Yang underwent surgery on October 24, 2002 and a friend of Yang took care of Raeann until Tsui arrived in Canada on October 26, 2002. Tsui and Raeann returned to Pittsburgh the next day, October 27, 2002 and Tsui left $1,000 cash with Yang. This was the first time Raeann had seen her father since August of 1997. Yang was discharged from the hospital on November 2, 2002. Although she initially spoke to Raeann daily, this changed after Tsui's wife, Chen, complained that Yang's daily calls were burdensome to their family. Consequently, Tsui allowed Yang to speak to Raeann only every other night. Yang claims that Raeann asked to return to Canada at this time and Yang was worried that Raeann was homesick and unhappy. Yang told Tsui to return Raeann to Canada, and threatened legal action if he refused. In fact, Yang offered to travel to Pittsburgh to retrieve her daughter. Although Yang intended to travel to Pittsburgh to retrieve Raeann, on November 20, 2002, she returned to the hospital .After a week in the Intensive Care Unit, Yang was transferred to the "step-down" ward, where she stayed for two days before being transferred to the General Neurology ward, where she remained until December 28, 2002. while Yang remained in the hospital, on December 17, 2002, a cover letter and "Complaint for Custody, Order for Generations Education/Mediation Seminar" arrived at Hsu's house. Tsui filed the Complaint in Pennsylvania state court on December 11, 2002 and received a Court Order granting him custody on February 6, 2003. After she was released from the hospital on December 28, 2003, Yang then underwent twenty sessions of radiation therapy. Neither Yang nor her attorneys ever contacted the Pennsylvania courts directly or appeared at the proceeding. Yang then hired Canadian attorney Sandilands who demanded that Raeann be returned to Yang immediately. He initiated custody proceedings in Canada, where from the end of January to March 11, 2003 there were five custody proceedings. Yang attended all but the first session. Tsui was represented by Canadian counsel for all of the hearings except for the first, but did not appear himself. The Supreme Court of British Columbia granted interim custody to Yang on March 25, 2003. In May 2003 the attorney filed an application with the Canadian Attorney General's office to have Raeann returned under the Hague Convention. Subsequently, there was a Petition for Return of Child filed in this Court on October 23, 2003. The Court found as a matter of fact that Yang demanded that Tsui return Raeann sometime before her readmittance to the hospital on November 20, 2002. Therefore, November 20, 2002 was the date of retention in this case. Relying on Karkkainen v. Kovalchuk, 445 F.3d 280 (3d Cir.2006) the court noted that the Third Circuit recently held: a petitioner cannot claim that the removal or retention of a child is 'wrongful' under the Hague Convention unless the child to whom the petition relates is 'habitually resident' in a State signatory to the Convention and has been removed to or retained in a different State. Determination of a child's habitual residence immediately before the alleged wrongful removal or retention is therefore a threshold question in deciding a case under the Hague Convention. The determination of habitual residence "is not formulaic; rather, it is a fact-intensive determination that necessarily varies with the circumstances of each case." Whiting v. Krassner, 391 F.3d 540, 546 (3d Cir.2004). The Third Circuit Court has "defined a child's habitual residence as the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a 'degree of settled purpose' from the child's perspective. The inquiry must focus on the child and consists of an analysis of the child's circumstances in that place and the parents' present, shared intentions regarding their child's presence there." Baxter v Baxter, 423 F.3d at 363 (3d Cir.,2005). In Karkkainen, the Court of Appeals explained that "if a child becomes rooted in one country, we will not return her to another one where doing so would take her out of the family and social environment in which her life has developed. Simply put, this inquiry considers whether a child has made a country her home before the date of her removal or retention." Karkkainen, 445 F.3d at 292. However, "when a child is too young to have an intent regarding her habitual residence, the touchstone inquiry is shared parental intent." In re Application of Adan, 437 F.3d at 392. On November 20, 2002--the date of retention--Raeann was only five years old and the Court found as a matter of law that a five year-old child is too young to have an intent regarding her habitual residence. Thus, the "touchstone inquiry" in this case was whether Yang and Tsui shared an intent immediately prior to November 20, 2002 to make Pittsburgh Raeann's home. The facts demonstrated that they did not.

Both parties fundamentally agreed that at the time Raeann left Canada to come to the United States they intended for her to live with her father until her mother recovered from surgery. While this was Yang's expectation, the parties also discussed what to do in the event that Yang would die from the surgery. They agreed that, in that case, Raeann should continue to live with Tsui. The evidence demonstrated that the original intent of the parties was for Raeann to stay approximately two to three months and that soon after Raeann came to the United States, Tsui decided to assert unilateral custody over Raeann. It was clear from the testimony of both parties that they intended for Raeann to stay with her father until Yang recovered, a period which they anticipated would last two to three months. At the time of retention, Raeann was less than a month into what was expected to be a two to three month stay. In the words of the Third Circuit in Karkkainen, she could not have become "firmly rooted in her new surroundings" nor was Pittsburgh at that time the "family and social environment in which her life has developed." 445 F.3d at 292. Even more important, the shared intent of the parents was not for Raeann to make Pittsburgh her home, unless Yang passed away. Accordingly, the Court found that Canada was Raeann's habitual residence on November 20, 2002. At the hearing, both parties called expert witnesses to educate the Court on the custody law of British Columbia. The experts agreed that the operative statute is Canada's Family Relations Act, which states in pertinent part: (1) Subject to subsection (2), the persons who may exercise custody over a child are as follows: (a) if the father and mother live together, the father and mother jointly; (b) if the father and mother live separate and apart, the parent with whom the child usually resides; (c) if custody rights exist under a court order, the person who has those rights; (d) if custody rights exist under a written agreement, the person to whom those rights are given. (2) If persons have conflicting claims to custody under subsection (1), the following persons may exercise custody to the exclusion of the other persons unless a court otherwise orders: (a) the person who has custody rights under a court order; (b) if paragraph (a) does not apply, the person granted custody by an agreement; (c) if paragraphs (a) and (b) do not apply, the person claiming custody with whom the child usually resides; (d) if paragraph (c) applies and 2 persons are equally entitled under it, the person who usually has day to day personal care of the child. R.S.B.C.1996, c. 128, s. 34. In this case, on November 20, 2002, the father and mother lived separate and apart, and there was neither a court order nor a written agreement. Thus, section 34(1)(b) applied and custody belonged to the parent with whom the child usually resided.

At the time of retention, Raeann had been living with her father for less than a month. Other than the time immediately following her birth in 1996, she had lived exclusively with her mother in Taiwan and, subsequently, in Canada. It was clear to the Court that Raeann usually resided with her mother, not her father. Therefore, Yang had custody of Raeann under Canadian law. The Court determined that Yang had custody rights immediately before the retention, the Court next must examine whether she was exercising those rights. "Once it is determined that a party had valid custody rights under the country of origin's laws, very little is required of the applicant in support of the allegation that custody rights have actually been or would have been exercised." In re Application of Adan, 437 F.3d at 391. "If a person has valid custody rights to a child under the law of the country of the child's habitual residence, that person cannot fail to 'exercise' those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child." Baxter, 423 F.3d at 370 citing Friedrich v. Friedrich, 78 F.3d 1060, 1065-66 (6th Cir.1996). Yang did nothing in this case that constituted clear and unequivocal abandonment of Raeann, and thus she was exercising her custody rights at the time of retention.

The Court found that Yang has satisfied her burden under the Hague Convention, having proved by a preponderance of the evidence that when Raeann was retained on November 20, 2002, Yang had, and was exercising, custody of Raeann and Canada was Raeann's country of habitual residence.

The Court noted that the unnumbered paragraph of Article 13 delineating the "wishes of the child exception" leaves its application wholly to the discretion of the district court. It states that the Court may refuse to order the return of the child, in contrast to the mandatory directive shall included in Article 12. Moreover, like the grave risk exception, the 'age and maturity' exception is to be applied narrowly." England v. England, 234 F.3d 268, 272 (5th Cir.2000). The court found that any objection that Raeann may have to returning to Canada was a direct result of Tsui's wrongful retention. The record was devoid of any evidence indicating that Raeann wished to move to Pittsburgh to live with her father prior to Yang's illness. Nor had Tsui demonstrated such a desire at the time the retention occurred. Any attachment that Raeann has made to her living conditions and family in Pittsburgh happened as a result of the passage of time during the instant litigation. To refuse to return children based upon their preferences developed while awaiting the disposition of wrongful removal and retention lawsuits would render the Convention essentially meaningless. Even worse, it would reward the malfeasant parents, allowing them the opportunity to seek to obviate their wrongful removal or retention during the pendency of legal disputes. In light of the foregoing, the Court would not invoke the discretionary exception to return contained in Article 13.

Even if this case presented a potentially appropriate instance in which to apply the wishes of the child exception, Tsui had the burden of proving its applicability. At the direction of the President, the State Department submitted a legal analysis of the Convention, codified at 51 FR 10494-01, which discussed the wishes of the child exception. "This discretionary aspect of Article 13 is especially important because of the potential for brainwashing of the child by the alleged abductor. A child's objection to being returned may be accorded little if any weight if the court believes that the child's preference is the product of the abductor parent's undue influence over the child." 51 FR 10494-01, Section III.I(2). Thus, the Court must be satisfied not only that Raeann has reached an age and degree of maturity at which it is appropriate to take into account her views, but also that her objections are grounded in her own mature opinion and are not merely the conduit for the opinions of others. Based on the evidence of record, Tsui failed to prove either fact by a preponderance of the evidence.