The Court noted that the unique circumstances of each case must be considered when inquiring into a child's habitual residence. Holder v. Holder, 392 F.3d 1009, 1016 (9th Cir.2004); accord Ruiz, 392 F.3d at 1252 (adopting the court's analysis of habitual residence in Mozes v. Mozes, 239 F.3d 1067 (9th Cir.2001) as its own). To establish a habitual residence, there must be a settled intention to abandon the residence left behind and an actual change in geography for a period of time that is sufficient for acclimatization. The Court concluded that Smith had a settled intention to abandon Nigeria because she had no residence or car remaining there when she left for Belgium; she had an actual change in geography by traveling to Belgium; and the time she spent in Belgium, from October 2000 until March 2001, was a sufficient period of time for acclimatization for both Smith and Melissa. Thus, the Court concluded Smith had a shared parental intent to habitually reside in Belgium, and Belgium was Melissa's habitual residence at the time of her removal.

The court held that in the United States, generally both parents have equal rights of custody of their children prior to the issuance of a court order allocating rights between them. Additionally, a court's prior order initially setting forth a visitation schedule does not alter a presumption of joint custody. Moreover, in the absence of a custody decree at the time of removal, a foreign court's subsequent award of sole custody to the parent seeking the child's return suggests the seeking parent retains some custodial rights under the Hague Convention. In the pre-custody decree circumstances of the case at bar, Van Driessche's custody rights under Belgian law were established as a matter of Illinois law. The general rule is that Smith and Van Driessche have equal rights of custody prior to a decree adjudicating custody. The Belgian court initially issued a visitation schedule awarding Van Driessche access to Melissa one week out of two, but this order did not alter Van Driessche's custody rights. Thus, the Court found that Van Driessche had rights of custody under the Hague Convention and ICARA in this pre-custody-decree Hague Petition and that Smith's removal of Melissa from Belgium breached his custody rights. The Court concluded that Van Driessche was exercising his rights of custody at the time of Melissa's removal from Belgium.

The Court noted that under the "well-settled" defense Smith had to establish by a preponderance of the evidence, that Van Driessche filed his Hague Petition more than one year after Melissa's removal, and Melissa had become settled in her new environment in Houston. If the defense is established, a court is not obligated to return the child. If those two elements are established, the Court next considers whether the one-year limitation period should be equitably tolled. Equitable tolling would apply, even if Melissa was well-settled, in the event that Smith took significant, active steps to conceal Melissa from her father while Van Driessche was actively seeking Melissa's whereabouts. Furnes, 362 F.3d at 723-24; Lynch v. Lynch, 220 F.Supp.2d 1347, 1363 (M.D.Fla.2002). Melissa was removed from Belgium in March 2002, and Van Driessche filed his Hague Petition on June 5, 2006. Van Driessche did not timely file his Hague Petition seeking Melissa's return. Because more than four years elapsed between Melissa's removal from Belgium and the filing of the Hague Petition, Smith met the first element of this defense. In determining whether the child is well-settled, courts consider the following factors: (1) the age of the child; (2) the stability of the child's new residence; (3) whether the child attends school or daycare consistently; (4) whether the child attends church regularly; (5) the stability of the mother's employment; and (6) whether the child has friends and relatives in the area. In re Ahumada Cabrera v. Lozano, 323 F.Supp.2d 1303, 1314 (S.D.Fla.2004). Additionally, for the child to be well-settled, the court should consider more than whether he or she has a comfortable material existence, taking into consideration the child's living environment and any active measures taken to conceal a child. Lops, 140 F.3d at 946. Melissa was now six years old and had been continually residing in Houston for two-thirds of her life. She lived with her mother and her aunt at one location for more than two years, lived in another location for a short time, and moved to a third location as her mother had become more independent and able to live on her own with Melissa. Van Driessche conceded that Melissa is well-settled in Houston.

The court pointed out that even if the Hague Petition was filed more than one year after the child was removed and the child is well-settled, the court should determine whether equitable justifications exist for tolling the one-year limitation period. Furnes, 362 F.3d at 723-24; Belay v. Getachew, 272 F.Supp.2d 553, 562 (D.Md.2003); Lynch, 220 F.Supp.2d at 1363. The purpose of equitable tolling is to ensure that a parent who takes intentional and significant steps to conceal his or her children for more than one year will not be rewarded for that misconduct by creating eligibility for an affirmative defense not otherwise applicable. In those circumstances in which the abducting parent has concealed the child, the one-year limitation period has been tolled until the parent seeking the child has located him or her. In considering all the circumstances regarding the one year/well-settled defense, courts have also examined whether a parent who wrongfully removes a child will be prosecuted for concealment of the child. In order to be consistent with the purposes of the Convention, the Court found that some period of equitable tolling should apply because Smith did not reveal her location in Houston to Van Driessche, which could have precluded him from filing his Hague Petition. The Court considered equitable tolling of Smith's defense in light of Van Driessche's overall conduct in seeking Melissa's return. The Court found Van Driessche had ample evidence that Smith would be found not only in the United States, but specifically in Houston, well before May 2006. Moreover, Van Driessche could have contacted the Belgian Central Authority to seek Melissa's return under the Hague Convention, regardless whether he had an exact address in the United States. However, it was not until July 2005, three years after Melissa's removal, that Van Driessche authorized the Belgian Central Authority to take action on his behalf. Based upon the foregoing facts and equitable considerations, the Court concluded that the limitations period should be tolled until August 2004, the date of the letter submitted by the Belgian government to the Southern District of Texas. Van Driessche, or the government on his behalf, could have concurrently filed a Hague Petition seeking Melissa's return based upon the same information contained in the August 2004 letter. The Court found the even if the limitations period tolled until April 2005, Van Dreissche's Hague Petition was untimely filed, and Smith was not precluded from asserting her defense.