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Silvestri v. Oliva

December 7, 2005

FRANCISCO OSCAR SILVESTRI, PETITIONER,
v.
MARA MONICA OLIVA, RESPONDENT.



The opinion of the court was delivered by: Martini, U.S.D.J.

OPINION

FOR PUBLICATION

Petitioner Francisco Oscar Silvestri ("Petitioner" or "Silvestri") brought this action before the Court under The Convention on the Civil Aspects of International Child Abduction (the "Hague Convention") and the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. § 11601 et seq. Silvestri seeks an order requiring that his three minor children - Marianela Ivana, Antonella Lucia and Macarena Oriana Silvestri - be returned to Argentina for determination of custodial rights. Silvestri brought this action against Respondent Mara Monica Oliva ("Respondent" or "Oliva"), his former wife and the mother of the three children, with whom the children currently reside in the United States. This matter came on for trial on November 22, 2005. The Court heard testimony from both Silvestri and Oliva and argument from both sides and received exhibits. Based on the foregoing evidence, and for the reasons explained below, Silvestri's petition is DENIED and the Court will not issue an order requiring the return of the children to Argentina.

FINDINGS OF FACT*fn1

Preliminarily it is worth noting that much of the evidence presented to the Court upon which it must make its determination was the testimony of Petitioner Silvestri and Respondent Oliva. As such, the Court independently evaluated the credibility of each witness. The Court took into account each witness' demeanor while testifying, the ability of each witness to recall and explain events and things, the reasonableness of each witness' testimony in light of the other evidence presented, and whether each witness' testimony was contradictory or consistent with their own testimony, the testimony of the other witness, or the other evidence presented.*fn2 Overall the Court found the testimony of Oliva to be more credible. To the extent that Silvestri's testimony contradicted or conflicted with Oliva's testimony, the Court credited Oliva's testimony except as otherwise noted.

Petitioner Silvestri is a citizen of Argentina living in Argentina. Respondent Oliva is a citizen of Argentina currently living in New Jersey. Both parties were born in Argentina. They married in Argentina and lived in Vicente Lopez, a city outside of Buenos Aires. They had three children: Marianela Ivana, Antonella Lucia and Macarena Oriana, who are now fourteen, twelve and nine years old respectively.

The children's relatives, including their grandparents, aunts, and uncles, live in Argentina. Besides the Respondent, no other relative lives in the United States. When the children lived in Argentina, they saw their relatives infrequently because they lived far away.

Petitioner and Respondent visited the United States every year for approximately ten years before 2003. During that time period, Respondent talked repeatedly about moving to the United States.

Petitioner worked and continues to work for a small family business which belongs to his father. In 2001, the business faced hard times due, at least in part, to the fact that Argentina was experiencing an economic crisis. The value of the family business plummeted, dropping to one-third of what it had previously been worth. It was at that time that Petitioner and Respondent began to formulate a plan to move to the United States. The plan was to live in the United States on a conditional basis and, after some undefined period of time, decide whether they wished to remain in the United States or return to Argentina.

The Petitioner and Respondent believed that their easiest route to the United States involved Respondent getting a work visa, which would then allow Petitioner and the children to obtain derivative visas. In order to obtain a work visa, Respondent needed to find a job sponsor. Respondent was and is a mental health professional, employed as a therapist. She interviewed for a position at the Metropolitan Center for Mental Health, Hispanic Family Services division on February 21, 2001. Metropolitan Center agreed to sponsor her. On March 11, 2002, Respondent's attorney began the process to obtain a work visa. In December 2002, her work visa was approved.

Because Respondent spoke English better than Petitioner, it was decided that she would come to the United States alone to secure a place for the family to stay and establish herself before Petitioner and the children followed her up. Petitioner and Respondent decided to have the two-bedroom house in Argentina appraised so they could put it up for sale. Petitioner intended to establish a business in the form of a café in the United States, and the couple planned on using the proceeds from the sale of their house as seed money for that business.

On February 25, 2003, Respondent arrived in the United States, specifically, New Jersey. She leased a two-bedroom apartment for one year. She began working full time as a therapist at Metropolitan Center in April 2003. While Respondent was busy establishing a foothold in New Jersey, the Petitioner remained in Argentina making the final preparations to move to the United States. He was responsible for preparing the contents of their house in Argentina for the move. He arranged to have approximately 20 % of their furniture, including the family's beds, as well as other belongings, e.g., dishes, pictures, books, photo albums and dolls, shipped by boat to the United States. As a result of the beds being shipped before the Petitioner and children moved, they spent their remaining days in Argentina sleeping on the floor of the house. Petitioner also shipped a portion of his miniature car collection, which he intended to use as decoration in the café he planned on opening in the United States.

The children began attending school in Argentina at the age of five years old. The Argentine school year runs from the beginning of March through December each year. They attended school in Argentina up to March 2003, when Petitioner removed them from school to move to the United States.

On March 22, 2003, Petitioner and the children came to the United States, using round-trip tickets, returnable four days later. Respondent picked them up at Newark International Airport in New Jersey. Petitioner testified that on their way from the airport to the apartment he informed Respondent that he did not want to live in the United States and wanted the children to return with him to Argentina. The Court however finds that testimony incredible. Petitioner himself brought the children to the United States. If it was his intention to keep the children in Argentina, he could have left the children in Argentina with relatives, where they could have remained in school, and come up by himself. Instead, Petitioner removed the children from their schools, after they had just begun a new school year, and moved them to the United States. And within one week of their arrival, the children were enrolled in school. Petitioner himself frequently took the children to and from school. Moreover, Petitioner applied for a New Jersey driver's license several times. Although he never passed the test, his repeated efforts to obtain a license, as well as the other facts surrounding his move to the United States, belie Petitioner's assertion that he immediately objected to and opposed establishing roots in the United States. Rather, they demonstrate that he acted pursuant to the plan that he and Respondent developed while living in Argentina.

Petitioner stayed in the New Jersey for two months. During that time, he apparently became uncomfortable with the size of the apartment, which was small relative to the house in Argentina, and with the fact that they had to sleep on the floor for some time while the family's beds were in transit. Essentially, Petitioner appears to have had some problems adapting to living in the United States. In May 2003, Petitioner expressed his intention to return to Argentina, but in doing so, he did not object to the children staying in the United States at that time. Rather, he explained that he needed to take care of some business in Argentina and that afterwards he would return. In response, Respondent expressed her intent to remain with the children in the United States. Petitioner left for Argentina using a round-trip airplane ticket.

In late May, early June 2003, Petitioner returned to the United States. At some point thereafter, in what appears to be early June, Petitioner informed Respondent that he wanted everyone to return to Argentina. Respondent told Petitioner that she and the children would remain in the United States. Subsequently, and for reasons that are disputed but need not be explained, Petitioner and Respondent had a severe argument that degenerated into a physical confrontation. That confrontation effectively ended their marriage. Within a day of that confrontation, Petitioner left the United States without the children and returned to Argentina where he has resided since.

In October 2003, when Respondent learned that Petitioner intended on visiting the children in New Jersey, Respondent sought a temporary restraining order against Petitioner predicated on the confrontation in June and sought a formal declaration of custody of the children. On October 9, 2003, the temporary restraining order issued temporarily awarding custody of the children to Respondent pending a final ...


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