Plaintiff, a citizen and resident of Norway, and Defendant, a citizen and resident of the United States, were married in 1994 and resided in Norway. Their daughter Jessica was born on September 17, 1996, in Norway, and resided with both parents until they separated in January of 1998. On August 25, 1999, the Bergen City Court in Norway entered an order granting Plaintiff Furnes custody of his daughter Jessica, and mere access rights to her mother, Defendant Reeves. Defendant appealed the judgment of the Bergen City. In 2001, the parties reached an agreement regarding custody, and the appeal was dismissed. Pursuant to the Agreement, the parties would maintain "joint parental responsibility" for their daughter under Norwegian law; Jessica would live with her mother; and her father would have access to their daughter on certain days and at certain times. The term "joint parental responsibility" used in the Agreement had a designated meaning under Norwegian law. In addition to access rights, Plaintiff Furnes had additional rights associated with "joint parental responsibility". Under Norway's Act No. 7 of 8 April 1981 relating to Children and Parents (the "Children Act"), parental responsibility is broadly defined to include the right "to make decisions for the child in personal matters." Where parents exercise "joint parental responsibility" but the child lives with only one parent, the parent with whom the child resides has decision-making authority "concerning important aspects of the child's care," but not all aspects of the child's care. Plaintiff Furnes still retains some decision-making authority over some aspects of the child's care under <section> 35(b) and for the child in other personal matters under <section> 30. In addition, while the parent with whom the child resides has the authority under <section> 35b to determine where the child will live within Norway, section 43 of the Children Act grants a parent with joint parental responsibility, here Furnes, decision-making authority over whether the child lives outside Norway. Section 43 provides that both parents must consent to the child moving abroad. Plaintiff Furnes's joint parental responsibility effectively gave him the right, generally referred to as a "ne exeat " right, to determine whether Jessica can live outside of Norway with her mother.

In May of 2001, Defendant Reeves proposed that Jessica stay with Furnes for a longer period than scheduled in May 2001 and in the fall of 2001 in exchange for Furnes's consent to Jessica spending the entire summer in the United States with Reeves. Reeves wanted to take Jessica to spend the summer of 2001 with her family. Furnes agreed, with the clear expectation that Jessica would return to start school in Norway in the Fall of 2001. According to Furnes, Defendant Reeves neither returned nor contacted him to inform him of her whereabouts. When Reeves failed to contact him at the end of the summer 2001, he began ceaseless efforts to locate Defendant Reeves and Jessica. On November 4, 2002, Plaintiff Furnes filed a Petition for Return of Child to Petitioner under ICARA. After an evidentiary hearing, the district court concluded that Defendant Reeves's removal of Jessica from Norway violated Plaintiff Furnes's rights to his daughter under Norwegian law. The district court further found (1) that Plaintiff Furnes was a credible witness, (2) that Furnes had not acquiesced in Defendant Reeves's removal of Jessica from Norway, (3) that Furnes had been unable to locate Reeves and Jessica for many months after the removal, and (4) that his ICARA petition had been timely filed within one year of removal, in accordance with the Hague Convention. The district court, however, concluded that Plaintiff Furnes was exercising mere access rights coupled with a ne exeat right under Norwegian law--not custody rights--over Jessica at the time of removal. On that basis, the district court decided that it was not authorized to order the return of the  child pursuant to the Convention and ICARA, and denied the petition.

The 11^th Circuit held that Furnes's rights to his daughter under Norwegian law were the type of rights that entitled him to the return of his child under the express terms of the Hague Convention. Article 12 of the Hague Convention establishes the general rule that a child who has been "wrongfully removed or retained" within the meaning of the Convention shall be returned unless more than a year has elapsed between the removal and the date of commencement of the proceedings and the child has become settled. Article 3 of the Hague Convention outlines the conduct that is "wrongful" for purposes of Article 12. Pursuant to Article 3, the removal or retention of a child is wrongful if it violates the "rights of custody" of another person, either jointly or alone, and those "rights of custody" were actually being exercised at the time of the removal or retention or would have been exercised absent the removal or retention. The Hague Convention does not include an exhaustive list of rights that constitute "rights of custody." However, Article 5 distinguishes between "rights of custody" and "rights of access" as follows: a) "rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence; b) "rights of access" shall include the right to take a child for a limited period of time to a place other than the child's habitual residence. "The rights of custody ... may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State."

Article 13 of the Convention sets forth certain narrow exceptions to Article 12's mandatory-return rule. Under Article 13, a court is not bound to order the child's return if the person opposing the return establishes that "the person, institution or other body having the care of the person of the  child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention...."

The court held that A rights of custody" included "rights relating to the care of the person of the child," and in particular, "the right to determine the child's place of residence." Furnes's ne exeat right under <section> 43 of the Norwegian Children Act granted Furnes the substantive right (albeit a joint right) to determine whether the child lives within or outside Norway, and thus the right to determine jointly with Reeves the child's place of residence. This ne exeat right in <section> 43, especially in the context of Furnes's retained rights under <section> 30, constitutes a "right of custody" as defined in the Convention.

Plaintiff Furnes had the right to decide whether or not Jessica can move outside Norway with her mother, and thereby had the joint right to decide whether Jessica's place of residence will be outside or within Norway.

The Convention does not explicitly define the term "place of residence." In light of the context of the Hague Convention, the Court believed that the right to determine whether the child lives within or outside Norway constitutes a right to determine the child's place of residence. The Hague Convention was designed to provide a remedy not for whether Jessica should live in Bergen or Oslo within Norway (Reeves's right), but for whether Reeves should be able to take Jessica across international borders. Thus, the only logical construction of the term "place of residence" in the Convention would necessarily encompass decisions regarding whether Jessica may live outside of Norway. Therefore, what country a child lives in, as opposed to what city or house within Norway, constitutes a right to determine a child's place of residence under Article 5 of the Convention and thus a right of custody under  the Convention. The ne exeat right under Norwegian law is a right of custody under the Convention. The right to determine the place of the child's residence is just one example of a custody right under the Hague Convention. More generally, rights of custody include rights "relating to the care of the person of the  child." Convention, Art. 5. The ne exeat right under Norwegian law establishes a right, no matter how minimally or expansively that right is defined, to affect the child's place of residence. As the Convention's definition of "rights of custody" implicitly acknowledges, the determination of the child's place of residence is a crucial aspect of the child's care.

Thus, even assuming arguendo that Plaintiff Furnes did not have the right to determine Jessica's place of residence, he had at the very least a veto right relating to the determination of her place of residence--that is, a right "relating to the care of the person" of Jessica. As such, the ne exeat right in <section> 43 provided Furnes with a right of custody over Jessica as defined by the Hague Convention.

The court noted that its conclusion diverged from those of the Second, Fourth, and Ninth Circuits. (Citing Croll v. Croll, 229 F.3d 133 (2d Cir.2000); Fawcett v. McRoberts, 326 F.3d 491, 500 (4th Cir.2003), cert. denied --- U.S. ----, 124 S.Ct. 805, 157 L.Ed.2d 732 (2003); Gonzalez v. Gutierrez, 311 F.3d 942, 954 (9th Cir.2002).

In noted that in Croll, Mrs. Croll removed her daughter Christina from Hong Kong to the United States in violation of her custody agreement with Mr. Croll. Mr. Croll filed an ICARA petition seeking Christina's return to Hong Kong. Under their agreement, Mrs. Croll maintained sole "custody, care, and control" of Christina, and Mr. Croll had a right of "reasonable access." The agreement also provided that Christina "not be removed from Hong Kong until she attains the age of 18 years" without leave of court or consent of the other parent. The district court concluded that this ne exeat clause created rights of custody under the Convention and granted Mr. Croll's petition. In reversing, the Croll majority relied on three main conclusions: (1) that Mr. Croll's ne exeat right was not a right to determine the child's place of residence, but only a limitation on Mrs. Croll's right to determine the child's place of residence; (2) that his ne exeat right could not be exercised absent removal; and (3) that the history and drafters' intent of the Hague Convention supported the view that a ne exeat right was not custodial. The Eleventh Circuit distinguished this case from Croll because, it involved Norwegian law and was different from Croll because Plaintiff Furnes's ne exeat right must be considered in the context of his additional decision-making rights by virtue of his joint A parental responsibility" under Norwegian law. In reaching its view that the ne exeat right was only a limitation, the Croll majority relied in part on how the particular agreement in Croll gave Mrs. Croll the sole "custody, care, and control" of the child, and thus the sole right to determine Christina's place of residence within Hong Kong. . However, the Convention specifically provides that a custody right may be exercised either jointly or alone. It was clear that Plaintiff Furnes did not have the right to determine alone the place of Jessica's residence. However, neither did Defendant Reeves. Rather, Furnes and Reeves each possessed elements of that place-of-residence right, which they exercised jointly. This fact was unchanged by the Croll majority's naked characterization of a ne exeat right as a "limitation" on the right of the sole custodial parent rather than an independent right of the otherwise non-custodial parent. The more natural characterization, however, was that Defendant Reeves and Plaintiff Furnes shared a divided right to determine Jessica's place of residence, and that each of their rights served as a limitation on the other's. They possessed a joint right to determine Jessica's place of residence. The Court concluded that Plaintiff had shown that his rights were "actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention," and that hewas exercising his rights of joint parental responsibility in Norway prior to Jessica's removal to the United States. Plaintiff Furnes would have exercised his custody rights under the ne exeat clause in <section> 43 but for Jessica's removal. Under Norwegian law, Defendant Reeves was bound to seek Plaintiff Furnes's consent prior to relocating outside Norway with Jessica. Had Reeves complied with that obligation, Furnes would have exercised his right by either consenting to the relocation (with or without conditions) or withholding consent. Accordingly, it concluded that Furnes would have exercised his rights under the ne exeat clause but for the removal, as required by Article 3(b) of the Convention.

The court rejected Reeves assertion that Plaintiff Furnes's petition was not timely filed because it was filed more than a year following Jessica's removal from Norway.

Under Article 12 of the Convention, a court is required to order return of a child who has been wrongfully removed unless the respondent shows that the petition for return of the child was filed more than one year from the date of the wrongful removal or retention. Plaintiff Furnes filed his petition more than one year after Jessica's removal. Reeves moved to the United States with Jessica in the summer of 2001, and Furnes did not file the petition until November of 2002. However, the district court concluded that the limitation period was equitably tolled until Plaintiff Furnes located Jessica, and determined that the petition was filed within one year of Furnes's locating Jessica. It agreed with the district court that equitable tolling may apply to ICARA  petitions for the return of a child where the parent removing the child has secreted the child from the parent seeking return, and concluded that the one-year period of limitations began from the date that Plaintiff Furnes confirmed Jessica's location in the United States, in March 2002 at the earliest.