In Pesin v Osorio Rodriguez, 77 F.Supp.2d 1277 ( S.D. Florida, 1999) the Father filed a petition under the Hague Convention seeking the return of the parties' minor children, which the wife had allegedly wrongfully retained. The District Court held that Venezuela was the children's "habitual residence"; the father was "exercising custody rights" at the time of the children's retention; and the father did not acquiesce in the wrongful retention of the parties' minor children. To establish a prima facie case of wrongful retention under the Hague Convention, the father bore the burden of proof to show by a preponderance of the evidence that the habitual residence of the children "immediately before" the date of the alleged wrongful retention was Venezuela, and the retention was in breach of custody rights under Venezuelan law, and he was exercising custody of the children at the time of their alleged wrongful retention. The Children's 23-day stay in Florida immediately prior to their alleged wrongful retention was not sufficient to establish their "habitual residence" in the United States for purposes of the Hague Convention. The parents' settled purpose of their family trip to Florida was, as planned, a family vacation finite in its duration. The parties had packed for only a temporary visit, rather than a permanent move, and the children were enrolled for the entire school year in a Venezuelan school immediately before their retention. Habitual residence can be altered only by a change in geography which must occur before the questionable removal and the passage of time, not by changes in parental affection and responsibility. The mother's retention of the children in Florida after the father returned from the family's Florida vacation breached the father's custody rights under Venezuelan law. A Parent "exercises custody rights" within meaning of the Hague Convention whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child. If a person has valid custody rights to a child under the law of the country of the child's habitual residence, that person cannot fail to "exercise custody rights" under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child. The father did not unequivocally abandon his custody rights to the parties' children, but rather was "exercising custody rights" at the time of their retention. The father, though sleeping in a different residence from his wife and the children while vacationing in Florida, visited the children each morning, had dinner with them each evening, and stayed with them in Aruba, and maintained regular contact with the children through daily phone calls, visits every two or three weeks, and several vacation trips after he returned to children's habitual residence in Venezuela.

Once a petitioner establishes that wrongful retention has occurred under the Hague Convention, the children must be returned unless respondent establishes the affirmative defense that: (1) the proceeding was commenced more than one year after the removal of the child; (2) the children have become settled in their new environment; (3) the person seeking return of the child consented to or subsequently acquiesced in the removal or retention; or (4) there is a grave risk that the return of the children would expose them to physical or psychological harm. Acquiescence under the Hague Convention requires either an act or statement with the requisite formality, such as testimony in a judicial proceeding, a convincing written enunciation of rights, or a consistent attitude of acquiescence over a significant period of time. Acquiescence under the Hague Convention is a question of subjective intent. The father did not acquiesce in the wrongful retention of parties' minor children in the United States so as to preclude his claim under the Hague Convention. The father's tuition and monthly stipend payments to his wife and his transfer of the children's clothing to Florida did not demonstrate his unequivocal intention to acquiesce, but rather, illustrated his singular intention to reconcile his marriage.