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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.
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