Order limited Jenna's summer visits to the United States to a duration of two

months or less. After her summer visits, she always returned to Ireland to spend

the rest of the year with Flynn and attend school. Borders did not dispute this time line and offered no relevant evidence in response to support his contention that Jenna was a habitual resident of the United States at the time she was retained by Borders in August of 2006. Borders continues to rely on an agreement that is not included in the High Court Order that Jenna would leave Ireland and spend her secondary school years in the United States. But Borders conceded that he and Flynn mutually agreed to the part of the High Court Order that states that Jenna would spend most of each year and attend school in Ireland. Essentially, Flynn and Borders agreed back in 2001 that Jenna's habitual residence was Ireland. Borders's present intentions for Jenna, standing alone, did not serve to change her habitual residence at the time

she was retained by Borders on August 15, 2006. Based on the evidence presented by the parties, it appeared that Jenna visited Borders once a year for the temporary purpose of spending the summer with him in the United States and then returned to Ireland. This was the pattern she had followed since 2002, when the High Court Order states that she was to begin spending two months of each year with Borders. The Court found that Jenna was a habitual resident of Ireland, the country where she lived with her mother since 1997 and attended primary school, immediately prior to her retention by Borders in the United States. Flynn submitted the High Court Order as evidence that she has joint custody of Jenna and that per this order, Borders only had custody from June 15th to August 15th and his retention of Jenna past August 15th is wrongful. Once it is determined that a party had valid custody rights under the country of origin's laws, very little is required of the applicant in support of the allegation that custody rights have actually been or would have been exercised. The applicant need only provide some preliminary evidence that he or she actually exercised custody of the child, for instance, took physical care of the child. Borders responded that the Georgia Order from 1998 that awarded him sole custody of the children was the order that governs the parties' custody dispute. But as noted by the Convention and several courts, in reviewing this petition, the Court only has jurisdiction to decide the merits of the abduction claim, not the merits of any underlying custody dispute. This Court must look to the laws of the country of origin, that is, Ireland, and decide whether Flynn was

exercising valid custody rights over Jenna. Pursuant to the High Court Order, Flynn had valid custody rights under the law of Ireland and would have been exercising such rights but for Borders's retention of Jenna in August of 2006. Borders had not returned Jenna to Ireland pursuant to that order; therefore, Flynn met her burden of showing wrongful retention and the burden now shifts to Borders. Borders argued that there is a grave risk that returning Jenna to Flynn would expose her to physical or psychological harm or otherwise place her in an intolerable situation. The Article 13(b) "grave risk" exception is "narrowly drawn." The risk must be "grave," and when determining whether a grave risk of harm exists, courts must be attentive to the purposes of the Convention. For example, the harm must be "something greater than would normally be expected on taking a child away from one parent and passing him to another"; otherwise, the goals of the Convention could be easily circumvented. In general, respondents who successfully rely on this exception have alleged sustained physical or psychological abuse directed at the child. Borders submitted the affidavit of his son, Jesse Borders. Other than Borders's allegations in his response, this affidavit represented the only evidence to support his argument that returning Jenna to Flynn will place her at risk for abuse. The situations described by Jesse in his affidavit wer clearly unsettling: his mother was frequently intoxicated; she may be smoking marijuana; his mother slapped and hits Jenna "from time to time"; his mother asks him to light her cigarettes for her; during an embarrassing incident, his intoxicated mother sat on a vehicle so that her boyfriend would not drive away; during their phone conversations, his mother speaks to him in a degrading tone; his mother has stated to him and Jenna that she wanted to kill his father; and his mother has told him to lie to his father about her employment status in order to receive additional child support. The affidavit undoubtedly painted a picture of an unhappy home life for any child, but because the Court must determine whether returning Jenna to her mother presents a grave risk of harm to Jenna, only the allegations of physical abuse by Flynn towards the young girl gave the Court pause. Based on the evidence presented-a single allegation by Jesse, and notably, not Jenna-Borders had not shown by clear and convincing evidence that returning Jenna to Flynn exposed her to a grave risk of physical or psychological harm. Jesse alleged that his mother has physically abused his sister in the past, and the Court's finding that the affidavit does not present clear and convincing evidence of a grave risk of harm in no way discounted the serious nature of such an allegation. But rather than stray into the forbidden territory of analyzing which home would provide a better fit for Jenna, this Court followed the weight of authority and concluded that Jesse's allegation that his mother hit and slapped Jenna "from time to time" did not carry Borders' s burden under the exception in Article 13(b). There was no indication that Irish courts or the Irish authorities are incapable or unwilling to adequately protect Jenna. See, e.g., Protections for Persons Reporting Child Abuse Act, 1998 (Act No. 49/1998) (Ir.) available at http:// www. irish statutebook. ie/ 1998_ 49. html (last visited Jan. 10, 2007); The Commission to Inquire into Child Abuse, http:// www. childabuse commission. ie/ index. html (last visited Jan. 10, 2007). Based on one allegation from Jesse, the Court would not place conditions on Jenna's return.