The details surrounding events on July 9, 1992, were by no means clear to the court. Both parties agree Dean came over to Britta's apartment to visit Vallery. Britta testified she discovered Vallery's passport was missing and became suspicious. While Britta was on the phone, Dean took Vallery from the apartment without Britta's permission. Dean testified that he had seen Vallery only about four days out of the ten he had been in Germany, because Britta restricted his access to the child. He further testified he took Vallery because Britta told him he could never see the child again.

Within four hours of Dean taking Vallery, Britta obtained a German court order awarding her the right to determine Vallery's residency. Dean called later that evening from a friend's house in Germany and Britta told Dean of the court order. Dean stated he believed it was a restraining order. In any event, Dean knew of the existence of a German court order before he left Germany with Vallery. He testified he called the military legal department, which told him the order was of no effect if he had not been served with a copy. The order had been entered ex parte and Dean was not served.

Dean returned to the United States with Vallery and called Britta once he had arrived. He subsequently began divorce proceedings and obtained a temporary custody order from Geary County District Court. In September 1992, Britta filed her answer, through counsel, seeking custody of Vallery. On September 22, 1992, Britta signed a Marriage Settlement Agreement giving residential custody of Vallery to Dean. Dean did not sign that agreement until February 23, 1993, the day before the hearing on this case. On November 18, 1992, however, Britta, again through her attorney, revoked and rescinded the Marriage Settlement Agreement she had previously signed, and reiterated she intended to fight for custody of Vallery. The parties concur that the agreement is of no legal effect regarding custody, but Dean asserted that it goes to Britta's intent regarding custody after he had removed the child from Germany. Britta testified that the only reason she signed the agreement was that Dean threatened to have her boyfriend, a U.S. Army soldier, court martialed for adultery.

The Court noted that one of the most thorough cases analyzing the term "habitual residence" is In Re Bates, No. CA 122/89, High Court of Justice, Family Div'n Ct., Royal Court of Justice, United Kingdom (1989). As noted by the Bates court, no Hague Convention has ever defined "habitual residence," although the term is frequently used in such conventions. The intent is for the concept to remain fluid and fact based, without becoming rigid. The court quotes R. v. Barnet London Borough Council ex parte Shah [1983] 2 A.C. 309, 314 as follows: '... and there must be a degree of settled purpose. The purpose may be one or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose. That is not to say that the propositus 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.' The Bates court went on to state: I am satisfied that the arrangements that had been agreed, however acrimoniously, before the abduction date between the two parents for Tatjana's [the child] care, accommodation and therapy treatment in New York during the period of three months or so that would be due to elapse before the father's return to London amounted to a purpose with a sufficient degree of continuity to enable it properly to be described as settled.

This reasoning was persuasive to the court in determining that Germany was the habitual residence of the child. Assuming for the sake of this petition that Dean was misled on June 20, 1992, and believed Britta was going to return to the United States after a short time, both parents agreed that Britta would return to Germany for some period of time with Vallery. The amount of time was left open and Dean agreed Vallery should go with Britta. These arrangements had been agreed to and "amounted to a purpose with a sufficient degree of continuity to enable it properly to be described as settled." The court found credible Britta's testimony that in April 1992 she was returning to Germany to live and only returned in May to retrieve some belongings. Britta's actions were more consistent with her testimony than were Dean's actions with his testimony. When Britta and Vallery returned to Germany in April, then finally in June 1992, there was an intent to remain, at least for a period of time which was indefinite. This was by mutual agreement. Britta was caring for Vallery as a parent cares for a child, and, under German law, both parents are obliged and entitled to take care of the minor child. BGB ' 1626 (German Civil Code). The court found that Britta was exercising her rights of custody as contemplated by Article 3 of the Convention and Dean's removal was wrongful. The court held that Britta did not acquiesce in Dean's retention of Vallery in the United States. Although Britta did sign the Marriage Settlement Agreement on September 22, 1992, purportedly giving Dean residential custody, she revoked and rescinded the agreement within two months, long before Dean signed the agreement. Britta obtained a German order within four hours of Dean wrongfully removing Vallery, which gave Britta the right to determine residential custody of the child. She filed her answer in the Geary County divorce action seeking custody of Vallery. Further, she came in and vigorously prosecuted this action under the Convention. The court found that Britta has expressed her intent in a number of different ways that are contrary to a finding of acquiescence.