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Belay v Getachew, 272 F.Supp.2d 553,(D. Md, 2003)

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 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.