result below by holding, contrary to the district court, that the husband’s history of domestic abuse towards his wife and children was itself sufficient to establish the Hague Convention’s “grave risk of harm” defense.  In so finding, the Second Circuit specifically cited our brief, stating: “We additionally note the potential for a heightened adverse impact of the hitting of the children, and of exposure to the abuse that Vittori [the wife] suffered, on Daniele as an autistic child. See Amicus Br. of Professor Elizabeth Lightfoot et al, 8-13.” Our clients are thrilled with both the result of the decision and with the court expressly acknowledging the significance of their work and research.

The Kaye Scholer team consisted of Partner Gregory Wallance, Associates Stewart Wallace and Susanna Chu, and Legal Nurse Analyst Caren Gurwitz.

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Gregory J. Wallance
Special Counsel
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W. Stewart Wallace
Associate
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