Defenses - Cases

In Walsh v. Walsh, 221 F.3d 204 (1st Cir. 2000), the husband who had earlier absconded to his native Ireland after being charged with criminal offenses in the United States petitioned for return of the children after they were taken to United States by his estranged wife. The District Court granted the petition, and after allowing the wife's sister to intervene on behalf of the children, denied a motion to dismiss on basis of the fugitive disentitlement doctrine. The Court of Appeals held that: the sister's intervention was properly limited to the issue of applicability of the the fugitive disentitlement doctrine; the doctrine did not bar the husband from bringing his petition and grant of a stay pending appeal was proper. The wife made a showing that the return of the children to Ireland would expose them to a grave risk of physical or psychological harm, as would bar their return under the Hague Convention. Under the "fugitive disentitlement doctrine," courts will generally dismiss the civil or criminal appeal of a fugitive who is still on the lam. The doctrine does not allow a court in a civil forfeiture suit to enter judgment against a claimant because he is a fugitive from, or otherwise is resisting, a related criminal prosecution. The dismissal of a civil action pursuant to fugitive disentitlement doctrine requires that the plaintiff is a fugitive, his fugitive status has a connection to his civil action, and the sanction of dismissal is necessary to effectuate the concerns underlying doctrine, which include prejudice to the opponent, delay, frustration, and unenforceability. While the husband was a fugitive, and there was arguably some connection between his fugitive status and his petition, practical considerations did not warrant application of doctrine, which would impose too severe a restriction on the husband's attempt to enforce his parental rights. The wife who had wrongfully brought children to United States from their habitual residence in Ireland showed by clear and convincing evidence that children faced a grave risk of exposure to physical or psychological harm if they were returned to her husband in Ireland. The husband had a long history of spousal abuse, and of fights with and threats against persons other than his wife, including fight with one of his adult sons, and had shown a chronic disobedience of court orders. Undertakings by the husband, or even a potential barring order by an Irish court, were not sufficient to mitigate the grave risk that the children would be exposed to physical or psychological harm if they were returned, and thus did not allow the return of the children. The husband had repeatedly violated court orders in both the United States and Ireland, and there was every reason to believe that he would violate undertakings, and any future orders of Irish courts.

In Belay v Getachew, 272 F.Supp.2d 553,(D. Md, 2003) the Court held that Petitioner had established the prima facie case of wrongful removal. The child was habitually resident in Sweden prior to the removal; the removal was in breach of Petitioner's custody rights; and Petitioner was exercising those custody rights at the time of removal. It also held that Respondent had established the two elements that make up the A well-settled@ Article 12 defense. Courts considering whether a child is well-settled can take into account numerous factors which can include: the circumstances surrounding the children's living environment; the stability of the child's residence in her new environment; social ties with family and friends; and attendance at school and other social institutions such as religious institutions. Although the child was "well-settled" in the new environment and more than one-year had passed between the wrongful removal and the filing of the petition, the Court found that all of the equities demand that Respondent not benefit from the protective sweep of Article 12. It concluded that, there was no affirmative defense to prevent return.

In Anderson v. Acree, 250 F.Supp.2d 876 (S.D.Ohio 2002), the Court held that the mother's removal of her minor daughter from New Zealand, the daughter's habitual residence, was unlawful under the Hague Convention where the father, a citizen of New Zealand, had custody rights under New Zealand law and was exercising those rights, albeit sporadically, at the time of the child's removal from New Zealand. A New Zealand Family Court opinion indicated that the father was exercising custody rights by engaging in visitation and would have been entitled to apply to the New Zealand court for a custody order. The mere passage of time does not establish that a child is settled in her new environment. Substantial evidence of the child's significant connections must show that the child is in fact settled in or connected to the new environment so that, at least inferentially, return would be disruptive with likely harmful effects. In determining whether a child is settled, a court is permitted to consider any relevant factor, including the particular circumstances surrounding the child's living environment. The objections of a mature child, of any age, to being returned to his or her native country may be relevant to the determination of whether the child is well settled. The eight-year-old child was of sufficient age and maturity to permit the court to consider her views as to whether she should be returned to New Zealand. The child, who was of sufficient maturity for the court to consider her views, wanted to stay in the United States with her mother, had adjusted well to life in the United States, made friends at school and played with cousins her age, and had only sporadic contacts with relatives in New Zealand.

In Wojcik v. Wojcik, 959 F.Supp.2d 413 (ED. Mich. 1997), a French father petitioned for the return of his children to France. The court held that the settled in environment exception to automatic return applied even though the father contacted the United States Central Authority within a year of the wrongful retention.

The children were born in France, the father was French, the children had been residing in France continuously until their removal by the mother, the father was married to the mother and thus enjoyed the presumption of joint custody under French law, the father and mother were living together with the children immediately before the removal, and the father exercised his parental rights before the children were wrongfully retained in the United States.

The father did not commence proceedings before a judicial or administrative authority within a year of the mother s wrongful retention and the  settled in their environment exception to the automatic return of the children applied. No equitable reason existed to preclude application of A settled in their environment exception. The mother did not hide the children and in fact called the father the first day of the wrongful retention and told the father the location of the children.

The children, who were eight and five years old at the time of the hearing, were settled in their new environment. The children had been in the United States for 18 months. The mother and the children lived with the mother= s brother for eight months until they moved to a rented house. The children attended school or day care consistently and had friends and relatives in the area. The family attended church regularly, and the mother had stable employment with the same employer for more than one year.

In Ly v. Heu, 296 F.Supp.2d 1009 (D.Minn. 2003) the father, a resident of France, established that the child's mother wrongfully removed the child from France by moving to the United States after their divorce; the father and mother had joint legal custody of the child under French law that applied to the parties' divorce. Legal custody under French law included the right to determine the child's place of residence, and the mother did not notify the father or seek leave of a French court prior to bringing the child to the United States even though the father exercised his custody rights by visiting the child with reasonable frequency prior to the child's removal.

In determining whether the settled exception defense applies the court is permitted to consider any relevant factor, including the particular circumstances surrounding the child's living environment; such factors include the age of the child, the stability of the child's residence in the new environment, whether the child attends school or day care consistently, whether the child attends church regularly, the stability of the mother's employment or other means of support, whether the child has friends and relatives in the area, and to what extent the child has maintained any ties to the country of habitual residence.

The mother established that the child was settled in a new environment in the United States. The child lived continuously in the same city since her removal and had only vague memories of France, attended the same school regularly and was thriving in academic and extra-curricular activities, developed a strong bond with the step-father, step-siblings, and step-fathers' extended family, and had no apparent ties to France other than the father's residence there.

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In re Koc, 181 F.Supp.2d 136 (E.D.N.Y. 2001), the District Court held that the child was wrongfully retained in the United States. The child was a habitual resident of Poland, the father actually exercised his parental right and would have continued to do so had the child not been wrongfully retained, the parents had shared custody over the child, and when the mother brought the child on vacation to United States, the clear intent of both parents was that child would be returned in time to start school in fall.

The father's petition for assistance from the Polish Central Authority did not preclude action under the Convention in District Court, since the Authority had no power to render judgment which would have a preclusive effect on the Court, the father attempted to resolve matter out of court to obtain voluntary visitation rights, and his intent was to have child returned to him or, if that was not possible, to have visitation.

Respondent contending that the child is now "settled" in her new home must show that the child is in fact settled in or connected to the new environment so that, at least inferentially, return would be disruptive with likely harmful effects. There must be substantial evidence of the child's significant connections. Among the factors considered by the courts in determining whether a child is settled in her new environment, are the age of the child, the stability of the child's residence in the new environment, whether the child attends school or day care consistently, whether the child attends church regularly, the stability of the mother's employment, and whether the child has friends and relatives in the new area.  A more A comfortable material existence@ does not mean that the child is well settled. The child was not "well settled" in her new home, although she had been in the United States for two and a half years, where she had lived in at least three different locations and attended three different schools. She had been at the school she was currently attending for only four months. She did not attend extracurricular school-related activities or church on a regular basis, and she did not socialize with her classmates outside of school.

In re Robinson, 983 F.Supp. 1339 (D.Colo. 1997), the court held that the fact that the father entered into a voluntary, court-approved "undertaking," in which he agreed, not to communicate with the mother or return to the matrimonial home without her consent, did not compel a finding that he no longer had rights to custody under the Law of the United Kingdom.

The father's absence from the home did not constitute failure to exercise custody rights at the time of removal, where the mother had used the threat of judicial authority to obtain the father's agreement to keep away from the home.

The ten-year-old child's objection to returning to his father in the United Kingdom was the product of undue influence, and thus would be afforded no weight. Acknowledging that a counselor gave him "a few ideas" which were that "I like it here and I'm settled in," the child used a term, i.e., "settled," which was the most significant legal term of the dispute and was not the language of a ten-year-old.

The court held that the wrongfully removed six-year-old and ten-year-old children were "settled" in the United States, and thus did not have to be returned to their father where they had lived in the same area for 22 months, were actively involved with extended family, were doing well in school, participated in extracurricular activities, and had made friends.

Philip Robinson petitioned for the return of his children, Benjamin and Stephanie, to Great Britain. The children's mother, removed them from Great Britain and they resided with her in Colorado.

In 1979 Petitioner and Respondent were married in Colorado, and moved to England soon thereafter where both children were born. The family lived together in England until June 1995, when Mrs. Robinson and the children moved out of the family residence.

While separated, Mrs. Robinson applied to a local court for a restraining order against Mr. Robinson. The parties entered into a court approved "undertaking," in which Mr. Robinson agreed to vacate the home pending resolution of the issues between them. Although the undertaking did not address custody of the children, they remained with Mrs. Robinson. At the end of July 1995, and without the consent of Mr. Robinson, Mrs. Robinson brought the children to Aspen, Colorado, where they moved in with her father and step- mother.

That fall, Benjamin was enrolled in the third grade at Aspen Elementary, where Mrs. Robinson worked part-time, and Stephanie began pre-school.

In January 1996 Mrs. Robinson and the children moved into their own apartment in Glenwood Springs, approximately 42 miles from Aspen. Despite the move, Mrs. Robinson continued to work and Benjamin finished the school year at Aspen Elementary. With the help of public assistance programs, Mrs. Robinson was eventually able to quit her job and begin college-level coursework emphasizing computers. After moving to Colorado, the children participated in several extra-curricular activities. Benjamin started to play hockey, joined the Cub Scouts and Kampus Club, played soccer, and briefly participated in the Aspen "Buddy" program. Stephanie belonged to the Brownies and regularly attended her brother's hockey games. Mrs. Robinson and the children frequently visit, or are visited by, her extended family and attend church together. They have received psychological counseling.

Mr. Robinson visited his family in Aspen in September 1995, but was unable to resolve matters. He next visited Colorado from July through September 1996. Since his return to England, he had not seen them.

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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.

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In Pesin v. Rodriguez, 244 F.3d 1250 (11th Cir. 2001) the fugitive disentitlement doctrine was invoked. Pesin sought the return of his two children to Venezuela from the United States, where they were being held by the Mother. The Federal District Court issued a warrant for the Mother's arrest when she failed to appear in court and return the children to Venezuela after the petition was granted. The Mother appealed and the Eleventh Circuit Court of Appeals held: A [The Mother] has repeatedly defied the court orders and ignored contempt sanctions and has continued to evade arrest. Her behavior to date leaves little doubt that she would defy an adverse ruling. Moreover, it would be inequitable to allow [the Mother] to use the resources of the courts only if the outcome is a benefit to her. We cannot permit [the Mother] to reap the benefits of a judicial system the orders of which she has continued to flaunt.

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In Antunez-Fernandes v. Connors-Fernandes, 259 F.Supp.2d 800 (N.D.Iowa 2003), the court held that inquiry into "habitual residence" focuses not upon the child's domicile, or legal residence, but where the child physically lived for an amount of time sufficient for acclimatization and which has degree of settled purpose from the child's perspective. The children's "habitual residence" was in France. The children had lived their entire life in France prior to their removal, they were born in France, and they had attended school in France.

The father had "rights of custody" under French law, which was the law of the children's habitual residence at time of their removal. French law mandated that children were subject to joint parental authority. French law prohibited a minor child from leaving home or being taken away from it without permission of a parent, and French law granted no privilege of custody to either parent.

Although the mother had obtained an "ordinance" from French court giving her permission to move from the marital home with the children to a nearby friend's home, the ordinance did not give her custody or permission to leave France with the children, and the ordinance did not impair the father's right to custody or right to exercise custody.

Efforts toward reconciliation or visitation with children, who have been wrongfully removed from their country of habitual residence, do not constitute consent to removal.

The father, who prevailed on his wrongful removal claim was entitled to recover his travel expenses, including those incurred for plane ticket, car rental, and hotel.

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In Baxter v. Baxter, 324 F.Supp.2d 536 (D. Delaware, 2004), the court noted that the Hague Convention does not define the term "habitual residence". However, in Feder v. Evans-Feder, 63 F.3d 217 (3d Cir.1995), the Third Circuit interpreted habitual residence to mean: [T]he place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a "degree of settled purpose" from the child's perspective. We further believe that a determination of whether any particular place satisfies this standard must focus on the child and consists of an analysis of the child's circumstances in that place and the parents' present, shared intentions regarding their child's presence there.

It concluded that the Child's habitual residence was Australia. The Child, until the summer of 2003, was a habitual resident of Australia. Although Petitioner, Respondent, and the Child frequently moved, Petitioner and Respondent held a shared intention, until the summer of 2003, that the Child be a habitual resident of Australia.

It also found that Petitioner consented to the Child's removal to the United States in the summer of 2003.

Petitioner and Respondent agreed that it was in the best interests of the Child to remove the Child to the United States based on the harsh living conditions the family, and particularly the Child, experienced in the Tiwi Islands. This finding was supported by the Petitioner and Respondent detailing Petitioner's purchase of one-way tickets to the United States for both Respondent and the Child, Respondent's taking her family's "paperwork" to the United States, including birth certificates, passports, marriage license, immunization records, and divorce decrees, and the hiring by Respondent's family of a contractor to enclose a porch at the home of Respondent's family to provide a permanent play room for the Child.

In Gonzalez-Caballero v. Mena, 251 F.3d 789 (9th Cir.(Ariz.) 2001) the mother, a citizen of Panama, filed petition for return of her child against child's father, an American citizen. The district court's conclusions of law and conclusions of international law are reviewed de novo. Its findings of fact are reviewed under the clearly erroneous standard.

An appellate court must accept the lower court's findings of fact unless the appellate court is left with the definite and firm conviction that a mistake has been committed.

The mother's right to return of her child under the ICARA was extinguished, where the mother had consented to the father's removal and retention of the parties' child from Panama to the United States, even though the mother subsequently changed her mind.

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In Currier v. Currier, 845 F.Supp. 916, 923 (D.N.H.1994) the court held that in determining grave risk, Article 13 requires the court to evaluate the surroundings to which the child is to be sent and basic personal qualities of those located there.

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In England v. England, 234 F.3d 268 (5th Cir. 2000) the Fifth Circuit found that the children of an American family that had been living in Australia had to be returned to their father. The court rejected the mother's argument that the children would be subject to psychological harm if they returned to Australia. The mother argued that the oldest child, who was adopted, would be traumatized by returning to the country where she had led an unsettled life. The court also rejected the mother's argument that the child who was thirteen was old enough to have her views considered.

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In People ex rel. Ron v. Levi, 719 N.Y.S.2d 365 (App. Div. 2001) the Appellate Division held that the United States was the habitual residence of children who had lived in the United States for a year and a half before their father left the country without them.

In Miller v. Miller, 240 F.3d 392 (4th Cir. 2001) the Fourth Circuit held that Canada was the habitual residence of the children; both had been born in Canada and had resided there with their mother for a substantial portion of their lives until they were removed by their father to the United States. The mere existence of a New York order granting permanent custody of the children to their American father was not in itself a defense to wrongful removal from Canada.

In Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) the Ninth Circuit interpreted the term "habitual residence" to mean that both parents had a settled intent that their children would remain in a particular country. Therefore, even though the children had been in California for fifteen months, the United States did not become the new habitual residence because the parents had not agreed that their children would abandon their residence in Israel and live permanently in the United States. The fact that the children had become adjusted to new surroundings did not mean that a new habitual residence had been acquired. The Ninth Circuit outlined the four questions that need to be answered when reviewing a Hague Abduction Convention petition: (1) When did the removal or retention at issue take place?; (2) Immediately prior to retention, in which state was the child habitually resident?; (3) Did the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual residence?; and (4) Was the petitioner exercising those rights at the time of removal or retention? In defining "habitual residence" the court has examine whether the parents both formed a "settled intent" to change the child's residence. Even when children had been in the United States for a couple of years, if the intent was always to return to Israel, then the habitual residence would be Israel..

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In Miller v. Miller, 240 F.3d 392 (4th Cir. 2001) the Fourth Circuit held that because Canada was the habitual residence, a mother's Canadian custody order, issued after she had filed for divorce in New York, was entitled to deference even though the father had obtained a valid custody order in New York.

In Freier v. Freier, 969 F.Supp. 436, 443 (E.D.Mich.1996), the district court found that Israel in 1996 was not a "zone of war" under Article 13(b). In so finding, the court determined that the fighting was fifteen to ninety minutes from the children's home, no schools were closed, businesses were open, and the mother was able to travel to and from the country. No subsequent case has found that Israel is a "zone of war" under the Convention. In fact, there does not appear to be another case that finds any country a "zone of war" under the Convention.

In Ly v. Heu, 296 F.Supp.2d 1009 (D.Minn. 2003) the father, a resident of France, established that the child's mother wrongfully removed the child from France by moving to the United States after their divorce; the father and mother had joint legal custody of the child under French law that applied to the parties' divorce. Legal custody under French law included the right to determine the child's place of residence, and the mother did not notify the father or seek leave of a French court prior to bringing the child to the United States even though the father exercised his custody rights by visiting the child with reasonable frequency prior to the child's removal.

In determining whether the settled exception defense applies the court is permitted to consider any relevant factor, including the particular circumstances surrounding the child's living environment; such factors include the age of the child, the stability of the child's residence in the new environment, whether the child attends school or day care consistently, whether the child attends church regularly, the stability of the mother's employment or other means of support, whether the child has friends and relatives in the area, and to what extent the child has maintained any ties to the country of habitual residence.

The mother established that the child was settled in a new environment in the United States. The child lived continuously in the same city since her removal and had only vague memories of France, attended the same school regularly and was thriving in academic and extra-curricular activities, developed a strong bond with the step-father, step-siblings, and step-fathers' extended family, and had no apparent ties to France other than the father's residence there.

In re Robinson, 983 F.Supp. 1339 (D.Colo. 1997), the court held that the fact that the father entered into a voluntary, court-approved "undertaking," in which he agreed, not to communicate with the mother or return to the matrimonial home without her consent, did not compel a finding that he no longer had rights to custody under the Law of the United Kingdom.

The father's absence from the home did not constitute failure to exercise custody rights at the time of removal, where the mother had used the threat of judicial authority to obtain the father's agreement to keep away from the home.

The ten-year-old child's objection to returning to his father in the United Kingdom

was the product of undue influence, and thus would be afforded no weight. Acknowledging that a counselor gave him "a few ideas" which were that "I like it here and I'm settled in," the child used a term, i.e., "settled," which was the most significant legal term of the dispute and was not the language of a ten-year-old.

The court held that the wrongfully removed six-year-old and ten-year-old children were "settled" in the United States, and thus did not have to be returned to their father where they had lived in the same area for 22 months, were actively involved with extended family, were doing well in school, participated in extracurricular activities, and had made friends.

Philip Robinson petitioned for the return of his children, Benjamin and Stephanie, to Great Britain. The children's mother, removed them from Great Britain and they resided with her in Colorado.

In 1979 Petitioner and Respondent were married in Colorado, and moved to England soon thereafter where both children were born. The family lived together in England until June 1995, when Mrs. Robinson and the children moved out of the family residence.

While separated, Mrs. Robinson applied to a local court for a restraining order against Mr. Robinson. The parties entered into a court approved "undertaking," in which Mr. Robinson agreed to vacate the home pending resolution of the issues between them. Although the undertaking did not address custody of the children, they remained with Mrs. Robinson. At the end of July 1995, and without the consent of Mr. Robinson, Mrs. Robinson brought the children to Aspen, Colorado, where they moved in with her fatherand step- mother.

That fall, Benjamin was enrolled in the third grade at Aspen Elementary, where Mrs. Robinson worked part-time, and Stephanie began pre-school. In January 1996 Mrs. Robinson and the children moved into their own apartment in Glenwood Springs, approximately 42 miles from Aspen. Despite the move, Mrs. Robinson continued to work and Benjamin finished the school year at Aspen Elementary. With the help of public assistance programs, Mrs. Robinson was eventually able to quit her job and begin college-level coursework emphasizing computers. After moving to Colorado, the children participated in several extra-curricular activities. Benjamin started to play hockey, joined the Cub Scouts and Kampus Club, played soccer, and briefly participated in the Aspen "Buddy" program. Stephanie belonged to the Brownies and regularly attended her brother's hockey games. Mrs. Robinson and the children frequently visit, or are visited by, her extended family and attend church together. They have received psychological counseling.

Mr. Robinson visited his family in Aspen in September 1995, but was unable to resolve matters. He next visited Colorado from July through September 1996. Since his return to England, he had not seen them.

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.

In Pesin v. Rodriguez, 244 F.3d 1250 (11th Cir. 2001) the fugitive disentitlement doctrine was invoked. Pesin sought the return of his two children to Venezuela from the United States, where they were being held by the Mother. The Federal District Court issued a warrant for the Mother's arrest when she failed to appear in court and return the children to Venezuela after the petition was granted. The Mother appealed and the Eleventh Circuit Court of Appeals held: A [The Mother] has repeatedly defied the court orders and ignored contempt sanctions and has continued to evade arrest. Her behavior to date leaves little doubt that she would defy an adverse ruling. Moreover, it would be inequitable to allow [the Mother] to use the resources of the courts only if the outcome is a benefit to her. We cannot permit [the Mother] to reap the benefits of a judicial system the orders of which she has continued to flaunt.@

In Antunez-Fernandes v. Connors-Fernandes, 259 F.Supp.2d 800 (N.D.Iowa 2003), the court held that inquiry into "habitual residence" focuses not upon the child's domicile, or legal residence, but where the child physically lived for an amount of time sufficient for acclimatization and which has degree of settled purpose from the child's perspective.

The children's "habitual residence" was in France. The children had lived their entire life in France prior to their removal, they were born in France, and they had attended school in France.

The father had "rights of custody" under French law, which was the law of the children's habitual residence at time of their removal. French law mandated that children were subject to joint parental authority. French law prohibited a minor child from leaving home or being taken away from it without permission of a parent, and French law granted no privilege of custody to either parent.

Although the mother had obtained an "ordinance" from French court giving her permission to move from the marital home with the children to a nearby friend's home, the ordinance did not give her custody or permission to leave France with the children, and the ordinance did not impair the father's right to custody or right to exercise custody.

Efforts toward reconciliation or visitation with children, who have been wrongfully removed from their country of habitual residence, do not constitute consent to removal.

The father, who prevailed on his wrongful removal claim was entitled to recover his travel expenses, including those incurred for plane ticket, car rental, and hotel.

In Baxter v. Baxter, 324 F.Supp.2d 536 (D. Delaware, 2004), the court noted that the Hague Convention does not define the term "habitual residence". However, in Feder v. Evans-Feder, 63 F.3d 217 (3d Cir.1995), the Third Circuit interpreted habitual residence to mean: [T]he place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a "degree of settled purpose" from the child's perspective. We further believe that a determination of whether any particular place satisfies this standard must focus on the child and consists of an analysis of the child's circumstances in that place and the parents' present, shared intentions regarding their child's presence there.

It concluded that the Child's habitual residence was Australia. The Child, until the summer of 2003, was a habitual resident of Australia. Although Petitioner, Respondent, and the Child frequently moved, Petitioner and Respondent held a shared intention, until the summer of 2003, that the Child be a habitual resident of Australia.

It also found that Petitioner consented to the Child's removal to the United States in the summer of 2003.

Petitioner and Respondent agreed that it was in the best interests of the Child to remove the Child to the United States based on the harsh living conditions the family, and particularly the Child, experienced in the Tiwi Islands. This finding was supported by the Petitioner and Respondent detailing Petitioner's purchase of one-way tickets to the United States for both Respondent and the Child, Respondent's taking her family's "paperwork" to the United States, including birth certificates, passports, marriage license, immunization records, and divorce decrees, and the hiring by Respondent's family of a contractor to enclose a porch at the home of Respondent's family to provide a permanent play room for the Child.

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In Gonzalez-Caballero v. Mena, 251 F.3d 789,(9th Cir.(Ariz.) 2001) the mother, a citizen of Panama, filed petition for return of her child against child's father, an American citizen. The district court's conclusions of law and conclusions of international law are reviewed de novo. Its findings of fact are reviewed under the clearly erroneous standard.

An appellate court must accept the lower court's findings of fact unless the appellate court is left with the definite and firm conviction that a mistake has been committed.

The mother's right to return of her child under the ICARA was extinguished, where the mother had consented to the father's removal and retention of the parties' child from Panama to the United States, even though the mother subsequently changed her mind.

In Currier v. Currier, 845 F.Supp. 916, 923 (D.N.H.1994) the court held that in determining grave risk, Article 13 requires the court to evaluate the surroundings to which the child is to be sent and basic personal qualities of those located there.

In England v. England, 234 F.3d 268 (5th Cir. 2000) the Fifth Circuit found that the children of an American family that had been living in Australia had to be returned to their father. The court rejected the mother's argument that the children would be subject to psychological harm if they returned to Australia. The mother argued that the oldest child, who was adopted, would be traumatized by returning to the country where she had led an unsettled life. The court also rejected the mother's argument that the child who was thirteen was old enough to have her views considered.

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In People ex rel. Ron v. Levi, 719 N.Y.S.2d 365 (App. Div. 2001) the Appellate Division held that the United States was the habitual residence of children who had lived in the United States for a year and a half before their father left the country without them.

In Miller v. Miller, 240 F.3d 392 (4th Cir. 2001) the Fourth Circuit held that Canada was the habitual residence of the children; both had been born in Canada and had resided there with their mother for a substantial portion of their lives until they were removed by their father to the United States. The mere existence of a New York order granting permanent custody of the children to their American father was not in itself a defense to wrongful removal from Canada.

In Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) the Ninth Circuit interpreted the term "habitual residence" to mean that both parents had a settled intent that their children would remain in a particular country. Therefore, even though the children had been in California for fifteen months, the United States did not become the new habitual residence because the parents had not agreed that their children would abandon their residence in Israel and live permanently in the United States. The fact that the children had  become adjusted to new surroundings did not mean that a new habitual residence had been acquired. The Ninth Circuit outlined the four questions that need to be answered when reviewing a Hague Abduction Convention petition: (1) When did the removal or retention at issue take place?; (2) Immediately prior to retention, in which state was the child habitually resident?; (3) Did the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual residence?; and (4) Was the petitioner exercising those rights at the time of removal or retention? In defining "habitual residence" the court has examine whether the parents both formed a "settled intent" to change the child's residence. Even when children had been in the United States for a couple of years, if the intent was always to return to Israel, then the habitual residence would be Israel..

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In Freier v. Freier, 969 F.Supp. 436, 443 (E.D.Mich.1996), the district court found that Israel in 1996 was not a "zone of war" under Article 13(b). In so finding, the court determined that the fighting was fifteen to ninety minutes from the children's home, no schools were closed, businesses were open, and the mother was able to travel to and from the country. No subsequent case has found that Israel is a "zone of war" under the Convention. In fact, there does not appear to be another case that finds any country a "zone of war" under the Convention.

In Danaipour v McLeary --- F.3d C , 2004 WL 2283828 (1st Cir.(Mass. ) the Court of Appeals held that the evidence supported the finding of sexual abuse of the youngest daughter and that the district court was not required to inquire further into the remedies available through Swedish courts upon finding that psychological harm would be a consequence of the daughters' return to Sweden. Kristina McLarey, estranged from her then-husband, Iraj Danaipour, in June 2001 removed her two young daughters, A.D. and C.D., from Sweden, the country of habitual residence, and brought them to the United States in violation of a Swedish Court order. A.D. was then seven and C.D. was almost three years old. Danaipour filed suit in the United States in state court; the case was removed to federal court, and he sought to have the children returned pursuant to the Hague Convention. McLarey responded to Danaipour's action by claiming the return would cause grave risk of physical or psychological harm to them or otherwise place them in an intolerable situation. The mother asserted that the father had sexually abused both children and returning the two children to Sweden would cause them grave risk of harm.  The federal district court declined to resolve the question of whether either of the girls had been sexually abused, preferring that the children be returned so the courts of Sweden could resolve that issue. (Danaipour v. McLarey, 183 F.Supp.2d 311, 314 (D.Mass.2002). The Court of Appeals reversed.( Danaipour v. McLarey, 286 F.3d 1, 5 (1st Cir.2002) ("Danaipour I "). It remanded the case with instructions that the sexual abuse question must be decided (as part of the court's obligation to consider the grave risk issue), and then that the question of grave risk be addressed in light of this finding. On remand, the district court found, after trial, by clear and convincing evidence that the younger child, C.D., had been sexually abused by her father but that the older daughter, A.D., had not been. The court also found that there would be a grave risk of harm to and an intolerable situation for both children if the court ordered them returned to Sweden, where their father continues to live. The father appealed from that decision.

The Court of Appeals held that the court's findings that the return of the children to Sweden would cause grave harm to the psychological health of the children was supported by the record. That finding rendered immaterial Danaipour's arguments that the courts of Sweden could take ameliorative actions to prevent further harm once  the children had been returned. In such circumstances, Article 13(b) does not require separate consideration either of undertakings or of steps which might be taken by the courts of the country of habitual residence. Danaipour cited the holding in Danaipour I, stating the standard for qualifying for the Article 13(b) exception, for the proposition that a district court cannot properly find that an Article 13(b) exception exists unless it examines the remedies available in the country of habitual residence. The Court held that the holding in Danaipour I does not stand for the proposition that every Article 13(b) analysis requires two such distinct prongs. Danaipour I specifically identified the limited role undertakings may play in certain situations. Danaipour I also noted the great weight afforded to the State Department policy concerning undertakings in a situation involving child abuse:

If the requested state court is presented with unequivocal evidence that return would cause the child a "grave risk" of physical or psychological harm, however, then it would seem less appropriate for the court to enter extensive undertakings than to deny the return request. The development of extensive undertakings in such a context would embroil the court in the merits of the underlying custody issues and would tend to dilute the force of the Article 13(b) exception. *** (quoting Department of State Comment on Undertakings). The district court properly followed Danaipour I's mandate; its finding of the existence of sexual abuse and that the return of the children to Sweden would result in a grave risk of psychological harm was adequate to satisfy the Article 13(b) exception, and no further inquiry into remedies available to the Swedish courts was required.

In Rydder v Rydder, 49 F.3d 369 (8^th Cir.,1995) Susan Marie Rydder appealed the district court's grant of the petition brought by her husband, Bjorn Michael Rydder, for return of the couple's two children to Poland under the Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention") and its implementing legislation, the International Child Abduction Remedies Act ("ICARA"). The district court determined that Poland was the habitual residence of the children and that their mother wrongfully removed them to the United States. The Circuit Court of Appeals reversed.

Appellant, an American citizen, and appellee, a Danish citizen, were married in 1988. At the time of their marriage, both were registered residents of Sweden. Their son Bjorn Jacob was born in Stockholm on November 8, 1990, and their daughter Emmelie Marie was born in Stockholm on August 21, 1992. The parties consistently exercised joint custody of the children. Mrs. Rydder acted as their primary caretaker, while Mr. Rydder worked full-time to provide for the family's financial needs. Mr. Rydder's employer transferred him to Warsaw, Poland, in 1992, and the family was relocated with him. The district court found that the family intended to remain in Poland for two years, the duration of Mr. Rydder's employment contract, but had no definite plans following that period. The contract was since extended by one year, through September 30, 1995. All of the family members remain registered residents of Sweden. The parties have experienced marital difficulties dating at least from their arrival in Poland. In May of 1993, Mrs. Rydder, without the prior knowledge or consent of her husband, left Poland with the two children and traveled to her parents' home in Iowa. She returned to Poland voluntarily after two months, but asserts that she became "fearful" with respect to her husband's behavior. On April 6, 1994, Mrs. Rydder again took the children to Iowa without previously informing their father, leaving behind a note explaining that she intended to file for divorce when she reached the United States. Although the district court acknowledged the parties' earlier disputes, it found no credible evidence that the children had experienced or would risk physical or psychological harm in Poland.

On September 30, 1994, Mr. Rydder petitioned the district court for the return of his children to either Sweden or Poland under the Hague Convention and ICARA. During the one-day bench trial, Mr. Rydder testified that he was willing either to allow his wife to rejoin him in Poland or to hire an au pair to care for the children. The district court ordered the return of the children to Poland. Subsequently, the district court ordered Mrs. Rydder to pay all of Mr. Rydder's attorney fees, legal costs, and expenses relating to the return of the children. The attorney fees and legal costs total $18,487.42, and the related expenses total 9,667.40. Mrs. Rydder owned stock valued at $18,683, and has worked sporadically as a substitute teacher since her return to Iowa. Her own legal expenses were estimated at $8,506.40.

The Court of Appeals pointed out that although this is a case of first impression in the Eighth Circuit, the Sixth circuit court had determined that "wrongful removal" is a term of art not strictly defined in the Convention. (Citing Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir.1993). It does not require an ad hoc determination of the underlying merits or a balancing of the equities. It agreed with this assessment of a court's duty under the Hague Convention. Article 19 of the Convention and ICARA, 42 U.S.C. ' 11601(b)(4), do not allow a court applying the Convention to adjudicate the merits of any underlying custody claims. Rather, in an action for the return of a child to the habitual residence, a petitioner must prove only that the child was removed or retained "wrongfully," as that term is defined in Article 3 of the Hague Convention. A respondent who opposes the return of a child may advance any of the affirmative defenses to return listed in Articles 12, 13, or 20 of the Hague Convention. It believed that a court applying the Hague Convention should construe these exceptions narrowly.

Although the Hague Convention does not define "habitual residence," a frequently-cited British case, with which it agreed, concluded that there is no real distinction between habitual and ordinary residence. (Citing Friedrich v. Friedrich, 983 F.2d at 1401, citing Re Bates, No. CA 122.89, High Court of Justice, United Kingdom (1989). That court added: It is greatly to be hoped that the courts will resist the temptation to develop detailed and restrictive rules as to habitual residence, which might make it as technical a term as common law domicile. The facts and circumstances of each case should continue to be assessed without resort to presumptions or presuppositions. Thus the district court's treatment of the children's Swedish residence registration as a legal fiction of little consequence to the determination of their habitual residence was entirely appropriate.

Mrs. Rydder attempted on appeal to overturn the district court's rejection of an Article 13(b) exception to return of the children under the Hague Convention. Article 13(b) allows a court to deny return of a child to the habitual residence if "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." ICARA requires that a respondent opposing return of a child under Article 13(b) must establish this exception by clear and convincing evidence. Although Mrs. Rydder cited several authorities that recognize that separating a child from his or her primary caretaker creates a risk of psychological harm the district court was presented with no specific evidence of potential harm to Bjorn Jacob or Emmelie Marie Rydder. The district court found both parties to be "intelligent, mature, loving parents," and this finding was not clearly erroneous. Thus the district court properly determined, on the basis of the evidence presented, that Article 13(b) was not an obstacle to the return of the children to Poland.

ICARA requires any court ordering the return of a child under the Hague Convention to award fees and costs to the successful party unless such order would be "clearly inappropriate." Because of Mrs. Rydder's straitened financial circumstances, however, we find the award of fees and legal costs to Mr. Rydder so excessive as to constitute an abuse of discretion. An award of $10,000, rather than $18,487.42, was more equitable in this particular case.

In Silverman v Silverman, 338 F.3d 886 (8^th Cir, 2003) the father brought action against the mother, under the International Child Abduction Remedies Act (ICARA). The United States District Court granted judgment for the mother. The Court of Appeals reversed, holding that the "habitual residence" of children changed from Minnesota to Israel and the mother failed to show that Israel was "zone of war."

Robert Silverman and Julie Hechter (Julie) met in Israel in 1988 and married in Seattle, Washington, in 1989. They had two children. The family lived in Plymouth, Minnesota, until their move to Israel in July of 1999. The the move to Israel was Julie's idea and that she was the one pushing for the family to make the move. They sold their Minnesota home in January of 1999, Robert applied for and made Aliyah (immigration) to Israel, and the family moved all of their possessions and their family pets to Israel. While both Robert and Julie set the move up to be permanent, Julie stated in the district court that she was torn about the move, but went ahead with it as a final effort to reconcile the couple's failing marriage. Both Robert and Julie obtained employment in Israel. The family lived with relatives in Israel until November 1999, when they rented an apartment and signed a one-year lease. In October 1999, Julie flew to the United States to file for bankruptcy in Minnesota. Julie returned to Israel later that month to discover that Robert had obtained a Tzav Ikuv (restraining order), which prevented her from leaving Israel, and that he had put the children's passports and birth certificates in his father's safe deposit box. Robert told her at this point that he knew about the affair she had been having with a man from Massachusetts. Robert cancelled the restraining order on November 3, 1999, after they decided to try to reconcile their marriage. Robert testified in the district court that he would not have allowed Julie to leave Israel with the children at any point between October 1999 and June 2000. During this time, Julie stated that Robert threatened her, used force against her and attempted to coerce her. In January 2000, Julie and Robert returned to Minnesota without the children to complete bankruptcy proceedings and they both stated, under oath, that their permanent address was Plymouth, Minnesota. Both of them subsequently returned to Israel. In April 2000, Robert and Julie signed and filed a joint United States income tax form for 1999, which listed their address as Plymouth, Minnesota.

While in Israel, Sam enrolled in an elementary school and Jacob enrolled in preschool. They made friends, learned to speak Hebrew and did well in school. Sam participated in extracurricular activities at his school. During this time, Julie counseled with an Israeli attorney and was told she would probably not get custody of the children through the Israeli Rabbinical court if she separated from Robert in Israel. Robert found out about this discussion and filed for divorce in Rabbinical court. He later cancelled this proceeding.

At the end of June 2000, Robert allowed Julie to leave Israel with the two children for what she represented would be a summer trip to the United States. She purchased round-trip tickets with the return trip scheduled for August 30, 2000. At the airport before their departure, Robert threatened Julie, apparently because of his continuing concern that she would not return to Israel with the children, a fear soon realized. She testified that it was at that moment at the airport that she decided not to return to Israel. Julie filed for legal separation from Robert and for custody of the two children in Minnesota state court on August 10, 2000. Robert was served summons in Israel. Robert immediately moved for dismissal of the action, arguing that the state court lacked authority to hear the custody issues because there had not yet been the necessary determinations of "wrongful removal and retention" and "habitual residence" as mandated by the Hague Convention and ICARA, determinations designed to establish whether Israel or the United States had jurisdiction to hear a child custody case.

On August 24, 2000, fourteen days after Julie's Minnesota action had been commenced, Robert filed in Israel a "Request for Return of Abducted Children" with the National Center for Missing and Exploited Children (NCMEC), pursuant to the Hague Convention. On September 22, 2000, a NCMEC agent contacted Robert's Israeli attorney and requested that the attorney obtain a determination from the Israeli courts as to whether Julie had wrongfully removed or retained the children within the meaning of the Hague Convention. Some time shortly thereafter, Robert filed a Hague Convention petition in Israel seeking such a determination. In addition to filing the Israeli action, Robert filed a Hague petition on October 5, 2000, in the United States District Court for the District of Minnesota seeking return of the children to Israel under the Convention. Julie was personally served summons in this matter on October 10, 2000.

On October 17, 2000, although on notice of Robert's Hague filings, a state court referee issued an interlocutory administrative order granting Julie temporary custody of the children. In February 2001 she decided to move with the two children to Massachusetts to live with her paramour. They subsequently moved.

On November 16, 2000, while both the state custody and federal Hague matters were pending in various courts in the United States, the Israeli court ruled that Israel was the place of habitual residence of Sam and Jacob as defined in the Convention and that Julie's failure to return them to Israel was prima facie evidence of wrongful retention of the children in violation of the Convention. A copy of this decision was furnished to the Israel Central Authority created by Articles 6 and 7 of the Hague Convention for use in the United States under the terms of Article 15 of the Convention. On May 4, 2001, the Minnesota trial court entered a final judgment awarding full child custody to Julie, child support from Robert and attorney fees to Julie. While this order specifically stated that the court was on notice of pending Hague Convention litigation, the court decided the custody issues anyway, applying only Minnesota law. The court pointed out that "A court may get notice of a wrongful removal or retention in some manner other than the filing of a petition for return, for instance ... from the aggrieved party (either directly or through counsel) ...." 51 Fed.Reg. 10494(III)(H) (Mar. 26, 1986)

The state court determined neither the "habitual residence" of the children nor the issue of "wrongful removal or retention" as required by and defined in the Hague Convention and ICARA. It was not asked to do so. The court, in awarding Julie custody and child support, found that Minnesota was the children's "home state" as referenced in Minnesota Statutes ' 518D.102

On May 9, 2002, the federal district court ruled in favor of Julie on Robert's Hague Convention claim, finding that Minnesota was the "habitual residence" of the children and, alternatively, that even if Israel was their habitual residence, that there was a grave risk in returning the children to Israel under the Article 13(b) exception to the Convention. Robert appealed.

The Circuit court found that the habitual residence of the children had never changed to Israel, but remained in Minnesota the entire time. It held that wrongful removal from a country does not change a child's Hague Convention habitual residence. Therefore, if the children's habitual residence changed when they moved to Israel, it did not change back when Julie removed them back to Minnesota.

It concluded that the Rooker- Feldman doctrine did not divest the lower federal courts of subject matter jurisdiction to consider and review the Hague Convention and ICARA controversies raised by Robert in the federal district court. This doctrine holds that the inferior federal courts lack jurisdiction to review a state court's final judicial determination. "Under the legislation of Congress, no court of the United States other than [the Supreme] court [can] entertain a proceeding to reverse or modify the [state court] judgment ....

It was also probable that the state judgment of May 4, 2001, was of dubious validity because the November 16, 2000, Israeli court order, finding both habitual residence of the children in Israel and wrongful removal of the children from Israel, was enforceable in the United States under the treaty and ICARA. The Israeli order directed the filing of a copy of the order with the Central Agency of Israel for use in the United States under Article 15 of the treaty. Upon such a finding and filing, Article 16 of the Convention specifically precluded Minnesota from determining custody issues involving these children.

The court articulated that the standard of review for habitual residence determinations under the Hague Convention raise mixed questions of fact and law and therefore should be reviewed de novo.

Julie conceded that she retained the children in the United States without Robert's permission and that Robert was exercising, and would have continued to exercise, his custody rights in Israel except for the removal. She argued, however, that the removal was not from the country of the children's "habitual residence," thus the Hague Convention does not apply. The district court agreed with her contention.

It stated that "Habitual residence" is not defined in the language of the Hague Convention or by ICARA. However, the text of the Convention directs courts to only one point in time in determining habitual residence: the point in time "immediately before the removal or retention." Additionally, the text of the Convention points to the child's, not the parents', habitual residence. A person may have only one habitual residence, and it should not be confused with domicile. Federal courts are agreed that "habitual residence" must encompass some form of "settled purpose." This settled purpose need not be to stay in a new location forever, but the family must have a "sufficient degree of continuity to be properly described as settled." Additionally, the settled purpose must be from the child's perspective, although parental intent is also taken into account.

The Court of Appeals held that the District court should have looked at the habitual residence of the Silverman children at the time Julie removed them from Israel, keeping in mind that they could only have one habitual residence. The court should have determined the degree of settled purpose from the children's perspective, including the family's change in geography along with their personal possessions and pets, the passage of time, the family abandoning its prior residence and selling the house, the application for and securing of benefits only available to Israeli immigrants, the children's enrollment in school, and, to some degree, both parents' intentions at the time of the move to Israel. Fairly assessing these facts, there was only one acceptable legal conclusion regarding the children's habitual residence: they were habitual residents of Israel.

The district court found that even if the children's habitual residence was in Israel, they need not be returned to Israel because they will face a "grave risk of physical harm" there. The district court reached this conclusion, in part, because the violence in Israel makes it a "zone of war," which is dangerous for the children. The Court of Appeals held that the "grave risk of physical or psychological harm" defense is an affirmative defense under Article 13(b) of the Convention that Julie must prove with clear and convincing evidence. The District Court did not court cite any evidence that these children are in any more specific danger living in Israel than they were when their mother voluntarily moved them there in 1999. Rather, the evidence centered on general regional violence, such as suicide bombers, that threaten everyone in Israel. This is not sufficient to establish a "zone of war" which puts the children in "grave risk of physical or psychological harm" under the Convention.

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In Tsarbopoulos v Tsarbopoulos, 176 F.Supp.2d 1045 (E.D. Washington) the District court held that the mother's removal of the parties' children from Greece to the United States was not actionable in a petition for return under the Hague Convention, and even if the Hague Convention was applicable, the Article 13(b) defense that grave risk of harm exists that the return of child would expose the child to physical or psychological harm was applicable. The Court held that the parties did not share a settled intent to change the family's habitual residence from the United States to Greece, and therefore, the mother did not remove the children from their habitual residence. Spousal abuse is a factor to be considered in the determination of whether the Article 13(b) defense for is applicable where grave risk exists that return of child would expose child to physical or psychological harm applies because of the potential that the abuser will also abuse the child. The burden is on removing party to prove by clear and convincing evidence the applicability of the Article 13(b) defense. There was clear and convincing evidence that there was a grave risk of physical and psychological harm to the children were the court to order children's return to Greece in view of evidence of father's physical and emotional abuse of the children and that they were settled in the state of Washington.

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In Danipour v. McLarey, 286 F.3d 1 (1st Cir., 2002) the father sought return of his eight and three year-old daughters who were removed from Sweden by the mother, in alleged violation of the Hague Convention . The District Court held that the children would be returned to Sweden, where they would reside with the mother pending a full forensic investigation of claims that the father sexually abused the children, and the mother appealed. It reviewed a district court's factual findings for clear error, and reviews its application of the Hague Convention to the facts de novo.

The court held that for purposes of the A grave risk defense, A grave risk means more than a serious risk.

Even if the conditions for a grave risk defense are met, as would permit the court to not order the return of a child to the country from which the child was wrongfully taken, the Hague Convention gives the court discretion to return the child to the country of habitual residence. The Department of State's interpretation of the Hague Convention is entitled to great weight. Sexual abuse, including abuse other than rape, particularly when such abuse occurs at the hand of a parent, is an "intolerable situation" for purpose of the grave risk defense. Penetration is not a prerequisite to a finding of sexual abuse posing a grave risk of harm to a child. A finding that a child is currently not experiencing severe psychological effects of sexual abuse is not necessarily dispositive.

The district court's determination that the children could be returned to the country from which they were wrongfully taken by mother, who alleged that children should not be returned pursuant to the grave risk defense, without first determining whether the children had been sexually abused was error; the court should have ordered a forensic evaluation to determine whether sexual abuse occurred and then determine whether the children could be returned to the locale of the alleged abuse. The court erred by ruling that a forensic sexual abuse evaluation be done in Sweden. There remained the question of whether the effect of the return on the children would undermine the validity of any examination by making it more likely that the children would not talk to those charged with determining whether or not abuse had occurred. The district court did not have authority to order a forensic sexual abuse evaluation to be done in Sweden or to order the Swedish courts to adjudicate the implications of the evaluation for the custody dispute. Thus the undertakings that required such actions were invalid, because such orders offended notions of international comity and were inadequate to protect the children. Under the Hague Convention , court-ordered undertakings that will allegedly protect a child from grave risk for only a very limited time are insufficient to defeat the grave risk defense.

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In Steffen F. v. Severina P., 966 F.Supp.2d 922 (E.Ariz. 1997), the Court held that breaking the three-year old child= s bond and attachment to the mother so that the child could be returned to his foreign father in another country after the mother wrongfully abducted the child would present a grave risk of harm. The Eighth Circuit decision of Rydder v. Rydder, 49 F.3d 369, 373 (8^th Cir.1995) suggested that  specific evidence of potential harm to a child as a result of separation from a primary caregiver may constitute grave risk of harm under the Hague Convention. There, a mother relied upon several authorities A that recognize that separating a child from his or her primary caretaker creates a risk of psychological harm. 49 F.3d 373. The Eighth Circuit declined to find a grave risk of harm, emphasizing that the mother had failed to present A specific evidence of potential harm to the children at issue. At least one previous petition pursuant to the Hague Convention had been denied because the court found that the child s return would be psychologically dangerous to the child. While the Court recognized the absence of precedential impact of any foreign court decision and the absence of precedential impact in Germany of a German court decision, Germany being a civil law country, the decision in B v. B, Family Court of Westerberg, September 29, 1992, is nevertheless instructive. B v. B was a mirror case to the instant matter. There, a German court found that grave risk of harm existed should a German child abducted from Texas and taken to Germany be returned to Texas, because of the A Intensive bond between [German] mother and child.

In Hazbun Escaf v. Rodriquez, 200 F.Supp.2d 603 (E.D.Va. 2002), the District Court held that the child was habitually resident in Colombia immediately prior to his retention in the United States. The child had lived his entire life in Colombia, attended school there, and had numerous friends and family in Columbia. The mother did not abandon the child, and thus the father's retention of the child violated the mother's custody rights under Columbian law, even though the mother had granted permission for the child to visit the father in United States for a brief period. The mother was exercising her lawful custody rights immediately prior to the father's retention of the child in the United States, and she promptly and steadfastly objected to the child= s retention and vigorously pursued steps to compel the child's return to Colombia.

Evidence that American businessmen generally, and the father in particular, faced a heightened risk of kidnapping and violence was insufficient to establish that the child was in grave risk of harm.

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In Locicero v. Lurashi, ___ F.Supp. 2d _____, 2004 WL 1368412 (D.Puerto Rico, 2004), the District Court, held that the evidence supported the magistrate judge's conclusions that the wrongfully retained child's repatriation to Argentina would not place him in grave risk of psychological and/or physical harm, and that the thirteen-year-old child had not attained an age and degree of maturity at which it would be appropriate to take his views into account.

The child would not suffer psychological harm if returned to Argentina. When interpreting Article 13(b) of the Hague Convention courts have found that "situations where repatriation might cause inconvenience or hardship, eliminate certain opportunities, or not comport with the child's preferences" do not constitute a grave risk of harm. Courts have uniformly found "grave risk" under Article 13(b) when a child faces a real risk of being hurt, physically or psychologically, as a result of repatriation. The disruption of the usual sense of attachment that arises during most long stays in a single place with a single parent should not be a 'grave' risk of harm for purposes of the Convention. There was not a scintilla of evidence that the child subject to this dispute would be face any risk either physical or psychological if returned to Argentina.

The Magistrate Judge, who met in camara with the child, found the child to be articulate and mature enough to express his desire to stay in Puerto Rico, but nonetheless, did not find the child's opinion on returning to Argentina to be conclusive. Like the "grave risk" exception previously discussed, the "age and maturity" exception is to be applied narrowly. The fact that the child prefers to remain in Puerto Rico, because he has good grades, has friends and enjoys sport activities and outings, is not enough for this Court to disregard the narrowness of the age and maturity exception to the Convention's rule of mandatory return. The Court exercised its discretion to order the child's return to Argentina despite the child's expressed preference to remain in Puerto Rico.

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In Raijmakers-Eghaghe v. Haro, 131 F.Supp.2d 953 (E.D.Mich. 2001), the ex-wife, a Dutch citizen living in the Netherlands, sued ex-husband, an American citizen living in Michigan, seeking the return of the children to the Netherlands. The District Court, held that the ex-husband failed to prove that the children would face a grave risk of physical or psychological harm were they repatriated to the Netherlands, and the genuine issues of material fact precluded summary judgment as to the applicability of ICARA's maturity exception. The court held that it was not precluded, as a matter of law, from taking into account the views of an eight-year-old child under the maturity exception of the International Child Abduction Remedies Act as the Convention contained no age limit for applying this exception.

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In re Walsh, 31 F.Supp.2d 200 (D.Mass. 1998), the District Court, held that the evidence did not establish that return of children would expose children to grave threat of physical or psychological harm, and the father was entitled to return of the children the mother had abducted.

Evidence that the foreign father was intemperate and often unkind to the children, that he spanked them for minor infractions, and exposed them to verbal and physical conflict within the home, and that the daughter suffered from anxiety and stress related conditions was insufficient to establish that the return of the children to the father would expose children them to a grave threat of physical or psychological harm.

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In Whallon v. Lynn, 230 F.3d 450 (1st Cir. (Mass.) 2000), the Court of Appeals held that the father had "rights of custody" under Mexican law, which was law of her habitual residence at time of her removal, as the doctrine of patria potestas gave the father custodial rights greater than mere visitation rights, notwithstanding the Mexican court's rejection of father's petition to terminate the mother's parental rights. The Affidavit of a Mexican attorney indicating that both parents exercise patria potestas rights under Mexican law and stating that both parents must consent to the removal of the child under Mexican law was an acceptable form of proof in determining issues of foreign law, and was permitted under the Hague Convention.

The child's return to Mexico would not subject child to grave risk of physical or psychological harm or otherwise intolerable situation, notwithstanding alleged instances of verbal and physical abuse committed by father, who resided in Mexico, as none of abusive conduct was directed at the child. An opposing return must establish that the alleged physical or psychological harm is a great deal more than minimal; the harm must be something greater than would normally be expected on taking a child away from one parent and passing him or her to another, and courts are not to engage in a custody determination or to address such questions as who would be the better parent in the long run. The father did not acquiesce the mother's removal of the child from Mexico, even though he did not institute formal custody proceedings and wrote a note allegedly acknowledging that the mother could relocate with the child, in light of the father's subsequent increasing involvement in child's life, and the father's prompt and persistent actions seeking the child's return to Mexico following her removal.

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In Bocquet v Ouzid, 225 F.Supp.2d 1337 (2003) the former wife filed a petition against former the husband pursuant to the Hague Convention seeking the immediate return of the couple's child. The District Court held that the child's habitual residence immediately before the date of the alleged wrongful removal was France. The former husband did not have the wife's permission to remove the child from France, and under French law it was violation of the wife's custody rights. The wife was exercising her custody rights at time of the child's removal. The child was not settled in the United States, and the wife did not consent or acquiesce in the child's retention in the United States. In order to establish a prima facie case of wrongful removal or retention under the Hague Convention, as implemented by International Child Abduction Remedies Act (ICARA), a petitioner must show by a preponderance of the evidence that the habitual residence of the child immediately before the date of the alleged wrongful removal was in the foreign country; that the removal breached the petitioner's custody rights under the foreign country's law; and that the petitioner was exercising custody rights at the time of the removal. A district court considering an International Child Abduction Remedies Act (ICARA) petition cannot decide the underlying custody dispute, but only has jurisdiction to decide the merits of the wrongful removal claim. For purposes of the former wife's petition under the Hague Convention the child's habitual residence immediately before the date of the alleged wrongful removal was France, though the former wife and former husband both traveled with the child during the period they lived in France. The evidence established that the family was living together in France at the time the former husband left with the child, during the period relevant under Hague Convention and ICARA, the child spent the vast majority of the time in France and attended pre-schools there, there was no settled parental intent to leave France, and former wife signed a three-year lease on her apartment and former husband had applied for a temporary residency permit. The law of the country in which a child was habitually resident governs decisions as to whether custody rights existed at the time of removal, and it permits judicial notice to be taken of that country's law. The former husband did not have the wife's permission to remove child from France, and under French law it was violation of wife's custody rights; wife did not know that husband was planning to take child to Algeria, she never gave him permission to do so, she immediately reported former husband's actions to local police, and husband did not seek or receive wife's permission to permanently leave France with child. The wife was exercising her custody rights at time of child's removal from country of his habitual residence; during her separations from child she was in telephone and mail contact with him, even when former husband traveled to other countries with child, wife would often meet them and spend time with child, wife arranged for child to attend school in France, traveled with him on vacations, and arranged for his childcare when husband was out of the country. The Statute of limitations period began to run on the former wife's petition against the former husband pursuant to the Hague Convention on the date the wife confirmed the child's new address in United States, and thus her petition was timely. Even if the husband did not conceal the child's whereabouts in Algeria, she was unable to utilize the Hague Convention there because Algeria was not a signatory to the Convention, and she attempted to secure the child's return pursuant to the Franco-Algerian treaty during that time. By the time she was able to utilize the Hague Convention, the husband concealed the child's whereabouts. The Child was not settled in the United States. The husband did not offer any evidence that the child had been in school, been involved in a play group, attended any religious institution, played in any organized sport teams, or established any other significant connections in United States. The child had a maternal grandfather, an aunt, and a cousin in France, and had already attended two pre-schools there. The purported agreement between the former wife and former husband did not establish that the wife acquiesced to child's retention in the United States. When the document was created, the child had already been taken from France without the former wife's consent, the wife had not seen him for six months, and although the wife apparently attempted to work toward some resolution of the situation directly with the husband, she continued to seek legal remedies both through French courts and through international agreements, first utilizing the Franco Algerian treaty and then the Hague Convention.

In Furnes v Reeves, 362 F.3d 702 (11^th Cir., 2004) Plaintiff Furnes filed a petition under the International Child Abduction Remedies Act seeking the return of his daughter Jessica to Norway from Georgia, where she resided with her mother, Defendant Reeves. Jessica was born in Norway in 1996 and lived there until 2001, when her mother visited the United States and later refused to bring Jessica back to Norway. After an evidentiary hearing, the district court denied Plaintiff's ICARA petition. The 11^th circuit reversed.

Plaintiff, a citizen and resident of Norway, and Defendant, a citizen and resident of the United States, were married in 1994 and resided in Norway. Their daughter Jessica was born on September 17, 1996, in Norway, and resided with both parents until they separated in January of 1998. On August 25, 1999, the Bergen City Court in Norway entered an order granting Plaintiff Furnes custody of his daughter Jessica, and mere access rights to her mother, Defendant Reeves. Defendant appealed the judgment of the Bergen City. In 2001, the parties reached an agreement regarding custody, and the appeal was dismissed. Pursuant to the Agreement, the parties would maintain "joint parental responsibility" for their daughter under Norwegian law; Jessica would live with her mother; and her father would have access to their daughter on certain days and at certain times. The term "joint parental responsibility" used in the Agreement had a designated meaning under Norwegian law. In addition to access rights, Plaintiff Furnes had additional rights associated with "joint parental responsibility". Under Norway's Act No. 7 of 8 April 1981 relating to Children and Parents (the "Children Act"),parental responsibility is broadly defined to include the right "to make decisions for the child in personal matters." Where parents exercise "joint parental responsibility" but the child lives with only one parent, the parent with whom the child resides has decision-making authority "concerning important aspects of the child's care," but not all aspects of the child's care. Plaintiff Furnes still retains some decision-making authority over some aspects of the child's care under <section> 35(b) and for the child in other personal matters under <section> 30. In addition, while the parent with whom the child resides has the authority under <section> 35b to determine where the child will live within Norway, section 43 of the Children Act grants a parent with joint parental responsibility, here Furnes, decision-making authority over whether the child lives outside Norway. Section 43 provides that both parents must consent to the child moving abroad. Plaintiff Furnes's joint parental responsibility effectively gave him the right, generally referred to as a "ne exeat " right, to determine whether Jessica can live outside of Norway with her mother.

In May of 2001, Defendant Reeves proposed that Jessica stay with Furnes for a longer period than scheduled in May 2001 and in the fall of 2001 in exchange for Furnes's consent to Jessica spending the entire summer in the United States with Reeves. Reeves wanted to take Jessica to spend the summer of 2001 with her family. Furnes agreed, with the clear expectation that Jessica would return to start school in Norway in the Fall of 2001. According to Furnes, Defendant Reeves neither returned nor contacted him to inform him of her whereabouts. When Reeves failed to contact him at the end of the summer 2001, he began ceaseless efforts to locate Defendant Reeves and Jessica. On November 4, 2002, Plaintiff Furnes filed a Petition for Return of Child to Petitioner under ICARA. After an evidentiary hearing, the district court concluded that Defendant Reeves's removal of Jessica from Norway violated Plaintiff Furnes's rights to his daughter under Norwegian law. The district court further found (1) that Plaintiff Furnes was a credible witness, (2) that Furnes had not acquiesced in Defendant Reeves's removal of Jessica from Norway, (3) that Furnes had been unable to locate Reeves and Jessica for many months after the removal, and (4) that his ICARA petition had been timely filed within one year of removal, in accordance with the Hague Convention. The district court, however, concluded that Plaintiff Furnes was exercising mere access rights coupled with a ne exeat right under Norwegian law--not custody rights--over Jessica at the time of removal. On that basis, the district court decided that it was not authorized to order the return of the  child pursuant to the Convention and ICARA, and denied the petition.

The 11^th Circuit held that Furnes's rights to his daughter under Norwegian law were the type of rights that entitled him to the return of his child under the express terms of the Hague Convention. Article 12 of the Hague Convention establishes the general rule that a child who has been "wrongfully removed or retained" within the meaning of the Convention shall be returned unless more than a year has elapsed between the removal and the date of commencement of the proceedings and the child has become settled. Article 3 of the Hague Convention outlines the conduct that is "wrongful" for purposes of Article 12. Pursuant to Article 3, the removal or retention of a child is wrongful if it violates the "rights of custody" of another person, either jointly or alone, and those "rights of custody" were actually being exercised at the time of the removal or retention or would have been exercised absent the removal or retention. The Hague Convention does not include an exhaustive list of rights that constitute "rights of custody." However, Article 5 distinguishes between "rights of custody" and "rights of access" as follows: a) "rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence; b) "rights of access" shall include the right to take a child for a limited period of time to a place other than the child's habitual residence. "The rights of custody ... may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State."

Article 13 of the Convention sets forth certain narrow exceptions to Article 12's mandatory-return rule. Under Article 13, a court is not bound to order the child's return if the person opposing the return establishes that "the person, institution or other body having the care of the person of the  child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention...."

The court held that A rights of custody" included "rights relating to the care of the person of the child," and in particular, "the right to determine the child's place of residence." Furnes's ne exeat right under <section> 43 of the Norwegian Children Act granted Furnes the substantive right (albeit a joint right) to determine whether the child lives within or outside Norway, and thus the right to determine jointly with Reeves the child's place of residence. This ne exeat right in <section> 43, especially in the context of Furnes's retained rights under <section> 30, constitutes a "right of custody" as defined in the Convention.

Plaintiff Furnes had the right to decide whether or not Jessica can move outside Norway with her mother, and thereby had the joint right to decide whether Jessica's place of residence will be outside or within Norway.

The Convention does not explicitly define