The child, a girl, was aged 7 1/3 at the date of the alleged wrongful removal. Her father was an Italian citizen, her mother had Italian and Yugoslavian citizenship. The family travelled frequently throughout the world as a result of the father’s career as an international opera singer. The family rented a flat in Genoa. The father also maintained a residence in Monaco, owned a flat in New York while the mother owned a flat in Belgrade.
In 1999 the child, whose primary language was Italian, spent time in Baltimore, New York, Montreal, Genoa and Buenos Aires. Italy was however the recurring theme throughout the child’s travels. In early 2000 the child stayed in Genoa, the mother then took her to New York during April and May before returning to Genoa. Whilst in New York the child had attended school there.
In August 2000 the parents separated. In September the child attended a kindergarten at a private Italian American school in Genoa. In October the father issued custody proceedings in Genoa. He also sought an order that the mother would not remove the child from the country. On 12 December 2000 the mother took the child to New York without informing the father. They entered the United States under a visa waiver program which permitted them to remain until 11 March 2001.
On 19 December 2000 the mother filed for divorce and custody in the New York State Supreme Court. On 28 December the father instituted criminal proceedings against the mother for, inter alia, the removal of the child from Italy.
The father subsequently obtained an advisory opinion from the Juvenile Court of Genoa pursuant to Article 15 of the Convention declaring that the child’s “customary residence” was Italy. The court also found that the mother’s removal of the child to New York without the father’s consent was unlawful under the Italian Civil Code. On 21 March 2001 the New York State Supreme Court issued a decision and order denying the father’s motion to dismiss the New York divorce action without prejudice.
