Sacchi v. Dervishi

Background

Marco Sacchi petitioned for the return of his two minor children, R.S. and A.S., to Italy under the Hague Convention on the Civil Aspects of International Child Abduction, as implemented by the International Child Abduction Remedies Act. The case followed Klodjana Dervishi’s decision not to return the children to Italy after taking them to California for a planned month-long summer visit.

Sacchi and Dervishi moved from Italy to California in 2008 and lived there with the children until July 2016. The family then moved back to Italy. They moved most of their possessions, gave up their California residence lease, and lived together with the children in Milan for about two and a half years. The children attended school in Italy, became fluent in both Italian and English, participated in activities, had friends and extended family there, and received medical care through the Italian health system.

Dervishi moved alone to California in December 2018. She continued asking whether the children could move there, while Sacchi said they could discuss the issue after she became settled. The court found that Sacchi never agreed to an indefinite move. In April 2019, he filed a divorce proceeding in Italy and requested custody and placement of the children there. The parties agreed that the children could visit Dervishi in California from June 15 through July 18, 2019, and Dervishi bought round-trip tickets and provided Sacchi with the itinerary.

Dervishi took the children to California in June 2019. The children brought only enough belongings for a month-long vacation, leaving most of their personal possessions in Italy. Dervishi did not tell Sacchi that she would not return them. In July 2019, she refused to bring them back. Sacchi demanded their return and filed applications in Italy to begin Hague proceedings four days after the scheduled return date. Dervishi later filed a California dissolution proceeding requesting sole legal and physical custody.

Legal standard

The Hague Convention generally requires a court to order the prompt return of a child under age 16 who was wrongfully removed from or retained outside the child’s country of habitual residence, unless a narrow exception applies. The proceeding is not a custody case. It determines whether the child must be returned so that custody can be decided by the courts of the habitual-residence country.

Sacchi had to prove by a preponderance of the evidence—a showing that something was more likely than not—that the children were wrongfully removed or retained. Dervishi then had the burden of proving an applicable exception. She relied on consent and acquiescence. Consent concerns whether Sacchi agreed to the removal or retention before it occurred. Acquiescence concerns whether he later accepted or agreed to the children’s continued retention.

Findings and analysis

The court found that Sacchi and Dervishi shared custody rights under Italian law. It also found that Italy was the children’s habitual residence when Dervishi took them to the United States in June 2019. The children had lived in Italy for almost three years, attended three years of school there, spoke Italian and English, and were integrated into Italian school, social, family, and community life. Dervishi later conceded that Italy was their habitual residence as of June 2019.

The court rejected the consent defense. It found that Sacchi agreed only to a one-month vacation, not to the children’s permanent or indefinite move to California. The round-trip tickets, the limited clothing packed for the trip, the children’s belongings left in Italy, and the Italian homework they brought supported that conclusion. The court also found that Sacchi’s statements about discussing a possible move after Dervishi became settled did not establish actual consent to the move at the time of removal. Even if Sacchi had earlier given some form of consent, the court found that he had withdrawn it by the time Dervishi took the children to California.

The court also rejected the acquiescence defense. Dervishi relied primarily on Sacchi’s conduct before the children were taken to California, but acquiescence concerns conduct after the removal or retention. The court found no evidence that Sacchi accepted the children’s continued stay in California. Instead, he accused Dervishi of illegally holding the children, demanded their return, and filed Hague applications within days after discovering that she would not return them.

Ruling and disposition

Judge Sallie Kim granted Sacchi’s petition for the children’s return. The order required Dervishi to return the children to Milan within 14 days if travel was allowed because of COVID-19 restrictions. If Italy was not allowing flights, the order stated that the return was to occur after the restrictions were lifted. The court stated that it would issue a separate judgment in Sacchi’s favor and directed the clerk to close the file.

The court also stated that Sacchi could file a motion within 14 days seeking reimbursement of fees and costs incurred in bringing the petition. The opinion did not decide which parent should ultimately receive custody.