Thurgood Marshall U.S. Courthouse at 40 Foley Square
Thurgood Marshall U.S. Courthouse at 40 Foley Square (Bjoertvedt/Wikimedia)

A federal appeals panel has rejected an Italian man’s petition to get his two sons back from their mother in the U.S. under the Hague Convention, finding that one of the sons, who is severely autistic, would suffer severe hardship and that the boys should not be separated.

U.S. Court of Appeals for the Second Circuit Judge Guido Calabresi (See Profile) wrote the opinion in Ermini v. Vittori, 13-2025, which was handed down Tuesday, joined by Judges Jose Cabranes (See Profile) and Debra Ann Livingston (See Profile).

The panel mostly affirmed Southern District Judge Laura Taylor Swain (See Profile), though it found that Swain had mistakenly made her ruling without prejudice to renewal if facts change. The Second Circuit ruled that, under the Hague Convention, the order must be with prejudice.

The case centers on a part of the Hague Convention that is generally intended to ensure the return of children who are wrongfully removed from their country of “habitual residence” by one parent. However, the convention makes an exception for children who, though wrongfully removed, could face a risk of physical or psychological harm if they were returned. The convention is implemented in the United States through the International Child Abduction Remedies Act.

The parents of the children at issue in Tuesday’s decision, Emiliano Ermini and Viviana Vittori, began living together in Italy in 2001 and married in 2011. They have two children: Emanuele, 10, and Daniele, 9, who is severely autistic.

In August 2011, dissatisfied with the treatment Daniele had been getting in Italy, the family moved to the United States so that Daniele could be treated by an Italian-speaking doctor they knew with a practice in Suffern, N.Y. Ermini, who still worked in Italy, frequently traveled back and forth between the two countries.

The couple’s relationship was deteriorating, however, and in December 2011, Vittori obtained an order of protection against Ermini after he physically assaulted her in their Suffern home. Swain, in her order, found that this attack was part of a pattern of violence. Ermini returned to Italy and initiated divorce proceedings. An Italian appeals court eventually granted Vittori full custody of the children.

Nonetheless, Ermini petitioned the Southern District for an order that the children be returned to Italy under the Hague Convention.

Swain found that the children’s habitual residence was Italy, and that Vittori had breached Ermini’s custody rights under Italian law. Nonetheless, she found that the children should remain in the U.S. under the convention because Daniele would suffer grave harm if his treatment were discontinued, and both children would harmed if they were separated because of their close relationship.

Ermini appealed. The autism group, Autism Speaks, filed amicus briefs on behalf of Vittori, arguing for the importance of Daniele’s continued treatment.

Calabresi, in Tuesday’s order, said he had “serious doubts” about Swain’s conclusions that the children’s habitual residence was in Italy and that Ermini’s custody rights had been violated. Nonetheless, the panel chose not to decide those issues on appeal, instead basing its decision on the question of grave harm.

Calabresi wrote that Swain did not even need to address Daniele’s autism treatment to find that the children were at risk of grave harm, because Ermini’s violence was enough.

“Vittori was repeatedly struck; as were the children, whom Ermini was ‘in the habit’ of hitting; and Emanuele testified to being fearful of his father on the basis of this physical and verbal abuse,” he wrote. “These findings evince a ‘propensity’ for violence and physical abuse and a resulting fear in the children.”

“Moreover,” the judge continued, “in light of the children’s close relationship to each other, and, significantly, the conclusion we reached with respect to abuse, we determine as well that it was not error for the district court to decline to separate the children.”

Calabresi also agreed that stopping Daniele’s autism treatment would itself risk grave harm. He pointed to Swain’s finding “that Daniele would lose the ability to develop cognitive, emotional, and relational skills, and potentially lead an independent life, if removed from his current therapy and repatriated.”

“The harm, in fact, is of such a severity that it threatens to strike to the very core of the child’s development individually and of his ability to participate as a member of society,” Calabresi wrote.

He reversed Swain on the issue of whether the order should be with prejudice. Swain had ruled that it was without prejudice to renewal if facts changed, or if an Italian court entered a different custody order. However, Calabresi said that the Hague Convention does not allow for such an outcome.

“The Convention is not, and cannot be, a treaty to enforce future foreign custody orders, nor to predict future harms or their dissipation,” he wrote.

Sanket Bulsara, a partner at WilmerHale, represents Vittori.

“We’re very pleased with the result,” he said. “It allows our client to remain in the country and for her severely autistic child to receive treatment necessary for his well-being.”

Bulsara said the decision was significant because it determined that discontinuing a treatment could be harm under the Hague Convention.

“It’s certainly possible that [the decision] could have an impact on future cases,” he said.

Ermini is represented by Rocco Lamura, managing partner of Tosolini Lamura Rasile& Toniutti, and Genci Bilali, senior counsel at the firm. In a joint statement, they said that they respectfully disagreed with the ruling.

“In our opinion, the exception of the grave risk was not fully explored by the court as it relates to the autism; instead, other issues of less importance and not fully related to an Hague convention case, were addressed,” they said.