in late 1996. In March 1998, respondent moved to New Zealand with
Jordana. In May 1998, petitioner followed respondent to New Zealand
where they lived in the same house for one month. Respondent was
unable to find employment in New Zealand, and returned alone to Peru
in June 1998. In August 1998, petitioner moved to Peru with Jordana,
but petitioner and respondent did not live together. Petitioner and
respondent agreed to share custody of Jordana for alternating one-week
In August 1998, respondent received an employment offer from a
telecommunications company in New York. In December 1998, respondent and
Jordana, accompanied by respondent's mother, moved to New York.
Respondent began to work at the telecommunications company, but was
unable to enroll Jordana in a New York elementary school in the middle of
the school year. Jordana and her grandmother returned to Peru in February
1999, at the start of the new school semester in Peru. Jordana attended
school in Peru until August 1999, when she returned with respondent to
live in New York. Jordana then began attending a Catholic elementary
school in New York. In December 1999, respondent sent Jordana to Peru to
spend the Christmas holidays with her father. Jordana returned to New York
in January 2000 and resumed her schooling.
In late February 2000, respondent sent Jordana to Peru with the
understanding that Jordana would travel with petitioner to New Zealand
for an extended stay with petitioner's sister. Respondent asserts that
petitioner agreed to return Jordana to New York at the end of the New
Zealand school term in July 2000. Jordana and petitioner traveled to New
Zealand in late March or early April 2000, where they stayed with
petitioner's sister. In July 2000, respondent requested that petitioner
return Jordana to New York in accordance with their agreement. Petitioner
refused, and continued to keep Jordana in New Zealand until December
2000, despite repeated requests by respondent that petitioner return the
child to New York.
In December 2000, Jordana returned to New York with respondent.
Petitioner alleges that he agreed to allow the child to travel to New
York only for the holiday period, and that he arrived in New York in
January of 2001 with the intention of returning to New Zealand with
Jordana. Respondent asserts that petitioner agreed to Jordana's permanent
settlement in New York.
Respondent also asserts that she gave petitioner $1,000, and helped him
to obtain a visa so that he could come to the United States to study and
be close to Jordana. In January 2001, petitioner flew from New Zealand to
the United States. It is undisputed that when he arrived in the United
States, respondent refused to allow him to take Jordana to New Zealand.
The Convention seeks to "secure the prompt return of children
wrongfully removed to or retained in any Contracting State." Convention,
art. 1.*fn1 To that end, ICARA, the implementing legislation for the
Convention, authorizes the filing of a petition for the return of a child
in a United States district court. See 42 U.S.C. § 11603(b). Under
the Convention, "a United States District Court has the authority to
determine the merits of an abduction claim, but not the merits of the
underlying custody claim." Friedrich v. Friedrich,
983 F.2d 1396, 1400
(6th Cir. 1993) (citing Convention, art. 19). This is because "a child's
country of habitual residence is best placed to decide upon questions of
custody and access." Croll v. Croll, 229 F.3d 133, 137 (2d Cir. 2000).
When a federal court receives a petition alleging wrongful retention in
violation of the Convention, the court must decide whether the petitioner
has proven by a preponderance of the credible evidence that the child was
"wrongfully removed or retained" within the meaning of the Convention.
See 42 U.S.C. § 11603(e)(1)(A). If a court determines that a
petitioner has met his burden, the Convention directs the court to "order
the return of the child." Convention, art. 12.
Article 3 of the Convention states that a child has been wrongfully removed
or retained when:
a) [the removal] is in breach of rights of custody
Sattributed to a person, an institution or any other
body, either jointly or alone, under the law of the
State in which the child was habitually resident
immediately before the removal or retention; and
b) at the time of removal or retention those rights
were actually exercised, either jointly or alone, or
would have been so exercised but for the removal or
Convention, art. 3. From the text of article 3, it is clear that
petitioner must therefore establish the following elements: 1) New Zealand
was the child's habitual residence "immediately before the . . .