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In Croll v. Croll, 229 F.3d 133 (2d Cir.2000), Mrs. Croll removed her
daughter Christina from Hong Kong to the United States in violation of
her custody agreement with Mr. Croll. Mr. Croll filed an ICARA petition
seeking Christina's return to Hong Kong. Under their agreement, Mrs.
Croll maintained sole "custody, care, and control" of Christina, and Mr.
Croll had a right of "reasonable access." The agreement also provided
that Christina "not be removed from Hong Kong until she attains the age
of 18 years" without leave of court or consent of the other parent. The
district court concluded that this ne exeat clause created rights of
custody under the Convention and granted Mr. Croll's petition. In
reversing, the circuit court relied on three main conclusions: that Mr.
Croll's ne exeat right is not a right to determine the child's place of
residence, but only a limitation on Mrs. Croll's right to determine the
child's place of residence; that his ne exeat right could not be
exercised absent removal; and that the history and drafters' intent of
the Hague Convention supported the view that a ne exeat right is not
custodial. In reaching its view that the ne exeat right was only a
limitation, the Courtrelied in part on how the particular agreement gave
Mrs. Croll the sole "custody, care, and control" of the child, and thus
the sole right to determine Christina's place of residence within Hong
Kong.
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