Casulli v. Falcone

2002 DNH 069

• Court: District Court, D. New Hampshire
• Decided: March 19, 2002
• Docket: CV-02-123-M
• Status: Published

Opinion

Casulli v. Falcone CV-02-123-M 03/19/02 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Vincenzo Casulli, Petitioner

v. Civil No. 02-123-M Opinion No. 2002 DNH 069 Elena Falcone, Respondent

O R D E R

A preliminary hearing was held on March 18, 2002, regarding

temporary custody of the minor, Rodolfo Casulli. Respondent,

Elena Falcone, appeared pro se ; the minor was brought before the

court pursuant to the court's earlier order directing the United

States Marshal to locate and take custody of him; and Petitioner

appeared both in person and through counsel.

Having heard from the minor (ex parte and in camera), from

counsel for Petitioner, and from Respondent, the court

determined, under the provisions of 42 U.S.C. § 11604(b), that

removal of the child from Respondent's physical control pending

resolution of the petition was not necessary, and likely would not be consistent, under the circumstances, with the requirements

of state law.

First, the court is satisfied that the minor is well and

safe in Respondent's custody. Second, adequate measures are

available to meaningfully deter Respondent from removing the

minor from this jurisdiction. Respondent was ordered to, and has

surrendered both her and the minor's passports. The minor (who

is nearly fourteen years old) has assured the court that he will

not abscond and will actively resist any effort by Respondent to

remove him from this court's jurisdiction. Additionally,

Respondent has given her own assurance that she will not remove

the minor, and she has been directly ordered not to remove him,

on pain of contempt of court penalties. And, while it would

appear that the minor was wrongfully removed from Italy, within

the meaning of the Convention on the Civil Aspects of

International Child Abduction, done at The Hague on October 25,

1980, the temporary award of custody pendente life should not,

under New Hampshire law, be used as a tool to discipline a

recalcitrant parent - even violation of a decree is not

2 necessarily controlling on the question of custody. See Houde v.

Beckmaver, 133 N.H. 665 (1990).

Finally, while not dispositive, it appears that an

outstanding state court order may operate to restrict

Petitioner's access to the minor in New Hampshire. That order

may well be reconsidered by the state courts, given that it was

apparently obtained on an ex parte basis, without any notice to

Petitioner (who is an Italian citizen and was, at all pertinent

times, resident in Italy), and, apparently, the state courts were

not informed of the outstanding custody, visitation, and support

orders issued by a court of competent jurisdiction in Italy.

See, e.g., N.H. Rev. Stat. Ann. ch. 458-A:22 (extending full

faith and credit to foreign custody decrees) . In any event,

while it is in effect, that order casts some doubt upon whether a

change in physical control of the minor at this point would be

consistent with "the applicable requirements of State law." 42

U.S.C. § 11604 (b) .

The court also determined that counsel should be appointed

to represent what may be distinct interests of the minor.

3 Rodolfo Casulli is a few weeks short of his fourteenth birthday

at this point, appears to be appropriately mature for his age,

and is articulate and capable of understanding the nature of the

issues raised in this litigation, as well as the consequences of

alternative possible outcomes. He appeared to be capable of

rational thought and of expressing reasonable preferences with

regard to his own future.

Respondent advised the court that she is, or will be,

represented in this matter by R. Christopher Green, Esq., 1

International Place, Boston, Massachusetts. The court directed

Petitioner's counsel. Attorney Sedgwick, to confer with Attorney

Green and Deputy Clerk Mulvee to schedule a hearing on the merits

of the petition at a time convenient to the parties, preferably

within six weeks, and as the court's docket allows. Barring

agreement, the court will schedule the matter as the docket

permits.

Conclusion

Counsel shall be appointed by the court to represent the

legal interests of the minor, Rodolfo Casulli, relative to the

4 relief sought in the petition (in essence, the minor's interests

are analogous to those arising in habeas corpus proceedings).

Attorney Sedgwick and Attorney Green shall confer and advise

Deputy Clerk Mulvee of acceptable dates for a hearing on the

merits of the petition. Respondent's passport and the minor's

passport shall be held by the Clerk of Court pending resolution

of the petition. Respondent shall insure the minor's presence at

all scheduled hearings related to this matter, and shall not

remove him from the jurisdiction of this court while this case is

pending, upon pain of contempt of court sanctions.

SO ORDERED.

Steven J. McAuliffe United States District Judge

March 19, 2002

cc: Darla S. Sedgwick, Esq. R. Christopher Green, Esq. Elena Falcone