In re Application of Giampaolo v. Erneta, 390 F.Supp.2d 1269 (N.D. Georgia, 2004), both parties agreed that the Child's habitual residence was Argentina. Therefore, the law of Argentina governed the Court's analysis regarding whether Petitioner had custody rights at the time of the Child's removal or retention from Argentina. The Hague Convention permits the Court to take judicial notice of Argentina's law.

The Court noted that the Hague Convention distinguished between "rights of custody" and "rights of access." "Rights of custody" include "rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." "Rights of access," on the other hand, include only "the right to take a child for a limited period of time to a place other than the child's habitual residence." The Hague Convention's remedy of return applies only when a petitioner possesses "rights of custody."

The Court found that Petitioner maintained and continued to maintain rights of custody over the Child pursuant to the Argentine legal concept of patria potestas. The Argentine Civil Code, provided the following. "Patria Potestas denotes the set of rights and duties belonging to the parents in respect to the person and property of their children, for their protection and integral education, from the moment of their conception and while under age and not emancipated." Argentine Civil Code, Art. 264. The Central Authority's letter that was received by the Court specifically states that the definition of patria potestas under the Argentine Civil Code "coincides with the definition of custody given by art 5 of the Convention " Thus, if Petitioner had patria potestas, the Court was of the opinion that he had "rights of custody" as conceived under the Hague Convention.

In the case of a child who was born out of wedlock and acknowledged by both parents, the exercise of patria potestas is given to both of them, "if there was co-habitation." Argentine Civil Code, Art. 264(5). In this case, the Child was born out of wedlock and that she was acknowledged by both parties. There was co-habitation. Petitioner and Respondent stipulated that they lived together for several years after the Child's birth. Therefore, under the Argentine Civil Code, both Petitioner and Respondent had the right to exercise patria potestas over the Child.

Pursuant to Argentina's internal law, the term "tenencia" means "physical custody of the minor" and is not equivalent to legal custody. Even though Respondent was granted "tenencia" under an Agreement, Petitioner still retained patria potestas or joint legal custody over the Child.

The Court found that the Child's removal breached Petitioner's rights to exercise patria potestas over the Child.

Petitioner was exercising his custody rights at the time of the Child's removal from Argentina to the United States. Courts in the Eleventh Circuit have found that "in the absence of a ruling from a court in the country of habitual residence, a court should liberally find 'exercise' where a parent keeps or seeks to keep any sort of regular contact with his or her child." In re Cabrera, 323 F.Supp.2d at 1312 (citing Mendez Lynch, 220 F.Supp.2d at 1359).

The Petition was filed over two (2) years after the Child left Argentina with Respondent. Respondent argued that the Petition was not timely, and the Child had become settled in her new environment. Petitioner urges the Court to equitably toll the one-year limitation period to account for Respondent's concealment of the exact location where she and the Child were living. The Court agreed with him, noting that the Eleventh Circuit has held that in cases where a child's location. The Court found that Petitioner timely filed the Petition within one (1) year of learning of the Child's location. Respondent had not proven by a preponderance of the evidence that the Child was settled in her new environment. In analyzing the evidence before the Court, the Court noted that it is permitted to consider any relevant factor surrounding the child's living arrangement. Such factors might include the following: (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, (6) whether the child has friends and relatives in the new area, (7) the involvement of the parents, and (8) the uncertain immigration status of the parent and her child.

The Court interviewed the child in Chambers and took into account of the Child's views that concluded that the Child's views were not determinative. The Child had been in the United States with Respondent exclusively for over two (2) years and did not want to return to Argentina. The Child only recently saw Petitioner on August 11, 2004, when Petitioner came to the United States for the evidentiary hearing. The Child was now accustomed to the United States and had been influenced by Respondent's preference for her to remain here. The Child appeared to have internalized Respondent's views about the possibility of being returned to Argentina and being around Petitioner. Thus, to the extent that Respondent had been successful in proving this exception, the Court nevertheless exercised its discretion to order return of the Child in furtherance of the aims of the Hague Convention.