As the COVID-19 pandemic drags on, it is inevitable we will see more international cases that address this issue, even if tangentially.
In the case of Sacchi v. Dervishi, the US District Court for the Northern District of California ordered two children returned to their habitual residence of Italy and crafted its return order to account for the European Union’s travel restrictions that left the United States off of approved travel partners due to a resurgence in the COVID-19 outbreak in many parts of the U.S.
The couple, who were residing in Italy for the better part of 2 years with their children, were having marital difficulties. The children’s mother, Ms. Dervishi, decided she wanted to return to California, where the family had previously lived, and where the children were born. She asked their Father, Mr. Sacchi, for permission to move the children with her. It appears that both parents had a tentative (albeit somewhat unclear) understanding that the children could move to California “once [Ms. Dervishi] was settled.” As an aside, Mr. Sacchi understood the agreement to be only to “discuss” the potential for a move “once [Ms. Dervishi] was settled.” Regardless, in Mr. Sacchi’s eyes, Ms. Dervishi was never settled into her new life in California. She had a job at a health club and rented an unfurnished 1-bedroom apartment.
As time went on and unbeknownst to Mr. Sacchi, Ms. Dervishi began telling the children she would be moving them to California. She also enrolled them in school in California.
In the summer of 2019, the parents agreed that the children would visit Ms. Dervishi in California for one month. At the end of that one month, the children were scheduled to fly back to Italy and go on holiday with their Father, have doctor visits, and prepare for their school year. Ms. Dervishi purchased roundtrip airline tickets with a return date of July 18, 2019, but she never returned them. Four days after the children did not return, Mr. Sacchi promptly filed an application with the Italian Central Authority under the Hague Abduction Convention and texted Ms. Dervishi accusing her of kidnapping.
Ms. Dervishi argued, at trial, that Mr. Sacchi consented, or acquiesced, to the children remaining in California. She argued that the parents had a prior agreement that the children would relocate to California “once she was settled.” However, the standard is to look at whether the Father consented at the time of the children’s wrongful retention. Ms. Dervishi could not provide sufficient evidence to demonstrate that Mr. Sacchi consented to the children’s permanent relocation at that time (in July 2019). Furthermore, the Father did not delay in pursuing every remedy to have the Children returned after their retention and clearly did not acquiesce.
The Court ordered the return of the two children to Italy, and crafted its return order as follows: “If travel is allowed due to COVID-19 (Coronavirus Disease), Dervishi shall return the children to Milan, Italy within fourteen days of this Order. If Italy is not allowing flights in from the United States, Dervishi shall return the children within fourteen days of any travel restrictions being lifted.”