### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT March 10,

2004 THOMAS K. KAHN CLERK [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE EL EVENTH C IRCUIT

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_______ No. 03-12 826

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_______ D.C. Docket No. 02-02998-CV-T WT-1 TOM A. FURNES, Plaintiff -Appella nt,

versus PAMELA KAY REEVES, Defendant-Appellee.

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_________ Appeal f rom t he United States D istrict C ourt for th e Norther

n Distric t of Geor

gia

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__________ (March10, 2004) Before T JOFLA T, HU

LL and F AY, C ircuit Judge s. HULL, Circuit Judge: Plaintiff Tom A. Fur nes filed a

petition under the International Child Abduction R

emed ies Act, 42 U.S. C. §§ 11601- 11611 (1988) (“ ICARA ”), see king the return of his daughter Jessica to Norway from Georgia, where she now resides2

with her m

other, D efendant Pame la Kay Reeves. Jessica w as born in N orway in 1996 and live d there unt

il 2001, w

hen her m

other visit ed the Uni ted State s and later refused to bring Jessica back to Norway, in violation of Furnes’s rights under Norweg ian law a

nd their cu stody a greem ent. Af ter an evi dentiary

hearing, the district court denied Plaintiff Furnes’s ICARA petition. Af ter review and oral argument, we re verse. I. Factual Backgroun d A. Norwegian Court’s Custody Order Plaintiff F urnes, a citi zen and resi dent of Norway, and Defendant Ree ves, a citizen a nd resident

of the Uni ted State s, wer e ma rried in 19 94 and resi ded in Norway . Their

daughter J essica w as born on S eptem ber 17, 199 6, in Nor

way, and resided wit h both pa rents unt il they separat ed in Janu ary of 1998. Durin g and after t heir s epara tion , Plain tiff F urnes and De fenda nt Ree ves’s relations hip was m

arked by constant c onflict, and they were una ble to agre e on the division of their assets or the custody of their daughter. Defendant Reeves maintained custody of Jessica during the separation, and com monly thwar

ted Plaintiff Furnes’ s attem

pts to exer

cise his vis itation rig

hts. De fendant Reeves als o made serious allegations against Plaintiff Furnes (including that Furnes had physically threatened and abused Reeves and had poisoned Jessica), which were3

later det ermi

ned to be groundless. I

n addition, in Dece mber

of 1998, th ere wa s a fire in th e home

of Defendant Reev es (the c ouple’s f orme r joint ho me), and Defenda nt Reeves was char

ged with a

rson and insu

rance fr aud. Alt hough ultima tely a cquitted, Defenda

nt Reeves was orde red to pay a large c ivil judgm

ent in connection with the fire. On August 25, 1999, the Bergen City Court in Norway entered an order granting Plaintiff Furnes custody of his daughter Jessica. The Bergen City Court found that t

here wa s little doub t that De fendant Reeves pla yed the “leading part” in the conflict between the parties, that unrest in Reeves’s life negatively affected her ability to care f or her daughter, a

nd that, in

light of her

previous “ sabotage”

of Furnes’s scheduled visits, it was not realistic to believe that Defendant Reeves would be a

ble to resp ect an agr

eement granting access r

ights to Fur

nes. The Bergen C ity Cou

rt specif ically found as fo llows: Production

of evidence has shown that the le vel of conf lict betw een the parties is high, and that there is little doubt as to that it is the defen dant [Reeves ] who is t

h e leading p art in this conflict. She emerges as t he conflict instigator

and has on

several occasions m

ade serio us accusa

tions against the plaintiff and other

involved par

ties. These acc usations hav e later prov en to be complet ely groundle ss. . . . The court also finds ground s to com ment t ha t the def

endant is presently involve d in two cas es with the plaintif f in two differentcourts: a dispute conc erning a di stribution of estate a nd the case

concerning custody /access of the chil d. Mo reover, she has been rem anded in custody and is sti ll charged with arson , i n surance f raud and f

or filing4

false compl aints. In spite of th is sh e is a lso involved in and has hired att orn eys for a private lega l dispute in c onnection wit h the purcha se of a dog. Thus there is much unrest involved with her a nd this ha s undoub tedly a negati ve affect in re gards to t he care of the child. The defendant

has furthermore shown a n egative a ttitude to cooperati ng with the plaintiff concerning already determ ined access. . . . In this conne cti on the court refers to that the defendant in several occasions has sabotaged the visits that have been determ ined by legally enforceabl e and prov isional decision s concerni ng access. . . . It is the court’s opinion that this episode clearly shows that th e defendant has problems respect in g the child’ s rights and protectin g the child from conflicts betw een th e parties . As maintained by the e xpert, the defendant can not differentiate between her own fears a

nd skepticis m and the ch ild’s f

ears and skepticism. Another situation that the court would like to mention in this connection is the episo de that took place at the home of the plaintiff, where the def endant, in the p rese nce of the expert, p rovoked a conflict with the plaintiff, knowing that the expert was preparing his report to be used in the upcoming case. The court is not in doubt that continuous conflicts at this level ov er a period of

timewill be ha

rmf ul for the child. In contra st, the Bergen City Court foun d, based in part on the testim ony of the psychiatrist assigned as the case expert, that Plaintiff Furnes was an understa nding an d cooperat ive parent and was able t o offer Jess ica a secure h ome. On tha t bas is, th e Berg en Cit y Court concl uded that, notwi thst andi ng Je ssic a’s prima ry at tachm ent to her m

other, F urnes wa s best suite d to maintain cust ody of Jessica, as follow s: The cou rt ag rees with the exp ert t hat the pla int iff i s th e pa rty th at emerges as the best

suited per son to care

for Jessic a, a lso taking into considera tiont he conflicts and cooperati on problem s betwee n the parti es. In the court’ s opinion, a transf er of custody to th e plaintif f in itself might5

reduce th e possibilitie s for conf licts and th ereby

createmore

peace an d quiet for the child. The plaintiff has shown that he is more aw are of the chil d’s situation in

relation to the confl ict than the defendant

is, and there is little re ason

to believe that his negativ e attitude towards t he other pa

rty will hinder the

child from

having conta ct wit h h er mo ther. In this connection

t he court finds rea son to refer to the fo llowing fr om the expert’s repo rt. . . . “Ms. Reeves is the person that Jessica is primarily at tac hed to. However, it is Mr. Furnes tha t has shown most un derstandin g for Jess ica’s needs for

regular contact with both parents and for her marked needfor peace in her current situation. . . . I n addition, Mr. Furnes, in his current situation, is able to offer Jessica a secure home and a more structuredlife than the mo ther can, though this can not be given decisive im porta nce as one m

ust expect Ms. Ree ves’ sit uation to im

prove wit h time.” Having concluded that Plaintiff Furnes was the more fit parent, the Bergen City Court granted custody of Jessica to her father, Plaintiff Furnes, and mere access rights to her mother, Def endant Reeves. Specifically, the Bergen City Court ordered t hat Jessic a live wi th her fa ther and th at Defendant Reev es have ac cess to Jessica on alternat

ing weekends; alter

nating W ednesday s; alterna ting Christ

mas, New Y ear, a

nd Easter holiday s; and for t

wo week s over Jess ica’s s ummer vacat ion. B. Settlemen t Agreement Defendant Reeves appealed the August 25, 1999, judgment of the Ber gen City Court to the Norwegian Gulating Court of Appeals. I n 2001, the parties reached an agreement re garding custody (the “Agree ment”), which w as approved by the G ulating Cour

t, and the appeal w as dismissed. Pu rsuant to th e Agree ment,6

dat ed Fe bru ary 28 , 20 01, the part ies wou ld mai nta in “jo int pare nta l res pon sib ili ty” for their daughter un der Norw egian law ; Jessica w ould live w ith her m other; and her father wou ld have acce ss to thei r daughte r on certain days and at certa in times. Specific ally, the Agre emen t provided in relevan

t part as f ollows: 1. Today

a court se ttlem ent has been entered into be tween Pame la Kay Reeves, date of bir

th and Nat

ion ID No. 2 4.02.69 252 70, hereinafter

called the m other, a

nd Tom Arne Furnes, date of bir

th and National ID No. 23.12.67 45788, hereinafter called the father. 2. The agreem

ent conce rns our

child, Je ssica Ann e Kristine Furnes, date of birth and National ID No. 17.09.96 38072, her e inafter called the daughter

. 3. We shall have joint parental responsibility for our daughter

. 4. Th e daughter s hall live w ith her m other, w ho shall have

custo d y of the chil d. 5. The father shall have the following access to the daughter : a) Alterna

ting weeks from T

hursday at

4p m to Monday morning when the d aught er is to be brought at school (kindergarten). b) Alterna

ting fall vacations. During the fall vac ation 2001 the daughter shall be with the mother. c) Alterna

ting Christmas v a cations. During the Christmas vacation 2001 the daughter shall be with the father. d) Alterna

ting Easter

vacations. During the

Easter vacation 2001, from

April 9, 2001 to Apr

il 17, 2001, th e daugh ter shall be with the father. e) Three weeks durin g the summer, whereof two of the we eks shall be co nsecut ive. Summer vacations shall be agreed upon within M ay 1st of every year . In reg ards to the

2001 summer vac ation, the m other shal l decide w hen she wa

nts to have her vacation an d t hereaft er the tw o parents s hall alternat ely

decide the ir vacati ons every other y ear wit

hin May 1s t.1 Sections 31 and 33 relate to the child’s rights of self-deter mination as he or she grows older, such as the rights to state her opinion at age 12 and to make decisions as she “comes of age.” Jessica was not y

et five yea

rs old when removed from Norway in 2001, and is only seven years old now. Thus, the limits of those sections are not involved in this case.

7 6. The parents ha

ve furthe r agreed

to c ooperat e loyally fo r the best for their daug

hter, en suring that th is agreem ent and wh at it confirms can be ca rried out. (Emphas is added.) The ter m “ joint parental responsibility” used in the Agreem ent has a designated

mea ning under N orwegia

n law. T hus, in addi tion to acc ess rights, Plai nti ff Fu rne s ha d ad dit ion al ri ght s as soc iat ed wi th “jo int pare nta l res pon sib ili ty” under Nor

wegian la w. Spe cificall

y, und er Norw ay’ s Act No. 7 of 8 Apr il 1981 relating t o Children and Pare nts (the “ Children A ct”), pa rental r esponsibilit

y is broadly defined to include the right “to m ake decisions for the child in personal matters.” Se ction 30 of t he Children Act stat es: Meaning of parental responsibility The child is entitled to care and conside ration fr om thos e who have parental responsi bility. These pe rsons ha ve the right

and the dut y to make decisions for the child in personal matters within the limit s set by sections 31 and 33 1 . Pare ntal respo nsibil ity shall be ex ercised o n the basis of the

child’s interests and needs. Those who have p arental r esponsibi lit y are under

obligation to bring up and m aintain the child pro per ly. They

shall ensur

e that the child receives an education according to his or her ability and aptitude. The child m

ust not be subj ected to vi olence or in any way

be treated s o as to harm

or endange r his or her

menta l or phy sical health. As regar ds the right

to ma ke decision s on behalf

of the chil di n financ i al matt ers, the

provisions of

Act No. 3 of 22 Apr

il 1927 on Guar dia nsh ip s hal l ap ply.8

Children A ct, § 30 (emphas is added). Accordi ngly, under § 30, a parent with joint “parental responsibility” has the r ight, albe it a share d right, “ to make decisions for the child in personal matters.” Where parents e xercise “

joint parental responsibility” but the ch ild lives w ith only one parent, this joint

but broad de cision-m

aking author

ity of the other p arent granted und er § 30 is, however , narrow ed by § 3 5b of the Ch ildren Ac t, as fol lows: Decisions that

may be take n by the

person with whom the child lives perm anently If the paren ts have joint par

ental res ponsibility , but the child lives perm anently

with only one of them , the othe r parent may not objec t to the parent with whom

the child lives makin g decisions c oncerning import ant aspects of the child’s care , such as t he question of

whether the child sh all attend aday-care centre, where in Norway the child shall live and other major decisions concerning everyday life. Id. § 35b (emphasis added). Accordingly , where the parents have “ joint parental responsibil ity,”

the paren t with who m the child resi des (in this case, D efendant Reeve s) has decis ion- making auth orit y “concern ing i mportan t asp ects o f the c hild ’s care,” but not all a spects of t

he child’ s care. Section 35 b of the Chi ldren’ s Act thus does not take away all decision-m aking authority granted the other parent under § 30. Instead, Plaintiff Furnes still retains some decision-m aking authority over some aspects of the child’s care under § 35(b) and for the child in other personal matters under § 30.9

In addition, while the

parent w ith whom

the child resides has the authori ty under § 35b to determ

ine where the child

will live within No rway , § 43 of the Children A ct grants a

parent w ith joint p arental r esponsibilit

y, he re Furne s, decision -making autho rity over wheth er the child lives ou tside Norway. Specific ally, § 43 provides that both pa rents m ust consent to the child m oving abroad, as follow s: Moving abr oad with the child If on e of the pa

rents has s ole paren

tal respon sibility , the oth e r parent may not object to the c hild moving abroad. If the pa ren ts have joint parental responsibility, both of the m m ust consent to the child moving a broad. If the parents disagree as to who shal l have parental responsibility or with whom

the child sh all live perm anently , the chil d must n ot move abroad unti l the m atter has been deci ded. Id. § 43 (emphasis added). Consequently, P laintiff Furnes’s joint parental responsibility effectively gave him the right, generally referr ed to as a “ ne exeat ” right, to d etermine whether J essica can l ive outs ide of Norway with h er mother. C. Re moval During the evidentiary hearing, Plaintiff Furnes introduced a Bergen police report sum

mari zing how the

rem oval of Jes sica to the United St ates occu

rred and his subseque nt effort s to locate his daughter . Furne s also testi fied about these events. T he distric t court fou

nd that Fur

nes’s te stimon

y wa s credible , that the2 We note that Defendant Reeves’s account of these facts is substantially differ ent from Plaintiff Furnes’s, but the district court did not credit her account. 10 police report accurately sum marized his efforts to locate his daughter, and that Furnes did not acquies ce in the r emoval of Jessic a to the U nited Stat es. 2 In May of 2001, D efendant Reeves a pproached

Plaintif f Furnes a nd requested a modification to the access schedule. She proposed that Jessica stay with Furn es for a l onger per iod than sche duled in May 2001 and in the

fall of 20 01 in exchange

for Furne s’s consent to Jessic a spending th e entire summ er in the United States with Reeves. According to Furnes, Reeves explained that her brother was getting mar

ried in the

United St ates, an d Reeves w anted to ta ke Jessica

to spend the summer of 2001 with her fa mily. Furnes agreed, with the clear expectati on that J essica woul d return to start scho ol in Norway in th e Fall of 200 1. According to Furne s, Def endant Reeves neither

returned nor contac ted him

to inform him of her whereab outs. Plaintiff Furnes presented e vidence tha t, when R eeves failed to contact him at the end o f the sum

mer 2001, he be gan cease less eff orts to loca

te Defendant Reeves and Jessica, at fi rst in Berge n and Oslo and then i n the Unite d States. He first tried calling an d writing t o Reeves at h er home in Bergen, wi th no resp onse. He then c ontacted R

eeves’ s landlord, who infor med him that

she had m

oved to11

Oslo. Furne s the n con tacte d the local post offic e and w as in formed t hat Re eves’s mail was being forwar

ded to her s ister’ s address in Oslo. L ater in the fall of 20 01, Furnes m ade num erous tele

phone calls to Reeves ’s siste r in Oslo, who prom ised to pass the m

essages on to Reeves. When R eeves fa iled to ret urn any of the ca lls, Furnes co ntacted R

eeves’ s sister’ s husband at h is place of business and

begged him to tell Pla intiff Fur nes where Reeves was, but Reeves’ s sister’ s husband deni ed any knowledg e of Reeves’s whe reabouts

. On March 25, 2002, Plaintiff Furnes filed a police report at the Bergen Police Station, which summarized his above efforts to locate his daughter. He was ultima tely t old by N orwegia

n authoriti es that De fendant Reeves pro bably w as not in Oslo and that there was little els e they could d o to locat e Reeves or Je ssica. On March 27, 2002, Fur

nes filed a

petition fo r the ret

urn of his da

ughter wi th the Norweg ian Ministr

y of Jus tice, w

ho helped Fu

rnes in his a

ttemp ts to locate

his daughter. Plaintif

f Furnes t hen began se arching f

or Reeve s and Jessic a in the United St ates. In August 2002, Plaintif f Furnes t raveled t o Tam

pa, Flor ida and Atlanta, Georgia , where

he had bee n informed that Re eves might be living , to search for Ree ves and Je ssica. D. ICA RA Pe tition3 Hague Convention on the Civil Aspects of I nternational Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89, reprinte d in 51 Fed.Reg. 10,494 (1986). For an ove rview of the structure and implementation of the Hague Conve ntion and a list of many law re view articles about the Hague Convention, see Linda Silberman, Hague I nternational Child Abduction Convention: A Progress Report , 57 La w & Conte

mp. Probs. 209 (1994). 12 On Novem

ber 4, 2002 , Plainti ff Furne s filed a P etition for Return of

Child to Petitioner under ICARA in the district court in Atlanta, Georgia. Furnes’s ICARA petition alleged that Defendant Reeves wrongfully rem oved Jessica from Norway in violation o f Furnes’ s joint cu stody r ights and sough

t her ret urn pursuan

t to Article 12 of the H ague Conve ntion on the C ivil Aspec ts of Inter national C hild Abduction 3 (the “Hague Conv ention” o r “Convention ”) and 42 U.S.C. § 1 1603(b). After a n evidentia

ry hea ring, the district c ourt conclu ded that D efendant Reeves’ s rem oval of Jes sica from Norway violated P laintiff Furnes’ s rights to hi s daughter under Norwegian law. The district court further found (1) that Plaintiff Furnes w as a cre dible witn ess, (2) that Furne s had not ac quiesced in Defenda nt Reeves’ s rem oval of Jes sica from Norway , (3) tha

t Furnes had been unabl e to locate Re eves and Je ssica for many months after th e rem oval, and (4) that hi s ICARA petition had been timely filed within one year of rem oval, in accordance with the Hagu e Convent ion. The distr ict court, however , conclude d that Plai ntiff Fur nes was e xercising mere access rights coupled with a ne exeat right under

Norweg ian law – not4 This rulin g was e ntered by th e Berg en City “Recor der,” w hich the p arties a

dvise us is

a judge o n the Be

rgen Ci ty c ourt. 13 custody rights – over Jessica at the time of rem oval. On that basis, the district court dec ided that it

was not au

thorized t o order the

return of the child pu

rsuant to the Conve ntion an d ICARA, and den ied the pet ition. On Marc h 7, 2003, P laintiff Furnes soug ht a clar ification of his right s from the Bergen City Recorde r on an ex pa rte basis. 4 On March 11, 2003, the Bergen City Recorder issued a ruling discussing § 30 and § 35b of the Norwegian Children Act and clarifying that Defendant Reeves’ s emigration with her daughter violated Furnes’ s “ri ght of codet ermi nation wit

h regard t o the child, ” as follow s: The legal point

of departure is that, pur suant to thesettlement in cour t of February 28 2001, the

parties sh all have j oint legal custody of the child. That entails tha

t, pursua nt to sectio n 30 of the N orwegia n Children Act, the parties shall jointly ma ke all of the necessary deci sions about the chil d’s circum stances, in which th e child her self is una ble to take par t because of her maturity, e tc. According to an express provisio n of section 43, paragraph 1 of t

h e Childre n Act, both parties must agree bef ore the chi ld c an e migra te fr om Nor way. According to the settlement in court, the defendant, Pam ela Kay Reeves, shall have

the daily care an d c ontrol of th e parties ’ join t child. Pursuant to section 35b of the Chil dren Act , this enta ils the author

ity to make decisions a

bout the chil d’s dail

y cir cumst ances, including m

oving within the bo r ders of N orway . This a uthority does not inc lude emigr ating abroad with the c hild. According to the documents of the case, the court presum es that Pame laKay Reeves did not ask for the pl aintiff’ s consent be fore she emigrated with the ch ild to th e USA in 2001. Th e em igration w ith the14

child was t hereb y in viol ation of [T om] A. Fur nes’s r ight of codeterm ination wi th regard

to the child

. This rulin g indicate d that, pur suant to § 30, Furnes an d Reeves “ shall jointly m ake all of the necessar

y deci sions about th e child’ s circum stances, ” and that p ursuant to § 35b, Ree ves had “

the authori ty to m

ake decis ions about the

child’s daily circum stances, including m oving within

the border s of Norw ay,” but not to emigrate abroad with the chi ld. Plaintiff Furnes then filed a motion for reconsideration with the federal district court on the basis of the Bergen City Recorder’s ruling. T he district court denied th e motion. II. STANDARDOF REVIEW “We r eview the district court’s factual findings for clear error and its legal conclusions de novo .” Lops v. L ops , 140 F.3 d 927, 935 n. 6 (11th Cir . 1998) (citation omitted). III. DISCUSSION Plaintiff Furnes se eks retur

n of his daugh

ter to Nor way pursuant to t

he Hague Conv ention, as adopted i n the Unite d States in ICARA. See 42 U.S.C. §§ 11601-11611 . The pa ramount issu e in th is cas e is wh ether Plain tiff F urnes ’s rights to his daughter un der Norw egian law are the t ype of rights that

entitle him

to15

the re turn of his child unde r the e xpres s terms o f the Ha gue Co nven tion . We conclude that they are. In so doing, we firs t review the term s and purpose s of the H ague Conv enti on. We th en ana lyze the exten t and natu re of Pl aint iff Fu rnes’s Norweg ian la w righ ts, pl ace th em in the framework of the Hague Conv enti on’s terms, and expla in why Plainti ff Furnes is entitled to return o f Jessica to Norway. Finally , we address De fendant Reeves’ s two aff irma tive defe nses. A. Pu rpose of t he Hague Convent ion The Hag ue Conventi on was cr

eated in 19 80 with thestated pur pose “ to protect children internationally from the harm ful effects of their wrongful rem oval or retent ion and to es tablish proc edures to ensure their prom pt return to the State

of their habitual residence, as well as to secure protection for rights of access.” Convention, intro. T

he HagueConvention s pecifies that its obj ects are : “a) to secure th e prom

pt return o f childre n wrongful ly re moved to or retained in any Contracting State; and b) to en sure that r ights of cus tody an d of acce ss under the law of one

Contract ing State a

re effe ctively

respecte d in the othe r Contrac ting States.” Con vention , Art. 1. To effe ct these general goa ls, Articles 3, 5, 12, an d 13 of the H ague Convention together establish the remedy of return of a child to his or her country5 In thi s rega rd, Artic le 12 prov

ides in re levant pa

rt: Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the procee di ngs before the judicial or administrative authority of the Contra

cting Sta te where the child is, a period of

less thanone yea

r has elapsed from the date of the wrong ful removal or retention, the authority conce

rned shall order the return of the child forthwith. The judicial or administrative authority, eve n where the proceedings have been commenced after the expiration of one y ear referred to in the prec e d ing paragraph, shallalso order the return of the child, unless it is demonstrated that the child is now settled

in its new e

nvironme nt. Convention, Art. 12 (emphasis added). 16 of habitual

residenc e and set f

orth the circum stances und er which the retur n rem edy is available. Convention, Arts. 3, 5, 12, 13. The Convention is designed to restore the pre-abduction status quo and to deter parents from crossing international borders in search of a more sympatheti c forum. Lops , 140 F.3 d at 936 (ci ting Friedrich v. Friedrich , 78 F.3d 1060, 1064 (6th Cir. 1996)). B. Hague Convention’s Retur n Remedy Article 12 of the H ague Conve ntion establ ishes the general rul e that a c hild who has been “w

rongfully rem oved or re tained” w ithin the m eaning of t

he Convention sh all be re turned unless more than a y ear has e lapsed betw een the

remo val and thedate of c ommencem ent of the p roceeding s and the child has becom e settled. Convention, Art. 12 ; see 42 U.S. C. § 11601. 5 Article 3 of the H ague Conve ntion outline s the conduc t that is “ wrongful” for purposes of Article 12. Pursuant to Article 3, the rem oval or retention of a17

child is wrongful if it violates the “rights of custody” of another person, either jointly or alone, and those “

rights of c ustody”

were a ctually

being exer

cised at th e time of the rem

oval or retention or would have been exercised absent the removal or retent ion. Conve ntion, Ar

t. 3. A rticle 3 pr ovides: The rem oval or the

retention of a child is to be cons id ered wr ongf ul where – a) it is in breach of rights of c ustody attributed to a person , an instit ution or any other

body, either jointly

or alone , under th e law of the State in which the child

was habit

ually r esident im

media tely be fore theremoval or retent ion; and b) a t the ti me of

rem oval or re tention those rights we re actually exercise d, either j ointly

or alone, or would

have been so exerci sed but for the rem oval or re tention. Id. (em phasis adde d); see Lops , 140 F.3d at 935. The Hague Convention does not include an exhaustive list of rights that constitute “righ

ts of custod

y.” Howeve r, Art

icle 5 does distinguish be tween “ rights of custody

” and “rights of a ccess” a s follows: a) “r i ghts of custody” shall include rights rel ating to thecare of the person of the chil dand, in particular, the righ t to d etermin e the c hild ’s place of residence ; b) “rights of access” shall include the right to take a child for a l imi ted period of time to a place ot her than th e child’s hab itual resi dence. Convention, Art. 5 (emphasis added). A ccordingly, “rights of custody” is a term expressly defined

in the Convention. In A meri can court s, we tend to think of custody rights primarily

in the sense of physical custody of the chil d. However, in6 Article 13 provides for certain other narr ow exceptions to the mandatory-r eturn rule, none of which is implicated here. 18 applying the Hag

ue Conventi on, we m

ust look to the

definition

of “r ights of custody ” set for

th in the Con

vention and n ot allow ou r somewhat diff

erent American concept s of custo dy to cloud o ur applica tion of th e Convent ion’s terms. Specific ally, in this case

we m ust think of “

rights of c ustody”

as includin g “ri ghts relating t o the care

of the per son of the c hild,” an d in partic ular, “ the right to determine the child’s place of re sidence.” Id

. Further, Article

13 of the Co nvention set s forth ce rtain nar row exce ptions to Article 12's mandatory -return rule. Under Article 13, a c ourt is not bound to order the child’ s return if

the person

opposing the r

eturn esta blishes that

“theperson, institution or

other body

having the c are of th e person of the child w as not actu ally exercising the custody rights at the time of rem oval or retention, or had consented to or subsequ ently acquiesced in the rem

oval or re tention . . . .” C onvention, Article 13(a). 6 In sum, the Hague Convention provides that the removal or detention of a child from his or her State of habitual residence is wrongful if the petitioner establishes by a preponderance of the evidence that: (1) the child has been removed or retained in violat

ion of the pe titioner’ s “ri ghts of custody,” i.e., “rig hts relating7 “The rights of custody . . . may arise in pa

rticular by ope

ration of law or by

reason of a judicial or administrative decision, or by r eason of an agreement ha ving legal effect unde

r the law of that State.” Convention, Art. 3.

8 There are two other available a ffirmative defenses to the respondent that are not a t issue in this case. Return is not required if the respondent establishes by clear and convincing evidence that (1) “there is a g rave risk that his or her return would expose the child to physical or psycholog ical har

m or other

wise plac e the chi ld in an into lerable situation, ” Convent

ion, Art. 13(b); or (2) the return of the child “would not be permitted by the fundamental principles of the requested State relating to the protection of human rig hts and fundamental freedoms,” id. Art. 20. 42 U.S.C. § 11603(e)(2)(A). See infra note 19 ; see also Ostevoll v . Ostevoll , 2000 WL 1611123 at 11 (S.D. Ohio 2000). 19 to the care of the pe rson of the child and, in particular, the right to det ermi

ne the child’s place of residence,” either jointly or alone; and (2) “at the tim e of removal or retent ion those ri ghts were

actually exercise d, either

jointly or alone, or would have been s o exercis ed but for t he removal or re tention.” Convention, Arts. 3 , 5; 42 U.S. C. § 11603( e)(1)(A ); see Lops , 140 F.3 d at 936. 7 Once the petitioner satisfies this burden, the child must be returned to her State of habitual residence unless the r

espondent e stablishes one of thes e affir mativ e defense s: (1) that

the petition fo r return was file d more than one y ear fro m the remo val or re tention and the child is well-set tled in he r new enviro nment, or (2) that t he petitioner “w as not actually exercising the custody rights at the tim e of the removal or retention, or had consented t o or subsequently ac quiesced in the rem oval or re tention.”

Convention, Arts. 12, 13; 42 U.S.C. § 11603(e)(2)(B)

. 8 C. Fu rnes’s N orwegian Law Ri ghts Und er §§ 30 and 35b9 Plaintiff Furnes had visitation or access rights under the A greement. The parties ag ree that the Convention distinguishes between “rights of custody ” and “rights of access” a nd provides the return remedy only for violations of rig hts of custody. Accor

dingly, Plaintiff Furnes’s rights of access, a lthough valuable, do not help him here.

20 The para mount i ssue in this c ase is whe ther Pla intiff Fur nes’s r ights to his daughter un der Norw egian law are “ rights of c ustody, ” as defined under th e Hague Convention. The par

ties agre e that Jess ica was a habitual resident o f Norw ay fr

om her birth in 1996 until immediately before her removal in 2001, and that Plaintiff Furnes ha d certain

parental rights wit

h regard t o Jessica. Howeve r, they dispute whether Furnes’s rights under Norwegian law, either individually or together, are “righ ts of custod

y,” as define d under the Hague Con vention. T

he Conventi on defines “ rights of c ustody”

to include “

rights rel ating to thecare of the person

of the child and, in particular, the right to determine the child’s place of residence.” Convention, Art. 5(a). Thus, the question becom es whether Furnes’s rights under Norwegian law a re “rights relati ng to the care of the per son of th e child.” 9 The Agreement provided that Furnes shall have “joint parental responsibility” over Jessica, and the Norwegian Children Act provides what parental rights are

conferred by “

joint parental responsibility .” How ever, th e parties dispute the proper characterization of the rights attendant to “joint parental responsibil ity” un der Norw egian law . Plaint iff Furn es argues that § 30 and § 43 of21

the Child ren Act prov ide him with rig hts of cus tody as define d by the Conve ntion. We addr ess each s ection. Section 30 of the Nor

wegian C hildren A ct establi shes general rights a nd duties of a

person wh o has pare ntal respo nsibility , including “ the right

and the duty to make decisions for the child in personal matters .” Childr en Act, § 30 (em

phasis added). The Nor

wegian C hildren A ct does not d efine fur ther “ decisions f

or the child in per sonal m atters. ” We be lieve that the right “

to make decisions for the child in personal matters” necessarily embraces a broad range of personal decisions, such as decisions regarding the personal care, protection, maintenance, and finances of the child. Further, the child’s care w ould include everyday decision s about t he child’s s helter, foo d, clothin g, educatio n, and medical ne eds. However, this broad decision-making power granted persons with parental responsibil ity is l imite d by § 35b, which pro vides: If the p arents have joint parental responsibility, but the child lives perm anently

wit h o nl y on e of

th em, the other p arent may not object t o the parent with whom

the child lives ma

king decisions concerning impor tant aspects of the child’s care , such as the questio n of wheth er the chi ld shall attend a day -care c entre, w

here in Norway the child shall live and other major decisions concerning everyday life.10 If th e realm o f “deci sions for the child in personal matters” in § 30 ( grante d parent s with joint parental responsibility) did not encompass the c are of the child, then there would be no need for § 35b to limit the rights of a parent with joint responsibility in the cir cumstances where the child lives permanently with one pa rent with joint parental responsibility. This furthers our conclusion that the right “to make decisions for the child in personal matters” encompasses decision-making authority over the child’s care.

22 Children Act, § 35b (emphasis added). 10 Section 35b’s provision that Plaintiff Furnes ca nnot objec t to Defendant Reev es ma king decisio ns concer

ning “import ant aspects of the child’ s care” clearly

subsume s a me asure of h is authorit y to m ake “decisions for the child in personal matters” gra nted under § 30. The question then is whether any of his § 30 rights survives the application of § 35b. We believe that they do

. It is a fun dame ntal rule o f statutor y inter pretation that, wi thin an act , the same words have th e same meanings and d ifferent word s have diff erent meanings

. See United States v. Gonzales , 520 U. S. 1, 5, 117 S. Ct. 1032, 1035 ( 1997) (“W here Congr

ess include s particul ar langua ge in one se ction of a s tatute but o mits it in anothe r section o f the sam e Act, it is gener

ally pr esume d that Congress acts intentional ly and p urposely in the dispa

rate incl usion or exc lusion.”) (quoting Russello v. United States , 464 U.S. 16, 23, 104 S. Ct. 296, 300 (1983)) (internal quotation m

arks om itted); Iraola &CIA, S .A. v. Kim berly -Clark C orp. , 232 F.3 d 854, 859 (11 th Cir. 20 00). Thi s presum ption is no le ss com

pelling where the legislatio n is foreig

n, as we assum e that the same

logical pr

inciples gov erning23

Congress also guide the Norwegian legislature. Indeed, no party in this case has argued ot herwise. Because the language granting authority to Plaintiff Furnes in § 30 differs from the lim iting language of § 35, we m ust presum

e that the differe nce is intentional

rather t han accid ental. T

he Norw egian legi slature e asily could have specifie d in § 35b that the other p arent could not obje ct to the pa rent wit h whom the child lives ma

king “d ecisions f

or the chil d in personal mat ters.” Had the legislatur e electe d to use the l anguage of § 30 in § 35b, it would ha ve entire ly negated F urnes’s right to m ake “ decisions f

or the chil d in personal mat ters,” as his child lives permanently with her m other. Because it did not, we conclude: (1) that the paren t with who m the child does no t reside r etains the joint rig ht to ma ke certain “ decisions f

or the chil d in personal mat ters”; ( 2) that the

realm of “d ecisions for the c hild in pers onal m atters” in § 30 encom passes the child’s care and is broad er tha n and exten ds be yond th ose “con cerni ng impo rtant aspec ts of t he chi ld’s

car e” i n § 35 b; (3) th at F urn es i s t her efo re e mpo wer ed b y § 3 0 t o mak e so me decisions th at affe ct personal mat ters, inc luding som e decisions that aff ect the child’s care, but do not concern “im portant aspects of the child’s care”; and (4) that

some o f those re tained “ decisions f or the chil d in personal mat ters” fall within t

he11 Our analysis above is based on our view that “decisions for the child in personal matters” encompass more than just the child’s care. Howe ver, even assuming that “decisions for the child in personal matters” is the functional equivalent of decisions reg arding “aspects of the child’s c are,” w e note tha t § 35b exclu

des only “importa nt aspec ts of the c

hild’s ca re,” not all aspects of the child’s care. Thus, Plaintiff Furnes would retain rights regarding some aspects of the child’s care under either interpre tation. 24 ambit of decisio ns relatin g to the “ care of the person of the chil d” within t he

mean ing of Art

icle 5 of t he Conventi on. 11 Accordingly, we dete rmine that § 30 alo ne ma

y we ll grant P laintiff Furnes a “right of custody” as defined under the Convention. Our ultim ate decision that Plaintiff Furnes ha s such right s of custody , however, need n ot, and thus does not, depend who lly on th is determ ination. A s explained

below, F urnes’s ne exeat right under § 43 of

the Norw egian Chil dren Act grants Fur

nes the subst antive rig

ht (alb eit a joi nt r igh t) t o de termi ne wh eth er th e ch ild liv es wi thi n or out sid e Nor way, and thus the right to determine join tly with Reeves t he child’s p lace of resid ence. We conc lude that th is ne exeat righ t in § 43, es pecia lly in t he con text of Fur nes’s retained rights under

§ 30, constitutes a “

right of cu stody”as define d in the Convent ion. D. Fu rnes’s Ne Exeat

Right U nder § 43 Section 43 of the Nor

wegian C hildren A ct provides that if bot h parents h ave joint parental responsibility, both of them m ust consent to the child leaving Norway and living ab road. W e conclude that this ne exeat

right gran

ts Plaintif f Furnes a25

right of cu stody und er the H ague Conve ntion. Ou r conclusi on turns on the definition of “r

ights of cus tody” in the Conven tion, but it

is further supported by the history and purposes of the Convention and the decisions of courts in our sister signato ries. Article 5 of the H ague Conve ntion define s “ri ghts of cust ody” to include “righ ts relating to the ca

re of theperson of t

he child an d, in part

icular, the right t o determ ine the chi ld’s pla ce of re sidence. ” Conventi on, Art. 5. The q uestion, t hen, is whether the ne exeat

right am ounts to “the right to determ ine the chi ld’s pla ce of residenc e.” W e conclude that it does

. In analy zing whet her a parent has cus todial righ ts under the

Hague Convention, it is crucial to note that the violation of a single custody right suffices to make rem oval of a c hild wrongf ul. Tha t is, a pa rent need not have “ custody ” of the child to be entitled to return of his child under the Convention; rather, he need only have one right of custody. Further, he need not have a sole or even primary right of cu stody. Article

3 of the Con

vention spec ifies that

the rem oval or re tention of a child i s wrongful

if it is in b reach of

“rig hts of custo dy attr

ibuted to a p erson

. . . either j ointly o r alone .” Id. Art. 3( a) (em phasis adde d). Ac cordingly , if Plain tiff F urnes share s with Defend ant Re eves a joint righ t to d etermin e Jess ica’s place of r esidence, he has a r

ight of cust ody unde r the Ha gue Convention.26

Under N orwegia

n law, t he right to d eterm

ine the chi ld’s pla ce of re sidence is divided, with different rules governing the decision of where to live within Norway on the one hand and the decision to live outside Norway on the other . Defendant Reeves is entitled to decide where Jessica will live within the borders of Norway and Plaintiff Furn es cannot ob ject. Consequently, F urnes has no authority to decide, for example, whether Jessica will live in the city or the country , in Bergen or Oslo, with her mother alone or with her extended family, so long as Jessica resides within

Norway. Plaintiff Furnes doe s, however, have t he right to d ecide wh ether or not Jessica c an mov e outside N orway with her mothe r, and thereby h as the jo int right to decide whether Jess ica’s place of re sidence wil l be outs ide or with in Norway. The Convention does not explicitly define the term “ place of residence.” In light of the

context of

the Hague

Convention, we belie ve that the right to det ermi

ne whether the child lives within

or outside N orway

constitute s a right to determ ine the child’s place of residence. The Ha gue Convention was designed to provide a remedy not for whether Jessica should live in Bergen or Oslo within Norway (Reeves ’s right

), but for whether Reeves sh ould be able

to take Jes sica acr

oss international borders. Thus, in our view, the only logical construction of the term “plac e of resi dence” in

the Convent

ion would ne cessaril

y enco mpass decisions27

reg ard ing whet her Jes sic a may li ve o uts ide of No rway. T her efo re, wh at co unt ry a child lives in, as oppo sed to wha t city or house w ithin Norw ay, constitutes a right to determ ine a child ’s plac e of resi dence unde r Artic le 5 of the Convention a nd thus a right

of custody

under the C onvention. Given tha t the goal of

the Hague Convention is to deter international abduction, we readily interpret the ne exeat right as inc luding the r

ight to dete rmine

the child’ s place of

residenc e because

the ne exeat right provi des a parent with dec ision-m aking author ity re garding the child’s internati onal reloc ation. Moreover , even as suming that the ch ild’s “ place of r esidence” narrowl y refers to the part

icular hous e in which

the child lives, Plaintiff Fur nes never theless shares with Defendant Reeves the right to determine Jessica’ s place of residence outside of N orway . Plaint iff Furn es enjoy s the powe r not only to deny consent to Jessica’ s movin g abroad, but also the power to grant

consent subject to whatever conditions he chooses. For example, Furnes c ould consent to Jessica’s removal from Norway on the condit

ion that he r

eceive gr eater vis itation rig

hts, or tha

t she live in a pa

rticular city o r near a

particula r airport , or even

on the condit

ion that she live in a particular house in the United States. Thus, although § 43 of the Children Act does n ot explicitly prov ide Furne s with the right to det ermi ne Jessica ’s spec ific place of r esidence, he effe ctively

has that au

thority (jointly with De fendant Reeves)28

where R eeves see ks to rem

ove Jessica

from Norway . Furne s’s righ

t to determ

ine Jessica’s pl ace of reside nce outsi de Norway is equal to that of Defendant Ree ves. Under the se circum stances, we concl ude that N orwegia

n law prov ides Furne s and Reeves with a joint righ t to determine J essica’s pla ce of residen ce. The fact that Plaintiff Fu rnes does not share i n one aspe ct of that ri ght (i.e., the right to determine Jessica’s place of re sidence within Norway) does not affec t this conclus ion. Just a s there is no require ment i n the Conven

tion that a custody right be ex ercised e xclusively by the parent se eking retur n, there is no requir

emen t that the ri ght be exer

cised pre domina

ntly by that pare nt. Plaintiff Fur nes ma intains under Norwegian law a right to determine the place of Jessica’s residence, irrespective of whether he exercises that right to a greater, lesser, or equal extent as does Defend ant Reeves. Further, even if P laintiff Furnes’ s ne exeat rig ht i s (we bel iev e in cor rect ly) viewed a s a mere “ veto right” or limitation on D efendant Reeves’ s right to determine Jessica’s place of residence, we nevertheless believe that the ne exeat right under

Norweg ian law i s a right of custody under the C onvention. The right to determ ine the pla ce of the child’s residenc e is just o ne exam ple of a c ustody r

ight under the H ague Conve ntion. More generally, rights of c ustody include righ ts “relating to the care of the person of the child.” Convention, Art. 5. The ne exeat29

right under

Norweg ian law c ertainly establishe s a right, no mat ter how m

inimally or expansiv ely tha

t right is de fined, to affect the child’ s place of

residenc e. As th e Convention’ s definitio n of “ rights of c ustody” impli citly acknowle dges, the deter minati on of

the ch ild’s place of res iden ce is a cruci al asp ect of the ch ild’s

care. Thus, ev en assum

ing arguendo that Plaintiff Fur nes does not h ave the ri ght to determ ine Jessica’ s place of

residenc e, he has at the ver y lea st a veto r

ight relating to the determination of her place of residence – that is, a r ight “relating to the care of the person” of Jessica. Convention, Art. 5. As such, the ne exeat right in § 43 provides Fu

rnes with a right of custody over Jessi ca as def

ined by the Hague Convent ion. Finally , Plainti ff Furne s’s ne exeat right endow s him w ith signific ant decision-m

aking author

ity ove r the child ’s care. By requiring that Jessic a rem ain in Norwa y, F urnes can

ensure tha

t Jessica will speak N orwegia n, partic ipate in Norwegian culture, enroll in the Norwegian school system , and have Norwegian friends. That is, Plaintif

f Furnes e ffective ly ca

n decide th at Jessica

will be Norwegian . The right to determine a c hild’s language, nationality, and cultural identity is plainly a right “ relating t o the care

of the per son of the c hild” with in the meaning of the C onventi on. E. Stat ed Pur pose of Ha gue Conv ention12 As the re port cont aining t he offic ial histor

y a nd commen

tary of the Con

vention st ates, “the inte ntion [of the

Conventio n] is to prote ct all the ways in which c ustody of children ca

n be exercised,” and the Convention favors “a flexible interpretation of the ter ms used, which allows the greatest possible number of cases to be br ought into consideration.” Elisa Pérez-Vera, Explanator

y Re port: Hag ue Confe rence on Private

Inte rnationa l Law , in 3 Acts a

nd Docume

nts of the Fourteenth Session (Child Abduction) 426, 446-47, ¶¶ 71, 67 (1981) . These considerations do not allow us to order return of a child simply for violations of access rights, no matter how egre gious. T

hey do, howev er, milita

te in fav or of a r

ule allow ing for the most appropriate and effective mea ns of enforcement of existing rights of custody consistent with the terms of the Hague Convention. 30 Our conc lusion here

is consiste nt with the

history and stated

purposes of

the Convention. As noted pr eviously , the sta

ted purpose

of the Hague Convention is “to pr otect chil dren inter

nationally

from the harm ful effe cts of their wrongf ul

remo val or re tention and to establish procedure s to ensure their prom

pt return to the State of their h abitual re sidence, as well a s to secure protectio n for their

rights of acces s.” Convention, intr o. The C onvention fu

rther sta tes that it s object s include ens uring “ that rights of custody and of acc ess under t

he law of one Contracting State are effectively r espected in other Contracting States.” Convention, Art. 1(b). 12 This Cour

t previously

has em phasized th at “[ t]he H ague Conve ntion is intended to ‘ restore t

he pre-a bduction sta

tus quo and to d eter parents from crossing borders in search of a more sy mpathetic court.’” Lops , 140 F.3 d at 936 (ci ting Friedrich , 78 F.3d

at 1064). In this ca se, the C onvention’ s purposes a re serve d by ordering return of Je ssica to No rway. Plaintiff Furnes and Defendant Reeves31

maint ain “

joint parental responsibility” under N orwegia n law. W hile Def endant Reeves has primary

physical custody and more decision-making authority than Furnes, Furnes nonetheless maintains joint parental rights under Norwegian law with regard to the care of his child. Furnes even has the right to determine w hether Reeves can move Jessica’ s residence from Norw ay to the United States. Under these cir cumst ances, s ending the c hild back to Norway best respe cts the par

ties’ rights u nder Norwegi an law and th e Hague Conv ention. A retur n order ef fectivel y m aintains th e status quo with rega rd to custody

of Jessica. A return order will not effect a c hange in custody (as Defendant Reeves argues) b ecause sh e is free to accom pany her child bac k to Norw ay and retain custody . Indeed , upon ret urn to Nor

way, Defenda

nt Reeves can seek a

change in the Agreement to allow her to m ove with Jessica to the United States. On the other hand, the denial of P laintiff Furnes’ s ICARA petition w ould allow Defenda nt Reeves to nullify

the Agre emen

t approved b y the N orwegia n Gulating Court of Appeals a nd to usurp Fu

rnes’s Norweg ian law r

ights to car

e for his c hild. The specific purpose of the Hague Convention w as to deter and am end the exa ct type of abductio n in this case, not to bless it.32

F. International Cases The Unit ed States Supreme Court ha s establish ed that in in terpreting the language of

treatie s, “ we find th e opinions of our sister signatorie s to be entit

led to considerable weight.” Air Fra nce v. Sa ks , 470 U. S. 392, 4 04, 105 S. Ct. 1338, 1345 (1985) ( internal q

uotation marks and c itations om itted). Although the decisions of

foreign c ourts are

not essenti al to our an alysis , our re asoning and conclusions are in harmony with the m ajority of the courts of our sister signatories that have addressed this treat y issue. Specific ally, courts in th e United K ingdom, Australi a, South A frica, and Israel have adopted a broad view of “rights of custody ,” and ordered return under the Hague Convention where a child is removed in violation of a ne exeat right. Those cour

ts have stressed the n eed for e nforcem ent of cust ody ord ers (incl uding ne exeat clauses) , the spir

it of the C onvention, and the desi rability of uniform

ity in ordering the return of children removed in violation of a ne exeat provisi on. See C. v. C. , 1 W.L.R . 654, 658 (Eng. C.A. 1989) (holding that a ne exeat right provided the fathe r with a m

easure of control ove r the child ’s plac e of resi dence suf ficient t o create a right of custody

under the H ague Conve ntion); In the Mar riage of: Jose Garcia Resina A ppellant/H

usband and Mu

riel Ghi slaine Henriette R esina Respondent/Wife , [No. 52] (1991) (Austl. Fa m.),¶ 26 (adopting the approach of C.33

v. C. based on (1 ) the desir ability of uniform

ity am ong com mon la w countri es, and (2) its view that return of a child removed in violation of a ne exeat order is t he “result which is in conform ity with the spirit of the Convention which is to ensure that childr

en who are taken fr

om onecountry

to another

wrongful ly, in the senseof breach of court orders or under stood legal rights, a re prom ptly r eturned to their country so that their future can properly be deter mined within that society”); Sonderup v. Tondelli , 2000(1) Constitution al Court of South Afr

ica 1171, ¶ 25 (CC) (holding that the mother, who had custody under a B ritish Colombia order, was eff ectively entitled to exercise

her custod

y right s only in

British C olombia (save an a uthorized p eriod), and her f ailure to r eturn the c hild to Brit

ish Colom

bia as required under the order was a breach of the conditions of her custody as well as the father’s ri ghts); C.C. (T.A.) 2 898/92 , Foxman v. Foxm an ,1992 (H.C.) (Isr.) (concludin g that the term “ custodial r ights” under

the Hague

Convention s hould be broadly construed to include c ases in wh ich paren tal consent

is require d to remove a child fro m the country of resi dence). The Eng li sh Cou rt o f Ap pea l h as a ls o s ug ges ted th at u nd er s ome circumstances a court entering the custody order in the child’s country of habitual residenc e ma

y itse lf have cu stody r

ights that a

re violate d by the

rem oval of the child with out the co urt’s consen t. B. v. B. , 3 W. L.R. 865 (Eng. C.A. 1993). A ll34

E.R. 1 44 ( C.A.) (Eng .) (n oti ng t hat und er Ar tic le 3 an “in sti tut ion or o the r bo dy” may hold c usto dy righ ts, an d det erminin g tha t remova l of th e chil d from a co urt’s jurisdiction could violate the court’s custody rights). We ac knowledgethat fore ign courts ha ve not unanim

ously a greed wi th our decision he re. Ca

nadian and F rench cour

ts have taken the opposi te position, concluding that removal of a child in violation of a ne exeat right does n ot constitute wrongful remo val under t he HagueConvention. Howeve r, the de cisions of the Eng lish, Aus tralian, South Afr ican, an d Israeli

courts cit ed above resonate more richly

than those of the French and Canadian courts, due to their more persuasive reasoning as well as their stronger numbers. Indeed, the Ca nadian Supreme Court’s suggestion on two occasions that a ne exeat right falls short of a custody righ t has been d icta both times. Thom son v. Thom son , [1994] 3 S.C.R. 551 (Can.) (ordering return of a child based on violation of a ne exeat clause in an interim custody order to preserve jurisdiction in the Scottish court for a final determ ination, bu

t noting in dic ta that the

return remed

y woul d be unavail able in the context

of a fina l order be cause thepurpose of such an order was sim ply to protect a ccess rig

hts); D.S. v. V.W. [1996] 2 S.C.R . 108 (Ca n.) (hold ing that a return remedy

was not av ailable f

or violatio n of an im

plicit re moval

restric tion, and stating in di cta that su ch a violat ion would co ncern only

access r ights, not custody13 We note tha t the Fre nch cour t’s decis ion has be en corr ectly criticize d by

the disse nt in the Second Circuit case of Croll v. Cro ll , 229 F.3d 133 (2d Cir. 2000). As noted by the Croll dissent, [D ]eciding a Hagu e Convent

ion case on the g round tha t the custo dial par

ent must remain free to expatriate her child begs the crucial interpr etative question of who, for purposes of the Con

vention, a re ‘cus todial pa

rents’ in the first place. Nothing in the Convention suggests that one parent’s rig ht to expatriate overrides another parent’s rightsof custody. On

the contrary , the paramount importance the Convention places on custodia

l rights s u gges t s that whe

re custo dial rig

hts and expa

triation r ights conflict, the latter must yield to the for mer. Id. at 152 (Sotomayor, J., dissenting). 35 rights). At least

one Frenc h court has refused to order re turn of chi ldren to the United Kingdom because it viewed the custody order requiring that the mother raise her children in England a

nd Wale s as an im

perm issible re striction o n the mother’s right to expatriat e. T.G.I. Periguex, Mar. 1 7, 1992, Ministere Public v. Mme. Y. , D.S . Jur. 19 92 (Fr.) . We view as m isguided the

French c ourt’s f

ocus on the mo ther’s right to exp atriate rather t han the issue s of custody set forth in the Hague Con

vention. 13 G. Other Circuits Our conc lusion today

diverges f

rom t hose of theSecond, Fourth, a nd Ninth Circuits. The sem

inal Unite d States C ircuit Cou rt case o n the issue i s Croll v. Croll , 229 F.3 d 133 (2d Cir . 2000). The Four th and Nint

h Circuits essential ly adopted the Croll majority’s reasoning, as did the di strict cou rt in this case. See Fawcet t v. McRo berts , 326 F.3d 49 1, 500 (4t h Cir. 2003 ), cert. denied 124 S.Ct.14 At le as t o ne st at e c ou rt ha s d et er mi ne d, as we do , t ha t c us to dy r ig ht s a re cr ea te d b y ne

exeat clauses. See Janakakis -Kostun v . Janakaki s , 6 S.W.3d 843 (Ky. Ct. App. 1999), cert. denied , 531 U.S. 811 (2000). 36 805 (2003); Gonzalez v. Gutierrez , 311 F.3d 942, 954 (9th Cir. 2002). We, however, join the p owerful Croll diss ent in disa greei ng wit h the majority’s conclusions. 14 We fir st review the fact s in Croll

. In Croll , Mrs. Croll re moved her daughter Christin a from Hong Kong to the United Stat es in vio lation o f her custo dy agreement with Mr. Cro ll. Croll , 229 F.3 d at 135. Mr . Croll f

iled an IC ARA pet

ition seeking Christina ’s retu rn to Hong Kong. Id . Under

their agreement, Mrs. Croll maintained sole “ custody , care , and control” of Christina, and Mr. Croll had a right of “r easonable access.” Id . The agreem ent also pr

ovided that C hristina “

not be rem

oved from

Hong Kong u

ntil she attains t he age of 18 years” without leave of cou rt or conse nt of the o ther parent

. Id . The di strict cou

rt conclude d that this ne exeat clause cr eated rig hts of custo dy under the C onvention

and grante d Mr. Croll’s pe tition. Id. at 136. In reversing, the Croll majority relied on three main conclusions: (1) that Mr. Croll’ s ne exeat

right is not a

right to det ermi

ne the chil d’s plac e of resi dence, b ut only a limitation on Mrs. Croll’ s right to determine the child’s place of residence; (2) that hi s ne exeat

right could

not be exer

cised absent rem oval; and ( 3) that the history and drafters’ intent of the Hague Convention supported the view that a ne37

exeatright is n ot custo dial. Id. at 137-143. Our cas e involves N orwegia n law and is di ffe ren t fr om Croll because P laintiff Furnes’ s ne exeat right must be considered in the conte xt of his add

itional dec ision-m aking rights by vir tue of his j oint “parental responsibility” under Norw egian law. In any event, we believe the Croll majority ’s analysis of the ne exeat right is fl awed for

several reasons. 1. Ne Exeat

Right Is N ot A Mere

Lim itation In reaching its view that the ne exeat right was only a limitation, the Croll maj ority relied in p art on how the particular agre emen

t in Croll gave Mrs. Croll the sole “ custody , care , and cont rol” of the

child, an d thus the sole

right to det ermi

ne Christin a’s place of resi dence withi n Hong Kong

. Id. at 139-40

. Howeve r, the Convention specifically provides that a custody right may be exercised either jointly or alon e. In this cas e, it is c lear that Plaintif f Furnes d

id not have t

he right to determ ine alone t

he place o f Jessica ’s resi dence. H owever, neither di d Defend ant Reeves. Rather, Furnes and Reeves each possessed elements of that place-ofresidence right, which they exercised j ointly. This fact is unchanged by the Croll majority ’s naked characterization of a ne exeat right as a “lim itation” on the right of the sole

custodial p arent ra

ther than a

n independe nt right of t

he otherw ise noncustodial pa

rent. Indeed, w e could als o charac terize D efendant Reeves’ s right to15 As aptly stressed by the Croll dissent, The Hague Convention provides a remedy notwhen a parent moves the child from city to sub urb or from home to boarding school, but when he or she tra nsports the child across national borders. I n light of this international context, the term “place of residence,” as used in the Convention, logically contemplates decisions regarding international relocation. Accordingly, the right to choose the country in which a child lives, like

the authority

over the child’s more spec ific livin g arra ngeme nt s, constitutes a “right to determine the child’s place of r esidence” under

Article 5, and thus a “right of custody

” under the Convention. Croll , 229 F.3d at 148 (Sotomayor, J., dissenting). 38 determine the precise location of Jessica’s r esidence within Norway as a m ere “lim itation” ( albeit a m

ore expans ive one) on Plaintiff Furnes’ s right to ke ep his daughter ne ar him . The m ore natural chara cteriza

tion, however, is t

hat Defendant Reeves a nd Plaintif

f Furnes s hare a div ided right t o determ ine Jessic a’s pla ce of residence, and that each of their rights serves as a limitation on the other’ s. Stated simply, they

possess a joint right to determine Jessica’s place of re sidence. 15 Our

ana lysi s is als o co nsi ste nt wi th t he c onc ept of “jo int pare nta l res pon sib ili ty” recognize d under Nor

wegian la w. In c ontrast to t

he agree ment i

n Croll , the Agreement here granted Pla intiff Furnes joint parental responsibility, which under the Norw egian Chil dren Act granted F urnes the r

ight to share decision- makin g authorit y with Reeves. See Children Act , §§ 30, 35b , 43.

2. A Ne Exeat

Right Can Be Exercised Without Wrongful Rem oval The Croll majority ’s conclusion was equally inform ed by its reasoning that the ne exeat

clause did

not creat e a right t

hat Mr. C roll could h ave exer cised absent39

Christin a’s removal, as requi red for retur n under Arti cle 3 of the C onventi on. Accordingly, the Croll majority concluded that the rights created by the ne exeat clause cou ld not co nstitut e rights o f custody und er the Conv ention. Croll , 229 F.3 d at 140. The probl em w ith the majority ’s rea soning, in ou r view, is that it in correct ly assumes that a ne exeat

right could be exercised only to prevent a wrongful removal; it ignores the situation in which the custodial parent complies with the ne exeatclause an d requests the non-cus todial parent’s c onsent to m ove abroad

with the ch ild. He re, for example , if Defe ndan t Reev es had soug ht Pla inti ff Furn es’s consent to Je ssica’ s movin g abroad – a s she was r equired by

Norweg ian law t o do prior to re locating – F urnes woul d have had t he opportuni ty to e xercise h is ne exeat right by granting or withholding consent. Accordingly, the ne exeat right is capable o f being exercised in t he absence

of wrongf

ul rem oval. Ind eed, it i s likely that Plain tiff Fur nes would ha

ve exerc ised his ne exeat rights in the

absence o f the wrongful remo val.

3. Purpos e and Dra fters’ Intent We also do not share the Croll majority ’s concern that if a ne exeat clause alone conf

erred “ rights of c ustody”

upon a parent, a cour

t could be c ompel led to return a child to a pa

rent “ who lacks the right or

responsibil ity to give care or to16 In further support of its conclusion with reg ard to the drafters’ intent, the Croll majority

noted that the chair of the Hague Confe rence Commission that drafted the Convention has written that the right to veto relocation does not amount to the ty pe of custody rig

ht contemplated in Article 3, as foll ows: [B]reach of a right simply to give or to withhold consent to changes in a plac e of residence is not to be construed as a breach of rights of custody

in the sense of

Article 3. A suggestion that the definition of “abduction” should be w

idened to cover th is case was not pursued. Id. at 141 (quoting A. E. Anton, The Hague Convention on I nternational Child Abduction , 30 Int’l & Comp. L .Q. 537, 546 (1981)). However, as the Crolldissent correctly noted, the above quote represents the view of Mr. Anton alone and not nec essarily the appr oach of the Convention. We further point out that the legislative history and legal scholarship are divided and none is au

thoritati ve. For example, d

uring th e debate

on variou s proposa

ls at the f inal diplomatic conference on the Convention in October of 1980, the f ollowing hypothetica

l was proposed by Mr. Allan Leal of Canada : Custody is given to the mother, but the order provides that the child cannot go out of the jurisdiction without the father’s consent. If the mother nevertheless leaves the jurisdict ion without

such con sent, tha

t constitut

es wrong ful remov al. Silberman, Linda, Patching Up the Abduction Convention: A Call for a New I nternational 40 decide w ho should give it, or ev en to a parent with a ccess wh o has been f ound unfit to have cu stody.” Id. at 141. T he custody

order in Croll placed all burdens of care and custody on Mrs. Croll, and the Croll maj ority feared t hat an order returni

ng Christina to Mr. C roll would

effect ively t ransfer custody of Christi

na to a parent with no cor respondi ng duty to pr ovide for her. Id . The Croll majority stressed that the Convent

ion’s goal is to enfor

ce custody

rights – not t o alter them by ordering return of a ch ild to a no n-custod ial parent

. Id . On tha t basis, th e ma

jority concluded that a rule requiring return for violation of a ne exeat clause w ould ma

ke the Convent

ion unworka

ble and coul d not accur

ately reflec t the intent

of the drafter s. Id. at 140-41. 16Protocol a nd a Sugg estion fo r Amendme nts to I CARA , 38 Tex. Int’l L.J.41, 46 n.34 (2003) (quoting Hague Conferenc e on Private International Law, Acts and Docu ments, II I Actes et Documen ts de la Qu

atorzieme Session, O ct. 6-25, 1980, AT 266 (1980)). Some scholars have cited the above hy pothetic al and the se statements in sup port of th e view tha

t ne exeat rights cl ea rl y co ns ti tu te ri gh ts of cu st od y. The comments of other representatives at the Convention have be en cited

in furthe r support , as follo ws: Mr

. van Boeschoten of the Netherlands noted that under the present terms of the Convention, the abducted child would have to be sent back immediately . Therefore, Mr. v an Boeschoten saw no need to revise the pr esent Article 3 to de al mor e expansive ly

with rig hts of acce ss. Mr. Eeke laar, ob server for the Commonweal

th Sec retaria t, also expre ssed the v

iew that a non-cust odial par ent with a

right to b e consulted about re location

would be c overed i

n the present definition

under Ar ticle 5. Id

. 41 We are unpersua ded by t

his analy sis as wel l. First , this fe ared res ult can be avoided by allowing a parent, such as Mrs. Croll, to return the child to her habitual residence as opposed to relinquishing the child to Mr. Croll for return. Once back in Hong Kong, Mrs. Croll then could petition the court there to remove the ne exeat restriction in the custody agreement. Accordingly, our construction of the ne exeat right does no t alter th e term s of the cus tody ag reem ent. Ra

ther, it simply would inconvenie nce Mrs. Croll as t he custodial parent by

requiring that she co mply

with its term s. The C onvention’ s purpose is to prevent the intern ational ab duction of children and is thwarted, not satisfied, by the Croll maj ority’ s construct ion of the ne exeat right. In any event, the particular fear s expressed by the Croll maj ority – that a child could be returned to a parent with no duty or ability to care for the child – are17 As the Croll dissent notes,

[T]he majority

contends that ‘rig hts of cus tody ,’ as use d in the Conve

ntion, re fers to a ‘bundle of rights’ of which a parent must posses s a certain p ortion in order to be protected by t he Conven

tion, and t hat posse ssion of on

ly one of thos e right s – in this case, th e ‘rig

ht to determine the child’s place of residence’ by exercising a nd leveraging

a veto power over the child’s international relocation – is insuff

icient to confer custody on the party

possessing that power. . . . The Convention contains no indication that in suc

h an arr angeme nt, a par ent must po ssess some

minimum n

u mber of rights of custody

in order to qualify f

or protection. Croll , 229 F.3d at 147 (Sotomayor, J., dissenting).

18 As pointed out in the Croll dissent, [T]he majority’s char

acterization of a return remedy for violations of ne exeat

rights as unworkable fails to account for the Convention’s protection of any number of joint custody arrangements in which the pare nts trade physical c

ustody or in which one parent possesses physical custody and the other parent contributes to decisions about th e ch il d’ s u pb ri ng in g. By t he ma jo ri ty’ s r ea so ni ng , w er e t he pa re nt wi th ph ys ica l custody to remove the child from the country of habitu al reside nce, the court wo uld have no power to return the child, because no adult would be required to care for him or her upon

return. Such a conclusi on, howeve r, would largely eviscerate the 42 missin g from

this case. Plaintif

f Furnes h as ongoing duti es under § 3 0 of the Children A ct, am

ong others, to provide c are and c onsiderati on to Jessic a. Indee d, the Bergen City Court determine d that Furn es was be tter able than Reev es to provide for and care for Jessica. The Croll maj ority’ s fears a

re at bes t unique to the particula r facts in th at case and n ot presen t here. Further, the Hague

Convention r

equires return of th e child to a parent w ho possesses a

single righ

t of custody

– even a j oint right – t

hat is viola

ted by t he child’s remo val. 17 The nec essary impli cation of t

he Conventi on’s ter

ms is t hat a child may som

etimes be returned to a parent who has not previously possessed pri mary ph ysic al cu sto dy. 18 We also note that the Convention provides anConvention’s protection of joint custody rig hts. Id. at 149 (Sotomayor, J., dissenting).

19 Defend ant Reev es does no t assert t hat ther e is a gr ave risk that Jessic a’s retu

rn to Norway would expose her to physical or psy chological harm or otherwise place her in an intolerable situation. See supra note 8

. 43 exception to the m andatory -return r ule where return would be pa rticular ly damaging for any r

eason, including, presumably, the malfeasance or nonfeasance of the paren t seeking return. See Convention, Art. 13(b). Article 13(b) provides that a court is not bound to order return of a child where “there is a grave risk that his or her r

eturn woul d expose the

child to phy sical or ps ycholog ical harm or otherwise p lace the chi ld in an in tolerable situatio n.” 19 Id . Thus, the Croll maj ority’ s concern

is alrea dy taken into acco unt by A rticle 13( b) of the H ague Convention. There is no need to diminish the nature of the ne exeat right. H. Rights That Were Act ually Exercised Or Would Have Been Exercised Having det ermi

ned that Pl aintiff F urnes has “ rights of c ustody”

under the Hague Con

vention, w e now exa

mine w hether Pl aintiff F urnes has s hown that hi s rights we re “ actually

exercise d, either

jointly or alone, or would ha

ve been so exercise d but for the

rem oval or re tention.”

Convention, Art. 3(

b). W e conclude that he has

. With re gard to Pla

intiff Fur nes’s r ights under § 30 of the Ch ildren Ac t, the district court found that Furnes was exercising his rights of joint parental44

responsi bility in Norway pri or to Jess ica’s removal to th e United Stat es. No indication i

n the reco rd suggests o therwise . On appe al, De fendant Reeves does not assert tha t Plaintif f Furnes w as not actu ally e xercising his rights a t the time of Jes sic a’s r emova l fro m Norwa y. Further, it is clear

that Plaintiff Fur

nes would ha

ve exerc ised his cus tody rights under the ne exeat

clause in § 43 but for Jessica’s removal. U nder Norweg ian law, Defenda nt Reeves was bound t o seek Plaintiff Fur nes’s c onsent prior to relocating outside Norway with Jessica. H ad Reeves complied with that obligation, Furnes w ould have ex ercised h is right by either c onsenting to t

he relocatio n (with or wit hout con ditions ) or withho lding co nsent. Accord ingly, we conclude that Furnes would have exercised his rights under the ne exeat clause but for the removal, as re quired by Article 3(b) of the

Convention. We now

turn to Reeves’ s two aff

irma tive defe nses. I. One-Year Limitation P eriod Reeves a sserts tha

t Plaintif f Furnes’ s petition w as not timely f iled beca use it was filed more than a year following Jessica’s removal from Norway. See Convention, Art. 12 ; 42 U.S. C. § 11603( e)(2)(B ). The district c ourt, how ever, di d not err in concluding that Plaintiff Furnes’s petition was timely filed. Under Article 12 of the Convention, a court is required to order return of a child who has20 Because the district court concluded that F urnes’s petition was timely filed, the district court did not addre ss the issue

of wheth er Jessica

was settl ed in her

new envi ronment. 45 been wrongfully removed unless the respondent shows that the petition for return of the chil d was fil ed mor e than one y

ear fro m the date of the

wrongful rem oval or retention

. Convention, Art. 12 . Even i f the petit ion has been

filed m ore than one year after th e abduction , a court is require d to order r

eturn unles s the respo ndent also shows that the ch ild has bec ome se ttled in his o r her new environment. 20 Id

. Here, Pl aint iff Fu rnes f

iled his p etiti on more t han o ne year af ter Je ssic a’s

remo val. Re eves m oved to the U nited Stat es with Je ssica in the summ er of 2001, and Furnes did not file the petition until November of 2002. However, the district court concluded that the limitation period was equitably tolled until Plaintiff Furnes located Je ssica, a

nd determ

ined that th e petition w as filed w ithin one year of Furnes’ s locating J essica. Accordi ngly, the distric t court con cluded that the petitio n was timely filed. We agree with the district court that equitable tolling may apply to ICARA petitions for the return of a child where the parent removing the child has secreted the child from the parent s eeking ret urn. See Mendez Lynch v. Mendez L ynch , 220 F. Supp. 2d 1347,1362- 63 (M.D .Fla. 2002) (holding that equit able tollin g applied to ICARA petitions because otherwise “ a parent who abducts and conceals children46

for m ore than one

year will be rewarde d for the m isconduct by

creating eligibility for an af firm ative def

ense not otherwise a

vailable” ); see also Ellis v. General Motors Ac ceptance

Corp. , 160 F.3 d 703, 706 (1 1th Cir. 1 998) (“ Unless Co ngress states otherwise, equitabletolling should be read into every

federal statute of limit ations.” ); Young v. United States , 535 U. S. 43, 12 2 S. Ct. 1036, 1040 ( 2002) (“I t is hornbook l aw that l imita tions period s are customar ily subj ect to equi table tolling, unless tolling would be inconsistent with the text of the relevant statute.”) (citations and internal quotation marks omitted). Ac cordingly, we conclude that the one-year period of lim itations began from the date that Plaintiff Furnes confirmed Jess ica’s locatio n in the Uni ted States , in March 20 02 at the ea rliest. See Bocquet v. Ouzid , 225 F.S upp.2d 1337, 1348 (S.D . Fla. 2002) (conc luding in ICARA case that one-y ear limitation period did not begin until date petitioner confirmed the ch ild’s resid ence in the United Stat es). We als o conclude t

hat the dist

rict cour t did not err

in applying equitabl e tolling given

the fact s found by

the distric t court in t

his case. For exam

ple, the dist rict c ourt accep ted Pl aint iff Fu rnes’s testi mony regar ding Defend ant Re eves’s concealment of her location and his extensive efforts to locate Jessica. The district court found that Furnes was a “credible and believable witness” and that the police report file d by Furnes accu rately summarized his effo rts to loc ate his dau ghter.21 We recognize that Reeves argue s that she disclosed her and Jessica’s whereabouts, but

the distri ct court

accept ed Furnes’s version of the facts, not hers. We will not disturb the district court’s credibility de

terminations. See, e .g. , United States v. McPhee , 336 F.3d 1269, 1275 (11th Cir. 2003)

(“[W]e allot

substantia

l defer ence to t he factfinder, in this cas e, the dis trict cou rt, in reaching credibility

determinations with respect to witness testimony” ( internal quotation marks and citations omitted)). 47 The distr ict court’ s factual

findings ar

e not clea rly e rroneous. 21 See Lops , 140 F.3 d at 935 n.6

. J. Consent or Acquiescenc e As her second affirmative defense, Reeves contends that Furnes “consented to or subsequ ently acquiesced” in Jessic a’s re moval from Norway . Convention, Art. 13( a); 42 U. S.C. § 11603(e)( 2)(B). The distr ict court a

lso did not cl early

err in its factua l findin g that Plai ntiff Furn es did no t acquiesc e in Jessi ca’s relocatio n. The distr ict court accepted P laintiff Furnes’ s testimony tha t he took re

peated an d extensive actions to loc ate his daughter. A s noted by the distric t court, “[t] he efforts that [Furnes] undertook to obtain legal assistance in Norway . . . are completely inconsistent with any claim of acquiescence in the child being detained permanently in the U

nited States.”48 IV. CONCLUS ION We conclude that Jessica was wrongfully removed or retained from Norway by De fendant Reeves in vi olation of P laintiff Furnes’ s rights of custody un der the Hague Con

vention; tha

t Furnes w as exerc ising those r ights or wo uld have exercised them but for the rem oval or retention of Jessica; that Furnes’s ICARA petition fo r return of Jessica was tim ely f iled; that F urnes did not

consent to o r acquiesce in Jessica’s removal or r etention in the United States; and that the district

cou rt er red in d enyi ng F urn es’s pet iti on f or t he re tur n of

Jes sic a to Norw ay. For the foregoing reasons, we reverse the district court’s denial of Plaintiff Furnes’ s ICARA

petition an d rem and this ca se with ins tructions. On rem and, the district court shall grant Plaintiff Furnes’s ICARA petition, and order that Defendant Reeves shall transport and return Jessica to Bergen, Norway no later than 30 day s followin g the issuanc e of the m andate of this Court. If Def

endant Reeves refuses to c omply with the or

der, the n Defend ant Reeve s shall rel inquish Jessica to Plaintiff Furnes at a time and at a location in the United States Courthouse for the Northern District of Georgia, Atlanta, G eorgia, to be determined by the d istrict c ourt or at such other place as d eterm ined by the distric t court, and Plaintiff Furnes may

then transport and return Jessica to Bergen, Norway . Once Jessica is returned

to Bergen , Norw ay, the partie s’ right s are gove rned under their49

Agreement and Norw egian law. On rem and, the district court shall promptly enter a briefing schedule regarding the award of attorney’ s fees and costs to Plaintiff Furnes. 42 U.S.C. § 11607. W e conclude the district court in the first instance should deter

mine t he am ount of atto rney’ s fees and costs. REVERSED AND REMANDED.