In Application of Adan, 437 F.3d 381 (3^rd Cir. 2006) Elena Esther Avans appealed from an order of the District Court granting Ariel Adan's application for return of his daughter Arianna to Argentina. The 3^rd Circuit vacated the District Court's order and remanded for further proceedings consistent with its opinion.

The Court noted that the determination of habitual residence "is not formulaic; rather, it is a fact-intensive determination that necessarily varies with the circumstances of each case." Citing Whiting v. Krassner, 391 F.3d 540, 546 (3d Cir.2004). When a child is too young to have an intent regarding her habitual residence, the touchstone inquiry is "shared parental intent." As we explained in Feder, "[a]ll that the law requires is that there is a settled purpose. That is not to say that the [person] intends to stay where he is indefinitely. Indeed his purpose while settled may be for a limited period. Education, business  or profession, employment, health, family or merely love of the place spring to mind as common reasons for a choice of regular abode, and there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled." 63 F.3d at 223 (quoting In re Bates, No. CA 122-89, slip op. at 10 (High Ct., Fam. Div.) (Eng.1989)).

The Court found that Adan proved by a preponderance of the evidence that Argentina is Arianna's country of habitual residence. Though she was born in the United States, Arianna moved to Argentina with her mother and father when she was three months old. With the exception of two brief visits to relatives in the United States in May 2001 and May 2003, Arianna lived in Argentina with her parents until her mother removed her to the United States in February 2004. Her parents are both from Argentina and her father is an Argentine citizen. Her parents were employed in Argentina, had homes in Argentina, and Arianna was in school in Argentina. Under these circumstances, Adan and Avans clearly had a "settled purpose" and "shared parental intent" to raise their daughter in Argentina, and that country was therefore her habitual residence.

The record did not reveal any court-approved agreement or adjudication of custody in Argentina; rather, it appeared the parties had an informal agreement between themselves, but the record was unclear on the terms of this agreement--aside from noting that it gave Avans "custody" and established a schedule for Adan to visit Arianna--and the parties had not provided it with the agreement in English. Moreover,  there was s no evidence whether the agreement was properly memorialized under Argentine law, or whether the parties' chaotic relationship caused the agreement to be reconsidered or repudiated. Adan conceded in his  testimony before the District Court that he did not consider the agreement binding because it "was not ratified in front of a judge," and that the agreement "didn't last long really." The parties had not cited, and the District Court did not mention, any provisions of Argentine law related to the creation, terms, or enforceability of such agreements, and we therefore have insufficient information to conclude whether the agreement had "legal effect under the law of [Argentina]," as required by Article 3 of the Convention.

As for other provisions of Argentine law, although the parties made passing--and, indeed, contradictory--references to a section of the Argentine code  during the District Court hearing, they had not provided any  citations to Argentine legal authorities and the District Court did not examine, rely on, or even mention Argentine law in determining whether Adan had lawful custody rights over Arianna at the time of her removal. Moreover, the court was been unable to locate relevant provisions of the Argentine code in English.

The Circuit Court held that District Court erred in finding that Adan satisfied his burden of proof as to his custody rights under Argentine law. In light of the District Court's failure to consider this issue, it vacated the District Court's June 7, 2005 order and remanded the case to that Court "with instructions to conduct further fact finding to determine: (1) what is the custody law of Argentina; (2) what are the terms of the parties' agreement regarding custody of Arianna; (3) whether that agreement is enforceable under Argentine law; and (4) under the agreement (or, if the agreement is not enforceable, Argentine family law), whether Adan had custody rights or mere rights of  access, and whether he was validly exercising those rights at the time Arianna was removed. If, as a result of this factfinding, the District Court concludes that Adan has satisfied his burden of proving that he had valid custody rights over Arianna under Argentine law at the time Arianna was removed, and was actually exercising those rights, the District Court must then: (1) make detailed, written findings of fact on all allegations of abuse and harm visited upon Avans and Arianna by Adan, and on the protective efficacy of the Argentine courts and police, evaluating the witnesses' complete testimony and all other evidence in the record; (2) consider the totality of circumstances related to the alleged child abuse, rather than simply considering and explaining away each allegation in isolation; and (3) if the Court decides that Avans has not satisfied her burden of proving a grave risk of harm and the inability of Argentine authorities to protect the child, carefully tailor an order designed to ameliorate, as much as possible, any risk to Arianna's well-being. "