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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.
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