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In Ly v. Heu, 296 F.Supp.2d 1009 (D. Minn. 2003)
the father, a resident of France, established that the child's mother
wrongfully removed the child from France by moving to the United States
after their divorce; the father and mother had joint legal custody of
the child under French law that applied to the parties' divorce. Legal
custody under French law included the right to determine the child's
place of residence, and the mother did not notify the father or seek
leave of a French court prior to bringing the child to the United States
even though the father exercised his custody rights by visiting the
child with reasonable frequency prior to the child's removal.
In determining whether the settled exception defense
applies the court is permitted to consider any relevant factor,
including the particular circumstances surrounding the child's living
environment; such factors include the age of the child, the stability of
the child's residence in the new environment, whether the child attends
school or day care consistently, whether the child attends church
regularly, the stability of the mother's employment or other means of
support, whether the child has friends and relatives in the area, and to
what extent the child has maintained any ties to the country of habitual
residence.
The mother established that the child was settled in a
new environment in the United States. The child lived continuously in
the same city since her removal and had only vague memories of France,
attended the same school regularly and was thriving in academic and
extra-curricular activities, developed a strong bond with the
step-father, step-siblings, and step-fathers' extended family, and had
no apparent ties to France other than the father's residence there.
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