The District Court held that the child's habitual residence prior to the allegedly wrongful retention was Argentina; the father had rights of custody pursuant to Argentinian law at the time of the child's retention, and was exercising those rights; the mother's retention of the child only became wrongful when the father became aware of the mother's true intention not to return, for purposes of triggering the article requiring that the child be returned if less than one year had elapsed when proceedings were commenced; even if the time for seeking the return commenced earlier, the time for seeking the return should be equitably tolled until the father became aware of the mother's intent; and the child was not settled in new environment in the United States, and so should not be returned even if the petition were filed late and the time was not equitably tolled.

The Court granted the petition.

The child was born on October 5, 1994, in Buenos Aires, Argentina. Her father was the Petitioner, and her mother was the Respondent. The parties were married but were physically separated since December of 1996.

Moreover, at the time the child came to the United States, the Petitioner and the Respondent were no longer living together.

In October of 2001, the Petitioner signed an agreement that authorized the child to travel to the United States with her mother.

In January of 2002, the Respondent enrolled the child in Deerfield Beach lementary School. However, the child transferred from that school when the Respondent left her sister's apartment. The Petitioner testified that he could not locate the child when he called the Respondent's sister because he was told that she was no longer living there. He located the Respondent in March of 2002 and was told that the child was registered in school and was not returning to Argentina in March.

In June of 2002, the child contacted her father asking about her grandmother in Argentina. It was around that time that the Petitioner asserts that he was informed of the Hague Convention.

Petitioner testified that in January of 2003, the Respondent said that she would return with the child when classes let out in June. If he did not accept those terms, the Respondent would "get lost" with the child. The Petitioner testified that he agreed to wait until the child finished school in the United States.

Petitioner claimed that he did not pursue an action under the Hague Convention because the Respondent promised to return in June of 2003. However, in the middle of June, the Respondent affirmatively indicated that she would not return to Argentina and that the Petitioner would no longer be able to communicate with his daughter. Accordingly, the Petitioner initiated these proceedings.

The Court held that although "habitual residence" is not defined in the Convention, the text of the Convention directs courts to the point in time "immediately before the removal or retention." Hague Convention, art. Courts have defined habitual residence as "the place where [the child] 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." Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir. 1995). Any determination of habitual residence must focus on the child and "the parents' present, shared intentions regarding their child's presence there."

Courts have also noted that a young child does not usually have any "settled purpose" beyond the intentions of his or her parents. Because the Convention tries to prevent one parent from unilaterally determining the country in which the child will live, the habitual residence of the child cannot be shifted without mutual agreement. Id. Moreover, courts have generally refused to find that the changed intentions of one parent shifted the child's habitual residence.

It was undisputed that the child's habitual residence prior to visiting the United States was Argentina. The child was born and raised in Argentina, attended school in Argentina, and had a majority of her extended family in Argentina. Although the child had spent some time in the United States, the Court would not find that her habitual residence had been changed solely because of the unilateral actions of her mother. The child's father consented to her visiting the United States but did not consent to her residing here permanently. Therefore, there was no mutual shared intent for the child to remain in the United States. Further, considering the child's current immigration status and the fact that she had moved approximately five times in the mere two and one-half years spent here, it was difficult to find that the child has any settled purpose whatsoever.

The Court held that even if the period of wrongful retention began in March of 2002, the one-year period should be equitably tolled. The Eleventh Circuit has noted that unless Congress states otherwise, equitable tolling should be read into every federal statute of limitations. Ellis v. Gen. Motors Acceptance Corp., 160 F.3d 703, 706 (11th Cir.1998). Equitable tolling applies to ICARA petitions where the parent has secreted the child from the parent seeking return.