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.
