1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-8-1995

Feder v Evans-Feder

Precedential or Non-Precedential:

Docket 94-2176

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Recommended Citation

"Feder v Evans-Feder" (1995). 1995 Decisions. Paper 211.

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1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

___________ 

No. 94-2176 

___________ 

 EDWARD M. FEDER, 

 Appellant

 vs. 

 MELISSA ANN EVANS-FEDER 

___________ 

Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. Civ. No. 94-cv-05909) 

___________ 

 

Argued 

June 27, 1995 

Before: MANSMANN, GREENBERG and SAROKIN, Circuit Judges. 

(Filed August 8, 1995) 

___________ 

Ann G. Verber, Esquire (ARGUED) 

Obermayer, Rebmann, Maxwell & Hippel 

15th & Chestnut Streets 

Packard Building, 14th Floor 

Philadelphia, Pennsylvania 19102 

 COUNSEL FOR APPELLANT 

Norman Perlberger, Esquire (ARGUED) 

Perlberger Law Associates 

401 City Avenue 

One Bala Plaza, Suite 200 

Bala Cynwyd, Pennsylvania 19004 

 COUNSEL FOR APPELLEE 

___________ 

OPINION OF THE COURT 

__________ 
2 

MANSMANN, Circuit Judge. 

 In this case of first impression for this circuit, we 

have before us a petition filed by one parent against the other 

under the Hague Convention on the Civil Aspects of International 

Child Abduction. Edward M. Feder asserts that Melissa Ann EvansFeder "wrongfully retained" their son, Charles Evan Feder 

("Evan"), in the United States and requests that Evan be returned 

to him in Australia. Concluding that the United States was 

Evan's "habitual residence", Hague Convention, Article 3a, the 

district court held that the retention was not wrongful and 

denied Mr. Feder's petition. 

 We, however, conclude that Australia was Evan's 

habitual residence and hold that Mrs. Feder's0 retention of Evan 

was wrongful within the meaning of the Convention. We will 

therefore vacate the district court's denial of Mr. Feder's 

petition and remand the case for a determination as to whether 

the exception that Mrs. Feder raises to the Convention's general 

rule of return applies to preclude the relief Mr. Feder seeks. 

I. 

 We begin by reviewing the evidence presented in this 

case. The facts as found by the district court leading to Mrs. 

Feder's retention of Evan are not in dispute. 

 

0 Although the caption reads "Evans-Feder", Melissa Ann 

Evans-Feder refers to herself in her brief as "Mrs. Feder" and we 

adopt that designation. 
3 

 Mr. and Mrs. Feder are American citizens who met in 

1987 in Germany where each was working: she as an opera singer, 

and he as an employee of Citibank. Evan, their only child, was 

born in Germany on July 3, 1990. 

 In October, 1990, the family moved to Jenkintown, 

Pennsylvania because Mr. Feder had accepted a management position 

with CIGNA in Philadelphia. When CIGNA terminated Mr. Feder's 

employment in June of 1993, he began exploring other employment 

opportunities, including a position with the Commonwealth Bank of 

Australia. Although Mr. Feder greeted the possibility of living 

and working in Australia with enthusiasm, Mrs. Feder approached 

it with considerable hesitation. Nonetheless, that August, the 

Feders traveled to Australia to evaluate the opportunity, and 

while there, toured Sydney, the city where Mr. Feder would work 

if he were to accept the position with Commonwealth Bank. They 

spoke with Americans who had moved to Australia, consulted an 

accountant about the financial implications of living in 

Australia and met with a relocation consultant and real estate 

agents regarding housing and schools. Mrs. Feder also spoke with 

a representative of the Australia Opera about possible employment 

for herself. 

 In late August or early September of 1993, the 

Commonwealth Bank offered Mr. Feder the position of General 

Manager of its Personal Banking Department. Finding the offer 

satisfactory from a professional and financial standpoint, Mr. 

Feder was prepared to accept it. Mrs. Feder, on the other hand, 

was reluctant to move to Australia. She had deep misgivings 
4 

about the couple's deteriorating marital relationship; in 

October, 1993, she consulted with a domestic relations attorney 

regarding her options, including a divorce. Nevertheless, for 

both emotional and pragmatic reasons, Mrs. Feder decided in favor 

of keeping the family together and agreed to go to Australia, 

intending to work toward salvaging her marriage. 

 Upon Mr. Feder's acceptance of the bank's offer, the 

Feders listed their Jenkintown house for sale and sold numerous 

household items that would not be of use in Australia. Toward 

the end of October, 1993, Mr. Feder went to Australia to begin 

work. Mrs. Feder remained behind with Evan to oversee the sale 

of their house in Jenkintown; Mr. Feder, in the meantime, looked 

for a house to buy in the Sydney area, sending pictures and video 

tapes of houses to Mrs. Feder for her consideration. In November 

of 1993, Mr. Feder purchased, in both his and Mrs. Feder's name, 

a 50% interest in a house in St. Ives, New South Wales, as a 

"surprise birthday present" for his wife.0 

 Mr. Feder returned to Pennsylvania on December 13, 

1993. Even though the Jenkintown house had not sold, Mr. Feder 

arranged for a moving company to ship the family's furniture to 

Australia and bought airline tickets to Australia for Mrs. Feder 

and Evan. The Feders left for Australia on January 3, 1994, 

where they arrived on January 8, 1994, after stopping briefly in 

California and Hawaii. Mrs. Feder was ambivalent about the move; 

 

0 The Commonwealth Bank purchased the remaining 50% 

interest and financed the Feder's interest in the house. 
5 

while she hoped her marriage would be saved, she was not 

committed to remaining in Australia. 

 Once in Australia, the Feders finalized the purchase of 

their St. Ives house, but lived in a hotel and apartment for 

about four and one-half months while Mrs. Feder supervised 

extensive renovations to the house. Evan attended nursery school 

three days a week and was enrolled to begin kindergarten in 

February, 1995. Mrs. Feder applied to have Evan admitted to a 

private school when he reached the fifth grade, some seven years 

later. Although Evan is not an Australian citizen and was not a 

permanent resident at the time, Mrs. Feder represented to the 

contrary on the school application. 

 In an effort to acclimate herself to Australia, Mrs. 

Feder pursued the contacts she had made during the Feders' 

August, 1993 trip and auditioned for the Australian Opera 

Company. She accepted a role in one of the company's 

performances set for February, 1995, which was scheduled to begin 

rehearsals in December, 1994. 

 Mr. Feder changed his driver's license registration 

from Pennsylvania to Australia before legally obligated to do so 

and completed the paperwork necessary to obtain permanent 

residency for the entire family; Mrs. Feder did not surrender her 

Pennsylvania license nor submit to the physical examination or 

sign the papers required of those seeking permanent residency 

status. All of the Feders obtained Australian Medicare cards, 

giving them access to Australia's health care system. 
6 

 According to Mrs. Feder, her marriage worsened in 

Australia. In the early spring of 1994, she and Mr. Feder 

discussed her unhappiness in the marriage as well as her desire 

to return to the United States. Mr. Feder attributed the 

couple's difficulties to the stress of his new job and requested 

that Mrs. Feder stay in Australia, anticipating that their 

problems would subside once the family moved into their new home. 

Once again, for both personal and practical reasons, Mrs. Feder 

agreed. 

 The family moved into the St. Ives home in May, 1994; 

the Feders' relationship, however, did not improve. Ultimately, 

Mrs. Feder decided to leave her husband and return to the United 

States with Evan. Believing that Mr. Feder would not consent to 

her plans if her true intent were known, Mrs. Feder told Mr. 

Feder that she wanted to take Evan on a visit to her parents in 

Waynesboro, Pennsylvania in July. Mr. Feder made arrangements 

for the trip, buying two round-trip tickets for departure to the 

United States on June 29 and returning to Australia on August 2. 

 Mrs. Feder and Evan left Australia as scheduled and 

upon their arrival in the United States stayed with her parents. 

In July, 1994, Mr. Feder traveled to the United States on 

business, and arranged to meet his wife and son at their still 

unsold house in Jenkintown. When Mr. Feder went to the house on 

July 20, 1994, he was served with a complaint that Mrs. Feder had 

filed in the Court of Common Pleas of Montgomery County, 

Pennsylvania on July 14, 1994, seeking a divorce, property 

distribution, custody of Evan and financial support. Shortly 
7 

thereafter, Mr. Feder returned to Australia and Mrs. Feder and 

Evan moved into the Jenkintown house. 

 In September, 1994, Mr. Feder commenced a proceeding in 

the Family Court of Australia in Sydney, applying for, inter

alia, declarations under the Hague Convention on the Civil 

Aspects of International Child Abduction. On October 4, 1994, 

the Judicial Registrar of the Family Court of Australia heard 

argument and issued an opinion declaring that Evan, Mr. Feder and 

Mrs. Feder were habitual residents of Australia immediately prior 

to Mrs. Feder's retention of Evan in the United States; that Mr. 

Feder had joint rights of custody of Evan under Australian law 

and was exercising those rights at the time of Evan's retention; 

and that Mrs. Feder's retention of Evan was wrongful within the 

meaning of the Convention.0 

 On September 28, 1994, Mr. Feder commenced this action 

against Mrs. Feder by filing a petition pursuant to the 

Convention in the United States District Court for the Eastern 

District of Pennsylvania, alleging that his parental custody 

rights had been violated by Mrs. Feder's "wrongful removal and/or 

 

0 Mrs. Feder was served with the Judicial Registrar's 

opinion on October 7, 1994. Mrs. Feder did not enter an 

appearance in the Australian court, although the record indicates 

that she received notice of the proceeding. In his brief, Mr. 

Feder informs us that the Australian action is pending and 

includes a request on his part for custody of Evan. 

 In the district court, Mr. Feder requested that "full 

faith and credit" be extended to the Judicial Registrar's 

declaration that Evan was a habitual resident of Australia. The 

court refused Mr. Feder's request. Feder v. Evans-Feder, 866 F. 

Supp. 860, 866 (E.D. Pa. 1994). This issue was not raised on 

appeal. 
8 

retention"0 of Evan and requesting the child's return. Mrs. 

Feder opposed the petition, denying that Evan's removal from 

Australia and retention in the United States were wrongful and 

asserting that even if they were, Evan cannot be returned to 

Australia because there is a "grave risk" that his return will 

expose him to "physical or psychological harm" or place him in an 

"intolerable situation." 

 On October 14, 1994, the district court conducted an 

evidentiary hearing and on October 31, 1994, issued an opinion 

and order denying Mr. Feder's petition. Feder v. Evans-Feder, 

866 F. Supp. 860 (E.D. Pa. 1994). Concluding that Mr. Feder 

failed to prove that "Evan's habitual residence in the United 

States as of January 8, 1994 had changed to Australia by the time 

Mrs. Feder refused to return him from Pennsylvania in the summer 

of 1994[,]" the court held that "the habitual residence of 

Charles Evan Feder is in the United States and that his mother 

has not wrongfully retained him here." Id. at 868. The court's 

holding was based on the view that although "Mr. Feder may have 

considered and even established Australia as his habitual 

residence by June of 1994 . . ., Mrs. Feder assuredly did not[,]" 

as "she never developed a settled purpose to remain [there]." Id. 

 

0 According to the Hague International Child Abduction 

Convention; Text and Legal Analysis found at Pub. Notice 957, 51 

Fed. Reg. 10494 (1986), "`wrongful removal' refers to the taking 

of a child from the person who was actually exercising custody of 

the child. `Wrongful retention' refers to the act of keeping the 

child without consent of the person who was actually exercising 

custody." Id. at 10503. Since Mr. Feder consented to Mrs. 

Feder's removing Evan from Australia to the United States, but 

did not consent to the child's being retained there, we view this 

case as involving an alleged "wrongful retention". 
9 

Because of its decision regarding Evan's habitual residence, the 

court did not reach the merits of Mrs. Feder's claim that Evan's 

return to Australia would place him at risk. Id. This appeal 

followed. 

II. 

 The Hague Convention on the Civil Aspects of 

International Child Abduction reflects a universal concern about 

the harm done to children by parental kidnapping and a strong 

desire among the Contracting States to implement an effective 

deterrent to such behavior. Hague Convention, Preamble; 42 

U.S.C. § 11601(a)(1)-(4). Both the United States and Australia 

are signatory nations. The United States Congress implemented 

the Convention in the International Child Abduction Remedies Act, 

42 U.S.C. § 11601 et seq., expressly recognizing its 

"international character" and the "need for uniform international 

interpretation" of its provisions. 42 U.S.C. § 11601(b)(2), 

(3)(B). In Australia, the Convention was implemented by the 

Family Law (Child Abduction Convention) Regulations made pursuant 

to s 111B of the Family Law Act 1975. 

 The Convention's approach to the phenomenon of 

international child abduction is straightforward. It is designed 

to restore the "factual" status quo which is unilaterally altered 

when a parent abducts a child and aims to protect the legal 

custody rights of the non-abducting parent.0 Pub. Notice 957, 51 

 

0 The Hague Convention on the Civil Aspects of 

International Child Abduction does not settle custody disputes, 
10 

Fed. Reg. 10494, 10505 (1986). Thus, the cornerstone of the 

Convention is the mandated return of the child to his or her 

circumstances prior to the abduction if one parent's removal of 

the child from or retention in a Contracting State has violated 

the custody rights of the other, and is, therefore, "wrongful". 

Hague Convention, Article 12.0 The general rule of return, 

however, has exceptions. If, for example, "there is a grave risk 

that [a child's] return would expose the child to physical or 

psychological harm or otherwise place the child in an intolerable 

situation[,]" return is not mandatory. Hague Convention, Article 

13b. 

 Under Article 3 of the Convention, the removal or 

retention of a child is "wrongful" where: 

a it is in breach of rights of custody 

attributed 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 retention. 

 

stating that "[a] decision under this Convention concerning the 

return of the child shall not be taken to be a determination on 

the merits of any custody issue." Hague Convention, Article 19. 

0 Article 12 provides that "[w]here a child has been 

wrongfully removed or retained in terms of Article 3 . . . the 

authority concerned shall order the return of the child 

forthwith." Hague Convention, Article 12. The Convention does 

not require that a child be returned to his or her habitual 

residence, although in the classic abduction case, this occurs. 

Where a prevailing party has moved from the child's habitual 

residence, the child is returned to that party, wherever he or 

she may be. Pub. Notice 957, 51 Fed. Reg. at 10511. 
11 

The rights of custody mentioned in subparagraph a above, may arise in particular by 

operation of law or by reason of a judicial 

or administrative decision, or by reason of 

an agreement having legal effect under the 

law of that State. 

Hague Convention, Article 3. 

 For purposes of the Convention, "`rights of custody' 

shall 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[.]" Hague Convention, Article 5a. The 

conflict of laws rules as well as the internal law of the child's 

habitual residence apply in determining a parent's custody 

rights. Elisa Perez-Vera, Explanatory Report by Elisa PerezVera, in 3 Actes et documents de la Quatorzieme session 426, 445-

46 (1982).0 If a child's habitual residence is a State which has 

more than one territorial unit, the custody rights laws of the 

territorial unit apply. Hague Convention, Article 31.0 

 Pursuant to the International Child Abduction Remedies 

Act, state and federal district courts have concurrent original 

jurisdiction of actions arising under the Convention. 42 U.S.C. 

§ 11603(a). Any person seeking the return of a child under the 

Convention may commence a civil action by filing a petition in a 

 

0 Elisa Perez-Vera was the official Hague Conference 

reporter. Her Explanatory Report is recognized as the official 

history and commentary on the Convention. Pub. Notice 957, 51 

Fed. Reg. at 10503. 

0 In the United States, the law in force in the state in 

which the child was habitually resident (as possibly preempted by 

the International Child Abduction Remedies Act, 42 U.S.C. § 11601 

et seq.) would apply to determine whether a removal or retention 

was wrongful. Pub. Notice 957, 51 Fed. Reg. at 10506. 
12 

court where the child is located. Id. § 11603(b). The 

petitioner bears the burden of showing by a preponderance of the 

evidence that the removal or retention was wrongful under Article 

3; the respondent must show by clear and convincing evidence that 

one of Article 13's exceptions apply. Id. § 11603(e)(1)(A), 

(2)(A). 

III. 

A. 

 The question of Evan's habitual residence immediately 

prior to the retention is the threshold issue we must first 

address.0 The Hague Convention on the Civil Aspects of 

International Child Abduction does not provide a definition for 

habitual residence; case law analyzing the term is now 

developing. We are not, however, without guidance; the Court of 

Appeals for the Sixth Circuit and the High Court of Justice of 

the United Kingdom have considered the meaning of "habitual 

residence" in a Hague Convention case. 

 In Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 

1993), a German father filed a petition for the return of his 

 

0 Unlike the dissent, we believe that the determination 

of habitual residence is not purely factual, but requires the 

application of a legal standard, which defines the concept of 

habitual residence, to historical and narrative facts. It is, 

therefore, a conclusion of law or at least a determination of a 

mixed question of law and fact. Universal Minerals, Inc. v. C.A. 

Hughes & Co., 669 F.2d 98, 102-03 (3d Cir. 1981). On such 

questions we employ a mixed standard of review, accepting the 

district court's historical or narrative facts unless they are 

clearly erroneous, but exercising plenary review of the court's 

choice of and interpretation of legal precepts and its 

application of those precepts to the facts. Id.
13 

son, Thomas, alleging that Thomas' mother, a citizen of the 

United States and a member of the United States Army stationed in 

Bad Aibling, Germany, had wrongfully removed the child from 

Germany, where the family lived, to Ironton, Ohio. A few days 

before Mrs. Friedrich left Germany with Thomas, Mr. Friedrich had 

forced his wife and child from the family's apartment and Mrs. 

Friedrich had assumed the role of Thomas' primary caretaker. 

Emphasizing her caretaking role and intentions to return 

eventually to the United States with Thomas, Mrs. Friedrich 

argued that Thomas' habitual residence had shifted from Germany 

to the United States. The court, however, held that Germany was 

Thomas' habitual residence. Focusing on the child, "look[ing] 

back in time, not forward[,]" and finding any future intentions 

that Mrs. Friedrich had harbored for Thomas to reside in the 

United States irrelevant to its inquiry, the court concluded that 

Thomas' habitual residence could be "`altered' only by a change 

in geography [which must occur before the questionable removal] 

and the passage of time, not by changes in parental affection and 

responsibility." Id. at 1401-02.0 

 In Re Bates, No. CA 122-89, High Court of Justice, 

Family Div'l Ct. Royal Courts of Justice, United Kingdom (1989), 

a mother petitioned the court under the Convention for the return 

 

0 Having determined that Germany was Thomas' habitual 

residence, the Court of Appeals remanded the case to the district 

court with instructions to determine whether any of Mr. 

Friedrich's actions had terminated his custody rights under 

German law and whether any of the exceptions to the Hague 

Convention on the Civil Aspects of International Child Abduction 

general rule of return applied. Friedrich v. Friedrich, 983 F.2d 

1396, 1403 (6th Cir. 1993). 
14 

of her child, Tatjana, asserting that Tatjana had been wrongfully 

removed from New York to London by the child's nanny at the 

father's request. The father, born and raised in England, was a 

successful musician who enjoyed international fame; the mother 

was a United States citizen who shared her husband's life of 

world-wide public engagements, rehearsals and recording sessions. 

The father owned a home in London which served as the family's 

"base". In the early part of 1989, the father's band was about 

to embark on a tour, starting with the United States, going next 

to the Far East, and ending with a stay of indefinite duration in 

London. The parents rented or borrowed a friend's New York 

apartment, having decided that Tatjana and her mother would live 

in New York while the father was on tour. Because Tatjana's 

speech skills were deficient for a two-and-a-half year old child, 

the mother consulted a New York speech therapist with whom she 

discussed arrangements for therapy sessions for Tatjana during 

their stay. Toward the end of January, 1989, the family moved 

into the New York apartment. After accompanying the father on 

various engagements in British Columbia and the United States 

during the first week of February, 1989, Tatjana, her mother and 

her nanny returned to New York, even though her father only 

reluctantly agreed to that course, preferring to have Tatjana 

return with the nanny to the London home. Two days after the 

father's departure for the Far East, Tatjana's nanny telephoned 

him to report a heated argument with Tatjana's mother. The 

father authorized the nanny to take Tatjana immediately to 

England, which she did. 
15 

 In her petition, the mother alleged that Tatjana's 

habitual residence was New York and that her rights of parental 

guardianship under New York law had been breached by the child's 

removal. In deciding the question of habitual residence, the 

court initially observed that the concept is fluid, fact-infused 

and largely free from technical rules and presumptions, id. slip 

op. at 9,0 and recognized that although "[t]he residence whose 

habituality has to be established is that of the child[,] [i]n 

the case of a child as young as Tatjana, the conduct and the 

overtly stated intentions and agreements of the parents during 

the period preceding the act of abduction are bound to be 

important factors and it would be unrealistic to exclude them". 

Id. slip op. at 10. 

 In its opinion, the court set forth a governing 

principle for ascertaining the elements of habitual residence, 

which we find instructive: 

[T]here 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 

 

0 In Rydder v. Rydder, 49 F.3d 369 (8th Cir. 1995), a 

case arising under the Convention, the Court of Appeals for the 

Eighth Circuit was guided by this observation from Re Bates, No. 

CA 122-89, High Court of Justice, Family Div'l Ct. Royal Courts 

of Justice, United Kingdom (1989), in affirming the district 

court's treatment of the children's Swedish residence 

registration as a legal fiction of little consequence to the 

determination of their habitual residence. Rydder, 49 F.3d at 

373. 
16 

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. 

Id. (citation omitted). 

 Applying this principle to the facts, the court 

concluded that because New York had acquired a "sufficient degree 

of continuity to enable it properly to be described as 

settled[,]" it was Tatjana's habitual residence within the 

meaning of Article 3 of the Convention: 

The New York plan had acquired a more settled 

purpose by the time that the parties were in 

Seattle and Vancouver in the first few days 

of February, and the father's departure on 

his Far East tour was immediately imminent. 

New York had by then become the city in which 

the mother wanted to stay and in which the 

father had reluctantly agreed to allow her to 

stay with Tatjana, at least until the band 

returned to London in April 1989. The extent 

to which New York would feature in their 

lives thereafter would depend very much on 

the decision which the parents then made 

about their personal lives . . . . 

. . . I am satisfied that the arrangements 

that had been agreed, however acrimoniously, 

before the abduction date between the two 

parents for Tatjana's 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. 

Id. slip op. at 9-10.0

 

0 The court then determined that the mother's rights of 

parental guardianship under New York law had been breached and 

that Tatjana's return would not expose her to a grave risk of 
17 

 Guided by the aims and spirit of the Convention and 

assisted by the tenets enunciated in Friedrich v. Friedrich and 

Re Bates, we believe that a child's habitual residence is the 

place where he or she 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. We further 

believe that a determination of whether any particular place 

satisfies this standard must focus on the child and consists of 

an analysis of the child's circumstances in that place and the 

parents' present, shared intentions regarding their child's 

presence there. 

 When we apply our definition of habitual residence to 

the facts, we conclude that Australia was Evan's habitual 

residence immediately prior to his retention in the United States 

by Mrs. Feder. Evan moved, with his mother and father, from 

Pennsylvania to Australia where he was to live for at the very 

least the foreseeable future, and stayed in Australia for close 

to six months, a significant period of time for a four-year old 

child. In Australia, Evan attended preschool and was enrolled in 

kindergarten for the upcoming year, participating in one of the 

most central activities in a child's life. Although Mr. and Mrs. 

Feder viewed Australia very differently, both agreed to move to 

that country and live there with one another and their son, and 

did what parents intent on making a new home for themselves and 

 

physical or psychological harm, as the father asserted. 

Accordingly, the court granted the mother's petition. Re Bates, 

No. CA 122-89, slip op. at 11. 
18 

their child do -- they purchased and renovated a house, pursued 

interests and employment, and arranged for Evan's immediate and 

long-term schooling. That Mrs. Feder did not intend to remain in 

Australia permanently and believed that she would leave if her 

marriage did not improve does not void the couple's settled 

purpose to live as a family in the place where Mr. Feder had 

found work. 

 We thus disagree with the district court's conclusion 

that the United States, not Australia, was Evan's habitual 

residence and with its analysis of the issue in several respects. 

In rejecting Australia, the court placed undue emphasis on the 

fact that the majority of Evan's years had been spent in the 

United States, ignoring the approximately six months that Evan 

lived in Australia immediately preceding his return to the United 

States and the circumstances of his life in Australia. Moreover, 

the court disregarded the present, shared intentions of both Mr. 

and Mrs. Feder with regard to Evan's stay in Australia, focusing 

instead on Mrs. Feder exclusively and on the facts which 

indicated that she did not intend to remain in Australia if her 

marriage ended at some future date.0 Finally, we find the 

court's reliance on In re Ponath, 829 F. Supp. 363 (D. Utah 

1983), where the court found that a child was habitually resident 

in the United States as alleged by the respondent-mother, not in 

 

0 For essentially the same reasons, we disagree with the 

dissent's view that the United States was Evan's habitual 

residence immediately prior to the retention. As the country of 

Evan's relatively distant past and Mrs. Feder's unilaterally 

chosen future, it does not coincide with our understanding of 

habitual residence nor satisfy the definition we have enunciated. 
19 

Germany as alleged by the petitioner-father, misplaced. There, 

what began as a voluntary visit to the father's family in Germany 

by the mother and child, both of whom resided in the United 

States, turned into "coerced residence" by virtue of the verbal, 

emotional and physical abuse that the father successfully used to 

prevent his wife's and child's return to the United States. Id.

at 368. Such is clearly not the case here. 

 We thus hold that Evan was habitually resident in 

Australia immediately prior to his retention by Mrs. Feder in the 

United States. 

B. 

 Our analysis, however, does not end here. Having 

concluded that Evan was a habitual resident of Australia, we must 

now determine whether his retention by Mrs. Feder was wrongful 

under Article 3 of the Convention. This determination involves 

two inquiries: whether the custody rights Mr. Feder enjoyed 

under Australian law were breached by the retention and whether 

Mr. Feder was exercising those rights at the time.0 

 With regard to Mr. Feder's custody rights under 

Australian law, we recall that the Convention calls into play a 

State's choice of law rules as well as its internal custody 

rights laws. See supra p. 11. We must, therefore, initially 

determine what law Australia would apply in this case. Among the 

 

0 We may decide both of these questions since the first 

is a question of law and the second involves an admission on Mrs. 

Feder's part. See infra pp. 22-23. 
20 

documents included in the minutes of the discussions of the 

Fourteenth Session of The Hague Conference are a "Questionnaire 

on international child abduction by one parent", and the "Replies 

of the Governments to the Questionnaire". 3 Actes et documents 

de la Quatorzieme session 9, 9-11, 61, 61-129 (1982) ["Convention 

Documents"]. Australia's reply to questions 17 and 18, which ask 

respectively "[w]hat are your choice-of-law rules in child 

custody cases?" and "[a]re there any norms of constitutional or 

other fundamental law in your country which would override the 

usual choice-of-law rules in custody cases?", Convention 

Documents at 11, provides in pertinent part that 

Australian courts apply Australia's Family Law Act 1975 to 

custody questions: 

Under the Family Law Act [1975], if the court 

has jurisdiction0 to hear an application for 

custody of, or access to, a child . . . it 

applies the provisions of the Act governing 

the determination of custody and access 

applications regardless of the nationality or 

place of domicile or habitual residence of 

the child. 

Convention Documents at 65. See also PETER E. NYGH, CONFLICT OF 

LAWS IN AUSTRALIA, Ch. 27 (5th ed. 1991). 

 

0 In reply to question 9 of the "Questionnaire on 

international child abduction by one parent", "[w]hat bases do 

your courts use for assuming jurisdiction in child custody 

cases?", 3 Actes et documents de la Quatorzieme session 9, 10 

(1982) ["Convention Documents"], Australia stated that under the 

Family Law Act 1975, such proceedings may be instituted if either 

party to the marriage is an Australian citizen or either party 

to, or the child of, the marriage is present in Australia. 

Convention Documents at 64. 
21 

 Thus, Mr. Feder's custody rights are determined by 

Australia's Family Law Act 1975, of which we may "take notice 

directly . . . without recourse to the specific procedures for 

the proof of that law. . . ." Hague Convention, Article 14.0

Under the Act, in the absence of any orders of court, each parent 

is a joint guardian and a joint custodian of the child,0 and 

guardianship and custody rights involve essentially the right to 

have and make decisions concerning daily care and control of the 

child.0 Family Law Act 1975 s 63(E)(1)-(2), (F)(1). See also

Hague Convention, Article 5a. 

 

0 We observe that the Australian court to which Mr. Feder 

made application for declarations under the Hague Convention 

applied Australia's Family Law Act 1975 to determine whether Mrs. 

Feder's retention of Evan was wrongful. See supra p. 7. The 

court's opinion, however, does not indicate whether a conflict of 

laws analysis was done. 

0 Section 63(F)(1) states: 

Subject to any order of a court for the time 

being in force (whether or not made under 

this Act and whether made before or after the 

commencement of this section) each of the 

parents of a child who has not attained 18 

years of age is a guardian of the child and 

the parents have the joint custody of the 

child. 

Family Law Act 1975 s 63(F)(1). 

0 Subsections 63E(1) and (2) provide: 

63E(1) [Guardianship of child] A person who 

is the guardian of a child under this Act has 

responsibility for the long-term welfare of 

the child and has, in relation to the child, 

all the powers, rights and duties that are, 

apart from this Act, vested by law or custom 

in the guardian of a child, other than: 

 (a) the right to have the daily care and 

control of the child; and 
22 

 Turning next to the Convention's requirement that Mr. 

Feder was actually exercising the custody rights he had at the 

time of the retention, Hague Convention, Article 3b, we observe 

that Mrs. Feder conceded both in the district court and before us 

on appeal that Mr. Feder had and was exercising joint custody 

with respect to decisions concerning their son. Accordingly, we 

hold that Mrs. Feder's unilateral decision to retain Evan in the 

United States was wrongful within the meaning of Article 3 of the 

Convention. 

IV. 

 As we recognized, there are exceptions to the Hague 

Convention on the Civil Aspects of International Child Abduction 

general rule that a child's return is mandatory where he or she 

has been wrongfully retained by a parent. Hague Convention, 

Article 13. Here, Mrs. Feder raised one of the exceptions, 

asserting that Evan's return would expose him to a grave risk of 

 

 (b) the right and responsibility to make 

decisions concerning the daily care and 

control of the child. 

63E(2) [Custody of child] A person who has 

or is granted custody of a child under this 

Act has: 

 (a) the right to have daily care and 

control of the child; and 

 (b) the right and responsibility to make 

decisions concerning the daily care and 

control of the child. 

Family Law Act 1975 s 63(E)(1), (2). 
23 

psychological or physical harm or otherwise place him in an 

intolerable situation. Hague Convention, Article 13b. In light 

of its conclusion that Mr. Feder failed to satisfy his burden of 

proof on the threshold question, the district court did not reach 

this issue. 

 This case, therefore, must be remanded for the district 

court to consider in the first instance whether as the 

International Child Abduction Remedies Act requires, Mrs. Feder 

can establish the exception by clear and convincing evidence. 42 

U.S.C. § 11603(b). We note that the exceptions are narrowly 

drawn, lest their application undermines the express purposes of 

the Convention. Indeed, the courts retain the discretion to 

order return even if one of the exceptions is proven. Pub. 

Notice 957, 51 Fed. Reg. 10494, 10509 (1986). If needed, the 

district court should supplement the record on this issue, and as 

it so appropriately did before, render its decision as 

expeditiously as is possible since time is of the essence given 

Evan's young age. 

 We also note that in order to ameliorate any short-term 

harm to the child, courts in the appropriate circumstances have 

made return contingent upon "undertakings" from the petitioning 

parent. Thomson v. Thomson, 119 D.L.R.4th 253 (Can. Sup. 1994). 

The district court, on its own initiative, heard testimony about 

the undertakings Mr. Feder was willing to make in the event that 

Evan returned to Australia and was not accompanied by Mrs. Feder. 

Given its denial of Mr. Feder's petition, however, the court did 

not assess the need for or the adequacy of those undertakings. If 
24 

on remand the court decides that Evan's return is in order, but 

determines that Mrs. Feder has shown that an unqualified return 

order would be detrimental to Evan, the court should investigate 

the adequacy of the undertakings from Mr. Feder to ensure that 

Evan does not suffer short-term harm. See Re O, 2 FLR 349 (U.K. 

Fam. 1994) (exacting appropriate undertakings is legitimate in 

Convention cases). 

 Finally, Mr. Feder has requested fees and costs. 

Section 11607(b)(3) of the International Child Abduction Remedies 

Act requires any court ordering the return of a child under the 

Convention to award fees and costs to the petitioner unless the 

respondent establishes that such order would be "clearly 

inappropriate". 42 U.S.C. § 11607(b)(3). In the event that Mr. 

Feder ultimately prevails on remand, the district court should 

also consider and decide this issue. 

V. 

 For the foregoing reasons, we will vacate the district 

court's denial of Mr. Feder's petition and remand the case to the 

district court for further proceedings on the exception raised by 

Mrs. Feder and if necessary, on the questions of undertakings by 

Mr. Feder and his request for an award of fees and costs. 
25 

Feder v. Evans-Feder, No. 94-2176. 

SAROKIN, Circuit Judge, dissenting. 

 I respectfully dissent, not necessarily because I 

disagree with the majority's analysis of the facts, but rather 

with the standard by which these facts are reviewed. The issue 

presented to the district court was the determination of a four 

year-old boy's "habitual residence," either Jenkintown, 

Pennsylvania, where he has lived almost his entire life and where 

his mother now resides, or Sydney, Australia, where he stayed for 

five months in 1994 and his father now resides. Resolution of 

this issue determines where the child shall reside pending 

conclusion of his parents' custody dispute. 

 The district court held an evidentiary hearing and 

ruled that the boy was habitually resident in Jenkintown. The 

majority subjects this determination to plenary review and 

vacates the order of the district court, which likely will result 

in an order that the child be sent to Sydney where his father 

lives. Although the majority's opinion does not and is not meant 

to resolve the ultimate issue of custody, it has immediate impact 

on the child's place of residence, and ultimately and 

realistically it will impact upon the final custody 

determination. Where a child resides and develops ties awaiting 

a final decision on custody invariably affects that decision. 

Therefore, we should disturb the existing relationship and a 

finding of habitual residency, even on a temporary basis, with 
26 

great hesitancy and only when the facts and law clearly mandate 

it. 

 In my view the issue of habitual residence is 

essentially a factual one, and the findings of the district court 

should not be disturbed unless they are clearly erroneous. 

Because I respectfully believe that the majority has established 

an incorrect standard of review, and because I would affirm the 

district court's finding as supported by the evidence and not 

clearly erroneous, I dissent. 

I. 

 The U.S. Senate ratified the 1980 Hague Convention on 

Civil Aspects of International Child Abduction ("the Convention") 

and enacted supplementary implementing legislation, the 

International Child Abduction Remedies Act of 1988, 42 U.S.C.A. 

§11601 et seq. (West 1995) ("ICARA" or "the Act"), only recently, 

and thus reported cases pursuant to the Convention are relatively 

scarce. Although three appellate decisions have reviewed ICARA 

petitions disposed of after an evidentiary hearing, none has 

enunciated an explicit standard of review. See Prevot v. Prevot 

(In re Prevot), ___ F.3d ___, 1995 WL 413694 (6th Cir. July 14, 

1995); Rydder v. Rydder, 49 F.3d 369 (8th Cir. 1995); Friedrich 

v. Friedrich, 983 F.2d 1396 (6th Cir. 1993). Hence, ours is the 

first court of appeals in the nation to analyze the appropriate 

standard of review for determinations of "habitual residence," 

and we must tread carefully because of its immediate effect upon 

the residency of the child involved. 
27 

 In a footnote, the majority announces that because the 

determination of habitual residence is a mixed question of fact 

and law, historical or narrative facts will be reviewed for clear 

error and the "choice and interpretation of legal precepts and 

its application of those precepts to the facts" will be subjected 

to plenary review. Maj. Op. at ___, n.9 [typescript at 12, n.9]. 

This is certainly the proper standard for mixed questions of law 

and fact, but I cannot agree that "habitual residence" presents 

such a question. 

 Preliminarily, I remark that federal and state courts0

have struggled over this precise issue, with some making findings 

of fact and others conclusions of law regarding a child's 

habitual residence. Compare Wanninger v. Wanninger, 850 F.Supp. 

78, 81 (D.Mass. 1994) ("the court finds that the children were 

'habitually resident' in Germany"); Meredith v. Meredith, 759 

F.Supp. 1432, 1436 (D.Ariz. 1991) (habitual residence is finding 

of fact); David B. v. Helen O., 625 N.Y.S.2d 436, 438 ("the 

court's finding with respect to the habitual residence issue is 

dispositive") & 441 n. 3 (Fam.Ct. 1995); Roszkowski v. 

Roszkowska, 644 A.2d 1150, 1157, 274 N.J.Super. 620, 634 (Ch.Div. 

1993); Cohen v. Cohen, 158 Misc.2d 1018, 1024, 602 N.Y.S.2d 994, 

998 (Sup.Ct. 1993) (habitual residence is "factual 

determination"); with Prevot v. Prevot (In re Prevot), 855 

F.Supp. 915, 920 (W.D.Tenn. 1994) (habitual residence is 

conclusion of law), rev'd on other grounds, ___ F.3d ___, 1995 WL 

 

0Under the Act, state and federal courts have concurrent 

jurisdiction over ICARA petitions. 42 U.S.C.A. §11603(a). 
28 

413694 (6th Cir. July 14, 1995); In re Ponath, 829 F.Supp. 363, 

367 (D.Utah 1993); Slagenweit v. Slagenweit, 841 F.Supp. 264, 269 

(N.D.Iowa 1993), appeal dismissed without op., 43 F.3d 1476 (8th 

Cir. 1994); Falls v. Downie, 871 F.Supp. 100, 102 (D.Mass. 1994). 

Encompassing all, the district court here wrote that it "finds 

and concludes that the habitual residence of Charles Evan Feder 

is in the United States." Feder v. Evans-Feder, 866 F.Supp. 860, 

868 (E.D.Pa. 1994) (emphasis added).0

 First, "habitual residence" is not defined in either 

the Convention or the Act, and consequently one must look to the 

legislative and negotiating history. Unfortunately, neither the 

legislative history of the Act nor the U.S. Department of State 

legal analysis submitted to the Senate by President Reagan during 

ratification reveal the proper standard of review. See H. Report 

No. 525, 100th Cong., 2d Sess., 1988 U.S.C.C.A.N. 386, 392-96; 

U.S. Department of State, Legal Analysis, Hague International 

Child Abduction Convention ("Legal Analysis"), 51 Fed.Reg. at 

10504. 

 The term is discussed in one document, however, that 

reveals its meaning to the Convention. According to the U.S. 

Department of State, the report by the official Hague Conference 

Reporter for the Convention is "recognized by the Conference as 

the official history and commentary on the Convention." Legal 

 

0I thus think the majority errs by characterizing the district 

court as "concluding that the United States was Evan's 'habitual 

residence.'" Maj. Op. at ___ (Typescript at __) (emphasis 

added). 
29 

Analysis, 51 Fed.Reg. at 10503. This "official history and 

commentary" explains: 

'habitual residence' . . . is, in fact, a familiar 

notion of the Hague Conference, where it is understood 

as a purely factual concept, to be differentiated 

especially from that of the 'domicile.' 

Elisa Perez-Vera, "Report of the Special Commission," Conference 

de La Haye de droit international prive: Actes et documents de la 

Quatorzieme session, Vol. III, Child Abduction, ¶ 60 at 189 

(emphasis added). Examination of a treaty's negotiating history 

is appropriate where the plain language itself is unclear. See

Sale v. Haitian Ctrs. Council, ___ U.S. ___, 113 S.Ct. 2549, 

2565-67 (1993). In this regard, analysis of negotiating history 

is akin to consideration of legislative history in a case of 

statutory construction. Accordingly, the official history's 

characterization of habitual residence as "a purely factual 

concept" is powerful evidence that its drafters intended a 

determination of habitual residence to be one of fact, not of 

law. 

 Second, the jurisprudence of habitual residence has 

generally reflected the fact-bound nature of the inquiry. The 

Sixth and Eighth Circuits have approved a British construction of 

the term: 

It is greatly to be hoped that the courts will resist 

the temptation to develop detailed and restrictive 

rules as to habitual residence, which might make it as 

technical a term of art as common law domicile. The 

facts and circumstances of each case should continue to 

be assessed without resort to presumptions or presuppositions. 

In re Bates, No. CA 122-89, slip op., High Court of Justice, 

Family Div'n Ct. Royal Courts of Justice, United Kingdom (1989), 
30 

at 9 (quoting Dicey and Morris, The Conflict of Laws, at 166); 

Rydder, 49 F.3d at 373; Friedrich, 983 F.2d at 1401. See also

Ponath, 829 F.Supp. at 365. "The intent is for the concept 

[habitual residence] to remain fluid and fact based, without 

becoming rigid." Levesque v. Levesque, 816 F.Supp. 662, 666 

(D.Kan. 1993). Even the Bates decision, treated by the majority 

as authoritative, referred to a "finding of wrongful removal," 

Bates, slip op. at 9, which of course depends on a determination 

of habitual residence. Such descriptions are consistent with my 

conviction that habitual residence is a factual finding. 

 Third, very recently the Sixth Circuit has 

characterized the question of whether a parent is exercising his 

or her custodial rights as a "finding." Prevot, ___ F.3d at ___, 

1995 WL 413694, *11 n. 4. The actual exercise of custodial 

rights, like "habitual residence," is an element of a 

petitioner's proof that a removal or retention was "wrongful." 

See Convention, Article 3; 42 U.S.C.A. §11603(e)(1). I agree 

with the Sixth Circuit and perceive absolutely no reason to treat 

a determination of habitual residence, as required in Article 

3(a), as a legal conclusion, but that of the actual exercise of 

custodial rights, as required in Article 3(b), as a factual 

finding. 

 Fourth, the Act's use of the phrase "establish by a 

preponderance of the evidence" to describe a petitioner's burden 

of proving wrongful removal from a place of habitual residence 

signals that habitual residence is a fact question. 42 U.S.C.A. 

§11603(e)(1). 
31 

 Finally, the majority's treatment of habitual residence 

confuses "ultimate facts" with "mixed questions of fact and law." 

While an ultimate fact may depend on subsidiary findings of fact, 

it is nonetheless a factual finding and must be reviewed for 

clear error. Pullman-Standard, Div. of Pullman, Inc. v. Swint, 

456 U.S. 273, 287 (1982). For example, the following 

determinations have been characterized as "ultimate facts" and 

reviewed for clear error: intentional discrimination, PullmanStandard, 456 U.S. at 287; "more than minimal planning," United 

States v. Cianscewski, 894 F.2d 74, 83 (3d Cir. 1990); 

"equivalence" in a patent dispute, Interdynamics, Inc. v. Wolf, 

698 F.2d 157, 176 n.36 (3d Cir. 1982); and "a bankruptcy court's 

ultimate finding of fact," Bittner v. Borne Chemical Co, 691 F.2d 

134, 138 (3d Cir. 1982). To scrutinize ultimate facts by a 

standard less deferential than that of clear error is 

"untenable," American Home Products Corp. v. Barr Laboratories, 

Inc., 834 F.2d 368, 371 (3d Cir. 1987), and to the extent our 

circuit once reviewed ultimate facts in part for legal mistake, 

"we were wrong." Martin v. Cooper Electric Supply Co., 940 F.2d 

896, 908 n.11 (3d Cir. 1991), cert. denied, 503 U.S. 936 (1992). 

Indeed, if the question of Evan's habitual residence had been 

submitted to a jury rather than a judge, I would doubt that we 

would set aside the same decision on the grounds that it was 

mandated as a matter of law. 

 Accordingly, I conclude that the determination of a 

child's habitual residence is best described as a factual 

finding. I would review the district court's ruling on Evan's 
32 

habitual residence for clear error, see Fed.R.Civ.P. 52(a), and I 

would not disturb it unless left with the definite and firm 

conviction that a mistake had been committed. Oberti v. Board of 

Educ., 995 F.2d 1204, 1220 (3d Cir. 1993). Even if I "might have 

come to different factual conclusions based on this record, [I] 

defer to the findings of the district court unless [I am] 

convinced that the record cannot support those findings." Id.

III. 

 I agree with the majority opinion that "a child's 

habitual residence is the place where he or she 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." Maj. Op. at __ [typescript at 17]. 

Yet, "the desires and actions of the parents cannot be ignored by 

the court in making that determination when the child was at the 

time of removal or retention an infant." Ponath, 829 F.Supp. at 

367. Having reviewed the findings of the district court, 

however, I am not left with a "definite and firm conviction" that 

a mistake has been committed. Oberti, 995 F.2d at 1220. 

Therefore, I would affirm. 

 I believe the habitual residence determination requires 

a weighing of those facts which indicate a settled purpose to 

reside in one location or another, as well as those which suggest 

close ties to a particular community. As of January 8, 1994, the 

parties agreed that the scales tipped decisively in favor of 

Jenkintown as Evan's habitual residence. Maj. Op. at ___ 
33 

[typescript at 8]; Feder, 866 F.Supp. at 865. Yet as of this 

date, a number of the facts relied on by the majority had already 

been placed on the Sydney side of the balance. As of that date: 

(a) Mr. Feder had a settled purpose to live in Australia; (b) 

Mrs. Feder had agreed to go to Australia, with Evan but "without 

any commitment to remain there," Feder, 866 F.Supp. at 863; (c) 

Mr. Feder had purchased a home in Australia for the family; (d) 

the couple had put their Jenkintown home on the market; (e) the 

couple had sold many of their household possessions in 

Pennsylvania; and (f) Mrs. Feder and Evan had temporary 

immigration status to reside in Australia. Nonetheless, the 

parties agreed that these factors, alone or in sum, did not make 

Australia Evan's habitual residence, absent some dispositive 

subsequent conduct. 

 The question thus becomes, what if anything occurred in 

the subsequent five and one-half months sufficient to alter the 

balance? The district court carefully canvassed the evidence 

introduced at the hearing and determined that it was insufficient 

to alter the balance that existed before Mrs. Feder and Evan 

traveled to Sydney. The court observed that Mrs. Feder had 

obtained one day of employment, a single performance with the 

Sydney Opera, scheduled for thirteen months after her arrival; 

Evan attended pre-school part-time, enrolled in kindergarten for 

the upcoming year, and was placed on a waiting list for a private 

school; and Mrs. Feder and Evan had obtained Australian Medicare 

cards. Feder, 866 F.Supp. at 864. On the other hand, unlike her 

husband, Mrs. Feder declined to surrender her Pennsylvania 
34 

driver's license or to obtain an Australian one. Nor did she or 

Evan submit to the physical examination necessary to acquire 

permanent immigration status in Sydney, or sign any papers in 

support of the application Mr. Feder filed on their behalf. Id.

These events, all comparatively trivial, do not persuade me that 

the district court committed clear error. Rather, they seem to 

confirm that Mr. Feder always had a settled purpose to reside in 

Sydney, but Mrs. Feder arrived without a settled purpose to 

remain, and departed never having developed one. Nor do these 

events indicate anything about Evan's own intentions. 

 I agree with the majority that there is a temporal 

element to this inquiry. For example, two weeks in Australia 

certainly would not suffice for Evan to establish a habitual 

residence there, and after two years his mother would have been 

hard put to argue that Jenkintown remained his home. Moreover, 

given that "habitual residence" should not be over-encumbered 

with legal rules, I would not establish a bright-line time period 

necessary to establish residence. Yet I cannot conclude that 

five and one-half months is so obviously sufficient that I would 

reverse the district court's finding as clearly erroneous. In 

this regard, I note that Article 12 of the Convention directs 

that even when a child has been wrongfully removed from his 

habitual residence, if the child has spent a year (prior to the 

filing of the petition) in a new location, return may be thwarted 

by a demonstration that the child "is now settled." Thus in 

another context, the Convention recognizes that at least one year 
35 

must pass before a child can be sufficiently "settled" so as to 

affect the location where custody will be adjudicated. 

 In addition, as of the date of the alleged wrongful 

removal, Evan had lived far longer in Jenkintown than in Sydney. 

While it may be that Mr. Feder had, and Mrs. Feder did not have, 

a settled purpose to reside in Sydney, it is significant that 

Evan stayed with his mother in Jenkintown until she left, 

travelling to Sydney only when she did. This indicates some 

correspondence between the purposes of mother and child. While 

it is virtually impossible to ascertain the settled purpose of 

such a young child, it is more closely aligned here to that of 

the mother. That is not meant to indicate that the mother's 

purpose should necessarily predominate, but rather that the facts 

of this matter support that conclusion. 

 Finally, we must be mindful of the consequence of a 

reversal here, since it will likely result in an order for the 

child's return to Australia, unless Mrs. Feder can prove by clear 

and convincing evidence that Evan would be at "grave risk" were 

he returned to Sydney. Absent such proof, the child will be 

taken from his mother's home in Jenkintown, where he has spent 

virtually all of his years, in contrast to the time spent with 

his father in Australia. Since this ruling is temporary pending 

a custody adjudication, he may again be ordered back to the 

United States. Although the best interests of the child will be 

determined ultimately, they should not be ignored in these 

preliminary proceedings. Such tugging and shuttling can only be 
36 

detrimental. Thus, absent clearly erroneous fact-finding by the 

district court, its ruling should remain undisturbed. 

 Accordingly, I would affirm the district court's 

finding that Evan's habitual residence is the United States.0

 

0I add a note to endorse the majority's suggestion that, in the 

event the district court determines a return order would pose no 

"grave risk" to Evan but would nonetheless be detrimental to him, 

the court may evaluate the adequacy of undertakings offered by 

Mr. Feder. Maj. Op. at ___ [typescript at 24]. The "permissible 

involvement" of a court deciding a petition "extends beyond 

bluntly saying that there shall be a return or that there shall 

not. The court can influence the outcome by making clear that 

without undertakings, or with only the undertakings that are 

offered, Art[icle] 13(b) will apply, but that further or other 

undertakings are a prerequisite for a child's return." Re O, 2 

FLR 349 (U.K. Fam.Div. 1994). The district court may, for 

example, require Mr. Feder to pay for mother and child to fly 

back to Sydney, permit them to live at the former matrimonial 

home while he lives elsewhere, and provide them with a car and 

living expenses. Id. The district court may also need to 

investigate whether undertakings offered in the United States 

would be binding and enforceable in Australia, if their 

implementation is necessary to avoid "grave risk" to the child 

returned. See id.
37