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 ELEVENTH CIRCUIT

________________________

No. 03-12826

________________________

D.C. Docket No. 02-02998-CV-TWT-1

TOM A. FURNES,

Plaintiff-Appellant,

versus

PAMELA KAY REEVES, 

Defendant-Appellee.

__________________________

Appeal from the United States District Court for the

 Northern District of Georgia

___________________________

(March 10, 2004)

Before TJOFLAT, HULL and FAY, Circuit Judges.

HULL, Circuit Judge:

Plaintiff Tom A. Furnes filed a petition under the International Child

Abduction Remedies Act, 42 U.S.C. §§ 11601-11611 (1988) (“ICARA”), seeking

the return of his daughter Jessica to Norway from Georgia, where she now resides
2

with her mother, Defendant Pamela Kay Reeves. Jessica was born in Norway in

1996 and lived there until 2001, when her mother visited the United States and

later refused to bring Jessica back to Norway, in violation of Furnes’s rights under

Norwegian law and their custody agreement. After an evidentiary hearing, the

district court denied Plaintiff Furnes’s ICARA petition. After review and oral

argument, we reverse.

I. Factual Background

A. Norwegian Court’s Custody Order

Plaintiff Furnes, a citizen and resident of Norway, and Defendant Reeves, a

citizen and resident of the United States, were married in 1994 and resided in

Norway. Their daughter Jessica was born on September 17, 1996, in Norway, and

resided with both parents until they separated in January of 1998. 

During and after their separation, Plaintiff Furnes and Defendant Reeves’s

relationship was marked by constant conflict, and they were unable to agree on the

division of their assets or the custody of their daughter. Defendant Reeves

maintained custody of Jessica during the separation, and commonly thwarted

Plaintiff Furnes’s attempts to exercise his visitation rights. Defendant Reeves also

made serious allegations against Plaintiff Furnes (including that Furnes had

physically threatened and abused Reeves and had poisoned Jessica), which were
3

later determined to be groundless. In addition, in December of 1998, there was a

fire in the home of Defendant Reeves (the couple’s former joint home), and

Defendant Reeves was charged with arson and insurance fraud. Although

ultimately acquitted, Defendant Reeves was ordered to pay a large civil judgment

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 there was little doubt that Defendant Reeves played the “leading part” in

the conflict between the parties, that unrest in Reeves’s life negatively affected her

ability to care for her daughter, and that, in light of her previous “sabotage” of

Furnes’s scheduled visits, it was not realistic to believe that Defendant Reeves

would be able to respect an agreement granting access rights to Furnes. The

Bergen City Court specifically found as follows:

Production of evidence has shown that the level of conflict between the

parties is high, and that there is little doubt as to that it is the defendant

[Reeves] who is the leading part in this conflict. She emerges as the

conflict instigator and has on several occasions made serious accusations

against the plaintiff and other involved parties. These accusations have

later proven to be completely groundless. . . .

The court also finds grounds to comment that the defendant is

presently involved in two cases with the plaintiff in two different courts:

a dispute concerning a distribution of estate and the case concerning

custody/access of the child. Moreover, she has been remanded in

custody and is still charged with arson, insurance fraud and for filing
4

false complaints. In spite of this she is also involved in and has hired

attorneys for a private legal dispute in connection with the purchase of

a dog. Thus there is much unrest involved with her and this has

undoubtedly a negative affect in regards to the care of the child. 

The defendant has furthermore shown a negative attitude to

cooperating with the plaintiff concerning already determined access. . . .

In this connection the court refers to that the defendant in several

occasions has sabotaged the visits that have been determined by legally

enforceable and provisional decisions concerning access. . . .

It is the court’s opinion that this episode clearly shows that the

defendant has problems respecting the child’s rights and protecting the

child from conflicts between the parties. As maintained by the expert,

the defendant can not differentiate between her own fears and skepticism

and the child’s fears and skepticism. Another situation that the court

would like to mention in this connection is the episode that took place at

the home of the plaintiff, where the defendant, in the presence of the

expert, provoked 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 over

a period of time will be harmful for the child.

In contrast, the Bergen City Court found, based in part on the testimony of

the psychiatrist assigned as the case expert, that Plaintiff Furnes was an

understanding and cooperative parent and was able to offer Jessica a secure home. 

On that basis, the Bergen City Court concluded that, notwithstanding Jessica’s

primary attachment to her mother, Furnes was best suited to maintain custody of

Jessica, as follows: 

The court agrees with the expert that the plaintiff is the party that

emerges as the best suited person to care for Jessica, also taking into

consideration the conflictsand cooperation problems between the parties.

In the court’s opinion, a transfer of custody to the plaintiff in itself might
5

reduce the possibilities for conflicts and thereby create more peace and

quiet for the child. The plaintiff has shown that he is more aware of the

child’s situation in relation to the conflict than the defendant is, and there

is little reason to believe that his negative attitude towards the other party

will hinder the child from having contact with her mother. In this

connection the court finds reason to refer to the following from the

expert’s report. . . .

“Ms. Reeves is the person that Jessica is primarily attached to.

However, it is Mr. Furnes that has shown most understanding for

Jessica’s needs for regular contact with both parents and for her marked

need for peace in her current situation. . . . In addition, Mr. Furnes, in his

current situation, is able to offer Jessica a secure home and a more

structured life than the mother can, though this can not be given decisive

importance as one must expect Ms. Reeves’ situation to improve with

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, Defendant Reeves. Specifically, the Bergen City Court

ordered that Jessica live with her father and that Defendant Reeves have access to

Jessica on alternating weekends; alternating Wednesdays; alternating Christmas,

New Year, and Easter holidays; and for two weeks over Jessica’s summer vacation.

B. Settlement Agreement

Defendant Reeves appealed the August 25, 1999, judgment of the Bergen

City Court to the Norwegian Gulating Court of Appeals. In 2001, the parties

reached an agreement regarding custody (the “Agreement”), which was approved

by the Gulating Court, and the appeal was dismissed. Pursuant to the Agreement,
6

dated February 28, 2001, the parties would maintain “joint parental responsibility”

for their daughter under Norwegian law; Jessica would live with her mother; and

her father would have access to their daughter on certain days and at certain times. 

Specifically, the Agreement provided in relevant part as follows:

1. Today a court settlement has been entered into between Pamela

Kay Reeves, date of birth and Nation ID No. 24.02.69 25270,

hereinafter called the mother, and Tom Arne Furnes, date of birth

and National ID No. 23.12.67 45788, hereinafter called the father.

2. The agreement concerns our child, Jessica Anne Kristine Furnes,

date of birth and National ID No. 17.09.96 38072, hereinafter

called the daughter. 

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

4. The daughter shall live with her mother, who shall have custody

of the child.

5. The father shall have the following access to the daughter:

a) Alternating weeks from Thursday at 4pm to Monday

morning when the daughter is to be brought at school

(kindergarten).

b) Alternating fall vacations. During the fall vacation 2001 the

daughter shall be with the mother.

c) Alternating Christmas vacations. During the Christmas

vacation 2001 the daughter shall be with the father.

d) Alternating Easter vacations. During the Easter vacation

2001, from April 9, 2001 to April 17, 2001, the daughter

shall be with the father.

e) Three weeks during the summer, whereof two of the weeks

shall be consecutive. Summer vacations shall be agreed

upon within May 1st of every year. In regards to the 2001

summer vacation, the mother shall decide when she wants

to have her vacation and thereafter the two parents shall

alternately decide their vacations every other year within

May 1st.
1Sections 31 and 33 relate to the child’s rights of self-determination 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 yet five years 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 have further agreed to cooperate loyally for the best

for their daughter, ensuring that this agreement and what it

confirms can be carried out. (Emphasis added.)

The term “joint parental responsibility” used in the Agreement has a

designated meaning under Norwegian law. Thus, in addition to access rights,

Plaintiff Furnes had additional rights associated with “joint parental responsibility”

under Norwegian law. Specifically, under Norway’s Act No. 7 of 8 April 1981

relating to Children and Parents (the “Children Act”), parental responsibility is

broadly defined to include the right “to make decisions for the child in personal

matters.” Section 30 of the Children Act states:

Meaning of parental responsibility

The child is entitled to care and consideration from those who have

parental responsibility. These persons have the right and the duty to

make decisions for the child in personal matters within the limits set by

sections 31 and 331

. Parental responsibility shall be exercised on the

basis of the child’s interests and needs.

Those who have parental responsibility are under obligation to

bring up and maintain the child properly. They shall ensure that the child

receives an education according to his or her ability and aptitude.

The child must not be subjected to violence or in any way be

treated so as to harm or endanger his or her mental or physical health.

As regards the right to make decisions on behalf of the child in

financial matters, the provisions of Act No. 3 of 22 April 1927 on

Guardianship shall apply.
8

 Children Act, § 30 (emphasis added). Accordingly, under § 30, a parent with joint

“parental responsibility” has the right, albeit a shared right, “to make decisions for

the child in personal matters.” 

Where parents exercise “joint parental responsibility” but the child lives with

only one parent, this joint but broad decision-making authority of the other parent

granted under § 30 is, however, narrowed by § 35b of the Children Act, as follows:

Decisions that may be taken by the person with whom the child lives

permanently

If the parents have joint parental responsibility, but the child lives

permanently with only one of them, the other parent may not object to the

parent with whom the child lives making decisions concerning important

aspects of the child’s care, such as the question of whether the child shall

attend a day-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

responsibility,” the parent with whom the child resides (in this case, Defendant

Reeves) has decision-making authority “concerning important aspects of the child’s

care,” but not all aspects of the child’s care. Section 35b of the Children’s Act thus

does not take away all decision-making authority granted the other parent under

§ 30. Instead, Plaintiff Furnes still retains some decision-making 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 with whom the child resides has the authority

under § 35b to determine where the child will live within Norway, § 43 of the

Children Act grants a parent with joint parental responsibility, here Furnes,

decision-making authority over whether the child lives outside Norway. 

Specifically, § 43 provides that both parents must consent to the child moving

abroad, as follows:

Moving abroad with the child

If one of the parents has sole parental responsibility, the other

parent may not object to the child moving abroad. If the parents have

joint parental responsibility, both of them must consent to the child

moving abroad.

If the parents disagree as to who shall have parental responsibility

or with whom the child shall live permanently, the child must not move

abroad until the matter has been decided.

Id. § 43 (emphasis added). Consequently, Plaintiff Furnes’s joint parental

responsibility effectively gave him the right, generally referred to as a “ne exeat”

right, to determine whether Jessica can live outside of Norway with her mother. 

C. Removal

During the evidentiary hearing, Plaintiff Furnes introduced a Bergen police

report summarizing how the removal of Jessica to the United States occurred and

his subsequent efforts to locate his daughter. Furnes also testified about these

events. The district court found that Furnes’s testimony was credible, that the
2We note that Defendant Reeves’s account of these facts is substantially different from

Plaintiff Furnes’s, but the district court did not credit her account. 

10

police report accurately summarized his efforts to locate his daughter, and that

Furnes did not acquiesce in the removal of Jessica to the United States.2

In May of 2001, Defendant Reeves approached Plaintiff Furnes and

requested a modification to the access schedule. She proposed that Jessica stay

with Furnes for a longer period than scheduled in May 2001 and in the fall of 2001

in exchange for Furnes’s consent to Jessica spending the entire summer in the

United States with Reeves. According to Furnes, Reeves explained that her brother

was getting married in the United States, and Reeves wanted to take Jessica to

spend the summer of 2001 with her family. Furnes agreed, with the clear

expectation that Jessica would return to start school in Norway in the Fall of 2001. 

According to Furnes, Defendant Reeves neither returned nor contacted him to

inform him of her whereabouts. 

Plaintiff Furnes presented evidence that, when Reeves failed to contact him

at the end of the summer 2001, he began ceaseless efforts to locate Defendant

Reeves and Jessica, at first in Bergen and Oslo and then in the United States. He

first tried calling and writing to Reeves at her home in Bergen, with no response. 

He then contacted Reeves’s landlord, who informed him that she had moved to
11

Oslo. Furnes then contacted the local post office and was informed that Reeves’s

mail was being forwarded to her sister’s address in Oslo. Later in the fall of 2001,

Furnes made numerous telephone calls to Reeves’s sister in Oslo, who promised to

pass the messages on to Reeves. When Reeves failed to return any of the calls,

Furnes contacted Reeves’s sister’s husband at his place of business and begged him

to tell Plaintiff Furnes where Reeves was, but Reeves’s sister’s husband denied any

knowledge of Reeves’s whereabouts. 

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

ultimately told by Norwegian authorities that Defendant Reeves probably was not

in Oslo and that there was little else they could do to locate Reeves or Jessica. On

March 27, 2002, Furnes filed a petition for the return of his daughter with the

Norwegian Ministry of Justice, who helped Furnes in his attempts to locate his

daughter. Plaintiff Furnes then began searching for Reeves and Jessica in the

United States. In August 2002, Plaintiff Furnes traveled to Tampa, Florida and

Atlanta, Georgia, where he had been informed that Reeves might be living, to

search for Reeves and Jessica. 

D. ICARA Petition
3Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980,

T.I.A.S. No. 11670, 1343 U.N.T.S. 89, reprinted in 51 Fed.Reg. 10,494 (1986). For an overview

of the structure and implementation of the Hague Convention and a list of many law review

articles about the Hague Convention, see Linda Silberman, Hague International Child Abduction

Convention: A Progress Report, 57 Law & Contemp. Probs. 209 (1994).

12

On November 4, 2002, Plaintiff Furnes filed a Petition for Return of Child to

Petitioner under ICARA in the district court in Atlanta, Georgia. Furnes’s ICARA

petition alleged that Defendant Reeves wrongfully removed Jessica from Norway

in violation of Furnes’s joint custody rights and sought her return pursuant to

Article 12 of the Hague Convention on the Civil Aspects of International Child

Abduction3

 (the “Hague Convention” or “Convention”) and 42 U.S.C. § 11603(b). 

After an evidentiary hearing, the district court concluded that Defendant

Reeves’s removal of Jessica from Norway violated Plaintiff Furnes’s rights to his

daughter under Norwegian law. The district court further found (1) that Plaintiff

Furnes was a credible witness, (2) that Furnes had not acquiesced in Defendant

Reeves’s removal of Jessica from Norway, (3) that Furnes had been unable to

locate Reeves and Jessica for many months after the removal, and (4) that his

ICARA petition had been timely filed within one year of removal, in accordance

with the Hague Convention. 

The district court, however, concluded that Plaintiff Furnes was exercising

mere access rights coupled with a ne exeat right under Norwegian law – not
4This ruling was entered by the Bergen City “Recorder,” which the parties advise us is a

judge on the Bergen City court.

13

custody rights – over Jessica at the time of removal. On that basis, the district

court decided that it was not authorized to order the return of the child pursuant to

the Convention and ICARA, and denied the petition. 

On March 7, 2003, Plaintiff Furnes sought a clarification of his rights from

the Bergen City Recorder on an ex parte 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 “right of codetermination with regard to the child,” as follows:

The legal point of departure is that, pursuant to the settlement in court of

February 28 2001, the parties shall have joint legal custody of the child.

That entails that, pursuant to section 30 of the Norwegian Children Act,

the parties shall jointly make all of the necessary decisions about the

child’s circumstances, in which the child herself is unable to take part

because of her maturity, etc. According to an express provision of

section 43, paragraph 1 of the Children Act, both parties must agree

before the child can emigrate from Norway.

According to the settlement in court, the defendant, Pamela Kay

Reeves, shall have the daily care and control of the parties’ joint child.

Pursuant to section 35b of the Children Act, this entails the authority to

make decisions about the child’s daily circumstances, including moving

within the borders of Norway. This authority does not include

emigrating abroad with the child.

According to the documents of the case, the court presumes that

Pamela Kay Reeves did not ask for the plaintiff’s consent before she

emigrated with the child to the USA in 2001. The emigration with the
14

child was thereby in violation of [Tom] A. Furnes’s right of

codetermination with regard to the child.

This ruling indicated that, pursuant to § 30, Furnes and Reeves “shall jointly make

all of the necessary decisions about the child’s circumstances,” and that pursuant to

§ 35b, Reeves had “the authority to make decisions about the child’s daily

circumstances, including moving within the borders of Norway,” but not to

emigrate abroad with the child. 

Plaintiff Furnes then filed a motion for reconsideration with the federal

district court on the basis of the Bergen City Recorder’s ruling. The district court

denied the motion. 

II. STANDARD OF REVIEW

“We review the district court’s factual findings for clear error and its legal

conclusions de novo.” Lops v. Lops, 140 F.3d 927, 935 n.6 (11th Cir. 1998)

(citation omitted).

III. DISCUSSION

Plaintiff Furnes seeks return of his daughter to Norway pursuant to the

Hague Convention, as adopted in the United States in ICARA. See 42 U.S.C.

§§ 11601-11611. The paramount issue in this case is whether Plaintiff Furnes’s

rights to his daughter under Norwegian law are the type of rights that entitle him to
15

the return of his child under the express terms of the Hague Convention. We

conclude that they are. 

In so doing, we first review the terms and purposes of the Hague

Convention. We then analyze the extent and nature of Plaintiff Furnes’s

Norwegian law rights, place them in the framework of the Hague Convention’s

terms, and explain why Plaintiff Furnes is entitled to return of Jessica to Norway. 

Finally, we address Defendant Reeves’s two affirmative defenses.

A. Purpose of the Hague Convention

The Hague Convention was created in 1980 with the stated purpose “to

protect children internationally from the harmful effects of their wrongful removal

or retention and to establish procedures to ensure their prompt return to the State of

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

Convention, intro. The Hague Convention specifies that its objects are: “a) to

secure the prompt return of children wrongfully removed to or retained in any

Contracting State; and b) to ensure that rights of custody and of access under the

law of one Contracting State are effectively respected in the other Contracting

States.” Convention, Art. 1. 

To effect these general goals, Articles 3, 5, 12, and 13 of the Hague

Convention together establish the remedy of return of a child to his or her country
5

In this regard, Article 12 provides in relevant part:

Where a child has been wrongfully removed or retained in terms of Article 3 and, at

the date of the commencement of the proceedings before the judicial or

administrative authority of the Contracting State where the child is, a period of less

than one year has elapsed from the date of the wrongful removal or retention, the

authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have

been commenced after the expiration of one year referred to in the preceding

paragraph, shall also order the return of the child, unless it is demonstrated that the

child is now settled in its new environment.

Convention, Art. 12 (emphasis added).

16

of habitual residence and set forth the circumstances under which the return remedy

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 sympathetic forum. Lops, 140 F.3d at 936 (citing

Friedrich v. Friedrich, 78 F.3d 1060, 1064 (6th Cir. 1996)).

B. Hague Convention’s Return Remedy

Article 12 of the Hague Convention establishes the general rule that a child

who has been “wrongfully removed or retained” within the meaning of the

Convention shall be returned unless more than a year has elapsed between the

removal and the date of commencement of the proceedings and the child has

become settled. Convention, Art. 12; see 42 U.S.C. § 11601.5

Article 3 of the Hague Convention outlines the conduct that is “wrongful”

for purposes of Article 12. Pursuant to Article 3, the removal or retention of a
17

child is wrongful if it violates the “rights of custody” of another person, either

jointly or alone, and those “rights of custody” were actually being exercised at the

time of the removal or retention or would have been exercised absent the removal

or retention. Convention, Art. 3. Article 3 provides:

The removal or the retention of a child is to be considered 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.

Id. (emphasis added); see Lops, 140 F.3d at 935. 

The Hague Convention does not include an exhaustive list of rights that

constitute “rights of custody.” However, Article 5 does distinguish between “rights

of custody” and “rights of access” as follows:

a) “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; 

b) “rights of access” shall include the right to take a child for a limited

period of time to a place other than the child’s habitual residence. 

Convention, Art. 5 (emphasis added). Accordingly, “rights of custody” is a term

expressly defined in the Convention. In American courts, we tend to think of

custody rights primarily in the sense of physical custody of the child. However, in
6Article 13 provides for certain other narrow exceptions to the mandatory-return rule,

none of which is implicated here.

18

applying the Hague Convention, we must look to the definition of “rights of

custody” set forth in the Convention and not allow our somewhat different

American concepts of custody to cloud our application of the Convention’s terms. 

Specifically, in this case we must think of “rights of custody” as including “rights

relating to the care of the person of the child,” and in particular, “the right to

determine the child’s place of residence.” Id.

Further, Article 13 of the Convention sets forth certain narrow exceptions to

Article 12's mandatory-return rule. Under Article 13, a court is not bound to order

the child’s return if the person opposing the return establishes that “the person,

institution or other body having the care of the person of the child was not actually

exercising the custody rights at the time of removal or retention, or had consented

to or subsequently acquiesced in the removal or retention . . . .” Convention,

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 violation of the petitioner’s “rights of custody,” i.e., “rights relating
7

“The rights of custody . . . 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.” Convention, Art. 3.

8There are two other available affirmative defenses to the respondent that are not at issue

in this case. Return is not required if the respondent establishes by clear and convincing

evidence that (1) “there is a grave risk that his or her return would expose the child to physical or

psychological harm or otherwise place the child in an intolerable situation,” Convention, 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 rights 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 person of the child and, in particular, the right to determine the

child’s place of residence,” either jointly or alone; and (2) “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.” Convention, Arts. 3, 5;

42 U.S.C. § 11603(e)(1)(A); see Lops, 140 F.3d at 936.7

 Once the petitioner

satisfies this burden, the child must be returned to her State of habitual residence

unless the respondent establishes one of these affirmative defenses: (1) that the

petition for return was filed more than one year from the removal or retention and

the child is well-settled in her new environment, or (2) that the petitioner “was not

actually exercising the custody rights at the time of the removal or retention, or had

consented to or subsequently acquiesced in the removal or retention.” Convention,

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

8

 

C. Furnes’s Norwegian Law Rights Under §§ 30 and 35b
9Plaintiff Furnes had visitation or access rights under the Agreement. The parties agree

that the Convention distinguishes between “rights of custody” and “rights of access” and

provides the return remedy only for violations of rights of custody. Accordingly, Plaintiff

Furnes’s rights of access, although valuable, do not help him here.

20

The paramount issue in this case is whether Plaintiff Furnes’s rights to his

daughter under Norwegian law are “rights of custody,” as defined under the Hague

Convention. The parties agree that Jessica was a habitual resident of Norway from

her birth in 1996 until immediately before her removal in 2001, and that Plaintiff

Furnes had certain parental rights with regard to Jessica. However, they dispute

whether Furnes’s rights under Norwegian law, either individually or together, are

“rights of custody,” as defined under the Hague Convention. The Convention

defines “rights of custody” to 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.” 

Convention, Art. 5(a). Thus, the question becomes whether Furnes’s rights under

Norwegian law are “rights relating to the care of the person of the 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.” However, the

parties dispute the proper characterization of the rights attendant to “joint parental

responsibility” under Norwegian law. Plaintiff Furnes argues that § 30 and § 43 of
21

the Children Act provide him with rights of custody as defined by the Convention. 

We address each section.

Section 30 of the Norwegian Children Act establishes general rights and

duties of a person who has parental responsibility, including “the right and the duty

to make decisions for the child in personal matters.” Children Act, § 30 (emphasis

added). The Norwegian Children Act does not define further “decisions for the

child in personal matters.” We believe 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 would include everyday

decisions about the child’s shelter, food, clothing, education, and medical needs. 

However, this broad decision-making power granted persons with parental

responsibility is limited by § 35b, which provides:

If the parents have joint parental responsibility, but the child lives

permanently with only one of them, the other parent may not object to the

parent with whom the child lives making decisions concerning important

aspects of the child’s care, such as the question of whether the child shall

attend a day-care centre, where in Norway the child shall live and other

major decisions concerning everyday life.
10If the realm of “decisions for the child in personal matters” in § 30 (granted parents with

joint parental responsibility) did not encompass the care of the child, then there would be no need

for § 35b to limit the rights of a parent with joint responsibility in the circumstances where the

child lives permanently with one parent 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 cannot object to Defendant Reeves making decisions concerning “important

aspects of the child’s care” clearly subsumes a measure of his authority to make

“decisions for the child in personal matters” granted 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 fundamental rule of statutory interpretation that, within an act, the

same words have the same meanings and different words have different meanings. 

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

(“Where Congress includes particular language in one section of a statute but omits

it in another section of the same Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or exclusion.”) (quoting

Russello v. United States, 464 U.S. 16, 23, 104 S. Ct. 296, 300 (1983)) (internal

quotation marks omitted); Iraola & CIA, S.A. v. Kimberly-Clark Corp., 232 F.3d

854, 859 (11th Cir. 2000). This presumption is no less compelling where the

legislation is foreign, as we assume that the same logical principles governing
23

Congress also guide the Norwegian legislature. Indeed, no party in this case has

argued otherwise. 

Because the language granting authority to Plaintiff Furnes in § 30 differs

from the limiting language of § 35, we must presume that the difference is

intentional rather than accidental. The Norwegian legislature easily could have

specified in § 35b that the other parent could not object to the parent with whom

the child lives making “decisions for the child in personal matters.” Had the

legislature elected to use the language of § 30 in § 35b, it would have entirely

negated Furnes’s right to make “decisions for the child in personal matters,” as his

child lives permanently with her mother. Because it did not, we conclude: (1) that

the parent with whom the child does not reside retains the joint right to make

certain “decisions for the child in personal matters”; (2) that the realm of “decisions

for the child in personal matters” in § 30 encompasses the child’s care and is

broader than and extends beyond those “concerning important aspects of the child’s

care” in § 35b; (3) that Furnes is therefore empowered by § 30 to make some

decisions that affect personal matters, including some decisions that affect the

child’s care, but do not concern “important aspects of the child’s care”; and (4) that

some of those retained “decisions for the child in personal matters” fall within the
11Our analysis above is based on our view that “decisions for the child in personal

matters” encompass more than just the child’s care. However, even assuming that “decisions for

the child in personal matters” is the functional equivalent of decisions regarding “aspects of the

child’s care,” we note that § 35b excludes only “important aspects of the child’s care,” not all

aspects of the child’s care. Thus, Plaintiff Furnes would retain rights regarding some aspects of

the child’s care under either interpretation.

24

ambit of decisions relating to the “care of the person of the child” within the

meaning of Article 5 of the Convention.11 

 Accordingly, we determine that § 30 alone may well grant Plaintiff Furnes a

“right of custody” as defined under the Convention. Our ultimate decision that

Plaintiff Furnes has such rights of custody, however, need not, and thus does not,

depend wholly on this determination. As explained below, Furnes’s ne exeat right

under § 43 of the Norwegian Children Act grants Furnes the substantive right

(albeit a joint right) to determine whether the child lives within or outside Norway,

and thus the right to determine jointly with Reeves the child’s place of residence. 

We conclude that this ne exeat right in § 43, especially in the context of Furnes’s

retained rights under § 30, constitutes a “right of custody” as defined in the

Convention. 

D. Furnes’s Ne Exeat Right Under § 43

Section 43 of the Norwegian Children Act provides that if both parents have

joint parental responsibility, both of them must consent to the child leaving Norway

and living abroad. We conclude that this ne exeat right grants Plaintiff Furnes a
25

right of custody under the Hague Convention. Our conclusion turns on the

definition of “rights of custody” in the Convention, but it is further supported by

the history and purposes of the Convention and the decisions of courts in our sister

signatories. 

Article 5 of the Hague Convention defines “rights of custody” to 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.” Convention, Art. 5. The question, then,

is whether the ne exeat right amounts to “the right to determine the child’s place of

residence.” We conclude that it does.

In analyzing whether a parent has custodial rights under the Hague

Convention, it is crucial to note that the violation of a single custody right suffices

to make removal of a child wrongful. That is, a parent 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 custody. Article 3 of the Convention specifies that the removal or retention

of a child is wrongful if it is in breach of “rights of custody attributed to a person

. . . either jointly or alone.” Id. Art. 3(a) (emphasis added). Accordingly, if

Plaintiff Furnes shares with Defendant Reeves a joint right to determine Jessica’s

place of residence, he has a right of custody under the Hague Convention.
26

Under Norwegian law, the right to determine the child’s place of residence 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 Furnes cannot object. Consequently, Furnes 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 does, however, have the right to decide whether or not

Jessica can move outside Norway with her mother, and thereby has the joint right

to decide whether Jessica’s place of residence will be outside or within Norway. 

The Convention does not explicitly define the term “place of residence.” In

light of the context of the Hague Convention, we believe that the right to determine

whether the child lives within or outside Norway constitutes a right to determine

the child’s place of residence. The Hague 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 should be able to take Jessica across

international borders. Thus, in our view, the only logical construction of the term

“place of residence” in the Convention would necessarily encompass decisions
27

regarding whether Jessica may live outside of Norway. Therefore, what country a

child lives in, as opposed to what city or house within Norway, constitutes a right

to determine a child’s place of residence under Article 5 of the Convention and

thus a right of custody under the Convention. Given that the goal of the Hague

Convention is to deter international abduction, we readily interpret the ne exeat

right as including the right to determine the child’s place of residence because the

ne exeat right provides a parent with decision-making authority regarding the

child’s international relocation.

Moreover, even assuming that the child’s “place of residence” narrowly

refers to the particular house in which the child lives, Plaintiff Furnes nevertheless

shares with Defendant Reeves the right to determine Jessica’s place of residence

outside of Norway. Plaintiff Furnes enjoys the power not only to deny consent to

Jessica’s moving abroad, but also the power to grant consent subject to whatever

conditions he chooses. For example, Furnes could consent to Jessica’s removal

from Norway on the condition that he receive greater visitation rights, or that she

live in a particular city or near a particular airport, or even on the condition that she

live in a particular house in the United States. Thus, although § 43 of the Children

Act does not explicitly provide Furnes with the right to determine Jessica’s specific

place of residence, he effectively has that authority (jointly with Defendant Reeves)
28

where Reeves seeks to remove Jessica from Norway. Furnes’s right to determine

Jessica’s place of residence outside Norway is equal to that of Defendant Reeves. 

Under these circumstances, we conclude that Norwegian law provides Furnes and

Reeves with a joint right to determine Jessica’s place of residence. 

The fact that Plaintiff Furnes does not share in one aspect of that right (i.e.,

the right to determine Jessica’s place of residence within Norway) does not affect

this conclusion. Just as there is no requirement in the Convention that a custody

right be exercised exclusively by the parent seeking return, there is no requirement

that the right be exercised predominantly by that parent. Plaintiff Furnes maintains

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 Defendant Reeves. 

Further, even if Plaintiff Furnes’s ne exeat right is (we believe incorrectly)

viewed as a mere “veto right” or limitation on Defendant Reeves’s right to

determine Jessica’s place of residence, we nevertheless believe that the ne exeat

right under Norwegian law is a right of custody under the Convention. The right to

determine the place of the child’s residence is just one example of a custody right

under the Hague Convention. More generally, rights of custody include rights

“relating to the care of the person of the child.” Convention, Art. 5. The ne exeat
29

right under Norwegian law certainly establishes a right, no matter how minimally

or expansively that right is defined, to affect the child’s place of residence. As the

Convention’s definition of “rights of custody” implicitly acknowledges, the

determination of the child’s place of residence is a crucial aspect of the child’s

care. Thus, even assuming arguendo that Plaintiff Furnes does not have the right to

determine Jessica’s place of residence, he has at the very least a veto right relating

to the determination of her place of residence – that is, a right “relating to the care

of the person” of Jessica. Convention, Art. 5. As such, the ne exeat right in § 43

provides Furnes with a right of custody over Jessica as defined by the Hague

Convention. 

Finally, Plaintiff Furnes’s ne exeat right endows him with significant

decision-making authority over the child’s care. By requiring that Jessica remain

in Norway, Furnes can ensure that Jessica will speak Norwegian, participate in

Norwegian culture, enroll in the Norwegian school system, and have Norwegian

friends. That is, Plaintiff Furnes effectively can decide that Jessica will be

Norwegian. The right to determine a child’s language, nationality, and cultural

identity is plainly a right “relating to the care of the person of the child” within the

meaning of the Convention. 

E. Stated Purpose of Hague Convention
12As the report containing the official history and commentary of the Convention states,

“the intention [of the Convention] is to protect all the ways in which custody of children can be

exercised,” and the Convention favors “a flexible interpretation of the terms used, which allows

the greatest possible number of cases to be brought into consideration.” Elisa Pérez-Vera,

Explanatory Report: Hague Conference on Private International Law, in 3 Acts and Documents

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 egregious. They do, however, militate in favor of a rule allowing for the most

appropriate and effective means of enforcement of existing rights of custody consistent with the

terms of the Hague Convention. 

30

Our conclusion here is consistent with the history and stated purposes of the

Convention. As noted previously, the stated purpose of the Hague Convention is

“to protect children internationally from the harmful effects of their wrongful

removal or retention and to establish procedures to ensure their prompt return to

the State of their habitual residence, as well as to secure protection for their rights

of access.” Convention, intro. The Convention further states that its objects

include ensuring “that rights of custody and of access under the law of one

Contracting State are effectively respected in other Contracting States.” 

Convention, Art. 1(b).12

 

This Court previously has emphasized that “[t]he Hague Convention is

intended to ‘restore the pre-abduction status quo and to deter parents from crossing

borders in search of a more sympathetic court.’” Lops, 140 F.3d at 936 (citing

Friedrich, 78 F.3d at 1064). In this case, the Convention’s purposes are served by

ordering return of Jessica to Norway. Plaintiff Furnes and Defendant Reeves
31

maintain “joint parental responsibility” under Norwegian law. While Defendant

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 whether

Reeves can move Jessica’s residence from Norway to the United States. Under

these circumstances, sending the child back to Norway best respects the parties’

rights under Norwegian law and the Hague Convention. 

A return order effectively maintains the status quo with regard to custody of

Jessica. A return order will not effect a change in custody (as Defendant Reeves

argues) because she is free to accompany her child back to Norway and retain

custody. Indeed, upon return to Norway, Defendant Reeves can seek a change in

the Agreement to allow her to move with Jessica to the United States. On the other

hand, the denial of Plaintiff Furnes’s ICARA petition would allow Defendant

Reeves to nullify the Agreement approved by the Norwegian Gulating Court of

Appeals and to usurp Furnes’s Norwegian law rights to care for his child. The

specific purpose of the Hague Convention was to deter and amend the exact type of

abduction in this case, not to bless it. 
32

F. International Cases

The United States Supreme Court has established that in interpreting the

language of treaties, “we find the opinions of our sister signatories to be entitled to

considerable weight.” Air France v. Saks, 470 U.S. 392, 404, 105 S. Ct. 1338,

1345 (1985) (internal quotation marks and citations omitted). Although the

decisions of foreign courts are not essential to our analysis, our reasoning and

conclusions are in harmony with the majority of the courts of our sister signatories

that have addressed this treaty issue. 

Specifically, courts in the United Kingdom, Australia, South Africa, 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 courts have stressed the need for enforcement of custody orders (including

ne exeat clauses), the spirit of the Convention, and the desirability of uniformity in

ordering the return of children removed in violation of a ne exeat provision. See C.

v. C., 1 W.L.R. 654, 658 (Eng. C.A. 1989) (holding that a ne exeat right provided

the father with a measure of control over the child’s place of residence sufficient to

create a right of custody under the Hague Convention); In the Marriage of: Jose

Garcia Resina Appellant/Husband and Muriel Ghislaine Henriette Resina

Respondent/Wife, [No. 52] (1991) (Austl. Fam.),¶ 26 (adopting the approach of C.
33

v. C. based on (1) the desirability of uniformity among common law countries, and

(2) its view that return of a child removed in violation of a ne exeat order is the

“result which is in conformity with the spirit of the Convention which is to ensure

that children who are taken from one country to another wrongfully, in the sense of

breach of court orders or understood legal rights, are promptly returned to their

country so that their future can properly be determined within that society”);

Sonderup v. Tondelli, 2000(1) Constitutional Court of South Africa 1171, ¶ 25

(CC) (holding that the mother, who had custody under a British Colombia order,

was effectively entitled to exercise her custody rights only in British Colombia

(save an authorized period), and her failure to return the child to British Colombia

as required under the order was a breach of the conditions of her custody as well as

the father’s rights); C.C. (T.A.) 2898/92, Foxman v. Foxman ,1992 (H.C.) (Isr.)

(concluding that the term “custodial rights” under the Hague Convention should be

broadly construed to include cases in which parental consent is required to remove

a child from the country of residence). 

The English Court of Appeal has also suggested that under some

circumstances a court entering the custody order in the child’s country of habitual

residence may itself have custody rights that are violated by the removal of the

child without the court’s consent. B. v. B., 3 W.L.R. 865 (Eng. C.A. 1993). All
34

E.R. 144 (C.A.) (Eng.) (noting that under Article 3 an “institution or other body”

may hold custody rights, and determining that removal of the child from a court’s

jurisdiction could violate the court’s custody rights).

We acknowledge that foreign courts have not unanimously agreed with our

decision here. Canadian and French courts have taken the opposite position,

concluding that removal of a child in violation of a ne exeat right does not

constitute wrongful removal under the Hague Convention. However, the decisions

of the English, Australian, South African, and Israeli courts cited 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 Canadian

Supreme Court’s suggestion on two occasions that a ne exeat right falls short of a

custody right has been dicta both times. Thomson v. Thomson, [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

determination, but noting in dicta that the return remedy would be unavailable in

the context of a final order because the purpose of such an order was simply to

protect access rights); D.S. v. V.W. [1996] 2 S.C.R. 108 (Can.) (holding that a

return remedy was not available for violation of an implicit removal restriction, and

stating in dicta that such a violation would concern only access rights, not custody
13We note that the French court’s decision has been correctly criticized by the dissent in

the Second Circuit case of Croll v. Croll, 229 F.3d 133 (2d Cir. 2000). As noted by the Croll

dissent, 

[D]eciding a Hague Convention case on the ground that the custodial parent must

remain free to expatriate her child begs the crucial interpretative question of who, for

purposes of the Convention, are ‘custodial parents’ in the first place. Nothing in the

Convention suggests that one parent’s right to expatriate overrides another parent’s

rights of custody. On the contrary, the paramount importance the Convention places

on custodial rights suggests that where custodial rights and expatriation rights

conflict, the latter must yield to the former. 

Id. at 152 (Sotomayor, J., dissenting).

35

rights). At least one French court has refused to order return of children to the

United Kingdom because it viewed the custody order requiring that the mother

raise her children in England and Wales as an impermissible restriction on the

mother’s right to expatriate. T.G.I. Periguex, Mar. 17, 1992, Ministere Public v.

Mme. Y., D.S. Jur. 1992 (Fr.). We view as misguided the French court’s focus on

the mother’s right to expatriate rather than the issues of custody set forth in the

Hague Convention.13

G. Other Circuits

Our conclusion today diverges from those of the Second, Fourth, and Ninth

Circuits. The seminal United States Circuit Court case on the issue is Croll v.

Croll, 229 F.3d 133 (2d Cir. 2000). The Fourth and Ninth Circuits essentially

adopted the Croll majority’s reasoning, as did the district court in this case. See

Fawcett v. McRoberts, 326 F.3d 491, 500 (4th Cir. 2003), cert. denied 124 S.Ct.
14At least one state court has determined, as we do, that custody rights are created by ne

exeat clauses. See Janakakis-Kostun v. Janakakis, 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 powerful Croll dissent in disagreeing with the majority’s

conclusions.14

 We first review the facts in Croll. 

In Croll, Mrs. Croll removed her daughter Christina from Hong Kong to the

United States in violation of her custody agreement with Mr. Croll. Croll, 229 F.3d

at 135. Mr. Croll filed an ICARA petition seeking Christina’s return to Hong

Kong. Id. Under their agreement, Mrs. Croll maintained sole “custody, care, and

control” of Christina, and Mr. Croll had a right of “reasonable access.” Id. The

agreement also provided that Christina “not be removed from Hong Kong until she

attains the age of 18 years” without leave of court or consent of the other parent. 

Id. The district court concluded that this ne exeat clause created rights of custody

under the Convention and granted Mr. Croll’s petition. 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 determine the child’s place of residence, but

only a limitation on Mrs. Croll’s right to determine the child’s place of residence;

(2) that his ne exeat right could not be exercised absent removal; and (3) that the

history and drafters’ intent of the Hague Convention supported the view that a ne
37

exeat right is not custodial. Id. at 137-143. Our case involves Norwegian law and

is different from Croll because Plaintiff Furnes’s ne exeat right must be considered

in the context of his additional decision-making rights by virtue of his joint

“parental responsibility” under Norwegian law. In any event, we believe the Croll

majority’s analysis of the ne exeat right is flawed for several reasons.

1. Ne Exeat Right Is Not A Mere Limitation

In reaching its view that the ne exeat right was only a limitation, the Croll

majority relied in part on how the particular agreement in Croll gave Mrs. Croll the

sole “custody, care, and control” of the child, and thus the sole right to determine

Christina’s place of residence within Hong Kong. Id. at 139-40. However, the

Convention specifically provides that a custody right may be exercised either

jointly or alone. 

In this case, it is clear that Plaintiff Furnes did not have the right to

determine alone the place of Jessica’s residence. However, neither did Defendant

Reeves. Rather, Furnes and Reeves each possessed elements of that place-ofresidence right, which they exercised jointly. This fact is unchanged by the Croll

majority’s naked characterization of a ne exeat right as a “limitation” on the right

of the sole custodial parent rather than an independent right of the otherwise noncustodial parent. Indeed, we could also characterize Defendant Reeves’s right to
15As aptly stressed by the Croll dissent, 

The Hague Convention provides a remedy not when a parent moves the child from

city to suburb or from home to boarding school, but when he or she transports the

child across national borders. In 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 specific living arrangements,

constitutes a “right to determine the child’s place of residence” 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 residence within Norway as a mere

“limitation” (albeit a more expansive one) on Plaintiff Furnes’s right to keep his

daughter near him. The more natural characterization, however, is that Defendant

Reeves and Plaintiff Furnes share a divided right to determine Jessica’s place 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 residence.15 Our

analysis is also consistent with the concept of “joint parental responsibility”

recognized under Norwegian law. In contrast to the agreement in Croll, the

Agreement here granted Plaintiff Furnes joint parental responsibility, which under

the Norwegian Children Act granted Furnes the right to share decision-making

authority with Reeves. See Children Act, §§ 30, 35b, 43. 

2. A Ne Exeat Right Can Be Exercised Without Wrongful Removal

The Croll majority’s conclusion was equally informed by its reasoning that

the ne exeat clause did not create a right that Mr. Croll could have exercised absent
39

Christina’s removal, as required for return under Article 3 of the Convention. 

Accordingly, the Croll majority concluded that the rights created by the ne exeat

clause could not constitute rights of custody under the Convention. Croll, 229 F.3d

at 140. 

The problem with the majority’s reasoning, in our view, is that it incorrectly

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

exeat clause and requests the non-custodial parent’s consent to move abroad with

the child. Here, for example, if Defendant Reeves had sought Plaintiff Furnes’s

consent to Jessica’s moving abroad – as she was required by Norwegian law to do

prior to relocating – Furnes would have had the opportunity to exercise his ne exeat

right by granting or withholding consent. Accordingly, the ne exeat right is

capable of being exercised in the absence of wrongful removal. Indeed, it is likely

that Plaintiff Furnes would have exercised his ne exeat rights in the absence of the

wrongful removal.

3. Purpose and Drafters’ Intent

We also do not share the Croll majority’s concern that if a ne exeat clause

alone conferred “rights of custody” upon a parent, a court could be compelled to

return a child to a parent “who lacks the right or responsibility to give care or to
16In further support of its conclusion with regard to the drafters’ intent, the Croll majority

noted that the chair of the Hague Conference Commission that drafted the Convention has

written that the right to veto relocation does not amount to the type of custody right contemplated

in Article 3, as follows:

[B]reach of a right simply to give or to withhold consent to changes in a place 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 widened to cover this

case was not pursued.

Id. at 141 (quoting A. E. Anton, The Hague Convention on International Child Abduction, 30

Int’l & Comp. L.Q. 537, 546 (1981)). However, as the Croll dissent correctly noted, the above

quote represents the view of Mr. Anton alone and not necessarily the approach of the

Convention. 

We further point out that the legislative history and legal scholarship are divided and

none is authoritative. For example, during the debate on various proposals at the final diplomatic

conference on the Convention in October of 1980, the following hypothetical 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

jurisdiction without such consent, that constitutes wrongful removal.

Silberman, Linda, Patching Up the Abduction Convention: A Call for a New International

40

decide who should give it, or even to a parent with access who has been found unfit

to have custody.” Id. at 141. The custody order in Croll placed all burdens of care

and custody on Mrs. Croll, and the Croll majority feared that an order returning

Christina to Mr. Croll would effectively transfer custody of Christina to a parent

with no corresponding duty to provide for her. Id. The Croll majority stressed that

the Convention’s goal is to enforce custody rights – not to alter them by ordering

return of a child to a non-custodial parent. Id. On that basis, the majority

concluded that a rule requiring return for violation of a ne exeat clause would make

the Convention unworkable and could not accurately reflect the intent of the

drafters. Id. at 140-41.16
Protocol and a Suggestion for Amendments to ICARA, 38 Tex. Int’l L.J.41, 46 n.34 (2003)

(quoting Hague Conference on Private International Law, Acts and Docu ments, III Actes et

Documents de la Quatorzieme Session, Oct. 6-25, 1980, AT 266 (1980)). Some scholars have

cited the above hypothetical and these statements in support of the view that ne exeat rights

clearly constitute rights of custody. The comments of other representatives at the Convention

have been cited in further support, as follows:

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. van Boeschoten saw no need to revise the present Article 3 to deal more

expansively with rights of access. Mr. Eekelaar, observer for the Commonwealth

Secretariat, also expressed the view that a non-custodial parent with a right to be

consulted about relocation would be covered in the present definition under Article

5.

Id. 

41

We are unpersuaded by this analysis as well. First, this feared result 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 not alter the terms of the custody agreement. Rather, it simply would

inconvenience Mrs. Croll as the custodial parent by requiring that she comply with

its terms. The Convention’s purpose is to prevent the international abduction of

children and is thwarted, not satisfied, by the Croll majority’s construction of the

ne exeat right.

In any event, the particular fears expressed by the Croll majority – that a

child could be returned to a parent with no duty or ability to care for the child – are
17As the Croll dissent notes, 

[T]he majority contends that ‘rights of custody,’ as used in the Convention, refers to

a ‘bundle of rights’ of which a parent must possess a certain portion in order to be

protected by the Convention, and that possession of only one of those rights – in this

case, the ‘right to determine the child’s place of residence’ by exercising and

leveraging a veto power over the child’s international relocation – is insufficient to

confer custody on the party possessing that power. . . . The Convention contains no

indication that in such an arrangement, a parent must possess some minimum number

of rights of custody in order to qualify for protection. 

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

18As pointed out in the Croll dissent, 

[T]he majority’s characterization 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 parents trade physical custody or in which one

parent possesses physical custody and the other parent contributes to decisions about

the child’s upbringing. By the majority’s reasoning, were the parent with physical

custody to remove the child from the country of habitual residence, the court would

have no power to return the child, because no adult would be required to care for him

or her upon return. Such a conclusion, however, would largely eviscerate the

42

missing from this case. Plaintiff Furnes has ongoing duties under § 30 of the

Children Act, among others, to provide care and consideration to Jessica. Indeed,

the Bergen City Court determined that Furnes was better able than Reeves to

provide for and care for Jessica. The Croll majority’s fears are at best unique to the

particular facts in that case and not present here. 

Further, the Hague Convention requires return of the child to a parent who

possesses a single right of custody – even a joint right – that is violated by the

child’s removal.17 The necessary implication of the Convention’s terms is that a

child may sometimes be returned to a parent who has not previously possessed

primary physical custody.18 We also note that the Convention provides an
Convention’s protection of joint custody rights. 

Id. at 149 (Sotomayor, J., dissenting).

19Defendant Reeves does not assert that there is a grave risk that Jessica’s return to

Norway would expose her to physical or psychological harm or otherwise place her in an

intolerable situation. See supra note 8.

43

exception to the mandatory-return rule where return would be particularly

damaging for any reason, including, presumably, the malfeasance or nonfeasance

of the parent 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 return would expose the child to physical or psychological harm or

otherwise place the child in an intolerable situation.”19

 Id. Thus, the Croll

majority’s concern is already taken into account by Article 13(b) of the Hague

Convention. There is no need to diminish the nature of the ne exeat right.

H. Rights That Were Actually Exercised Or Would Have Been Exercised

Having determined that Plaintiff Furnes has “rights of custody” under the

Hague Convention, we now examine whether Plaintiff Furnes has shown that his

rights were “actually exercised, either jointly or alone, or would have been so

exercised but for the removal or retention.” Convention, Art. 3(b). We conclude

that he has.

With regard to Plaintiff Furnes’s rights under § 30 of the Children Act, the

district court found that Furnes was exercising his rights of joint parental
44

responsibility in Norway prior to Jessica’s removal to the United States. No

indication in the record suggests otherwise. On appeal, Defendant Reeves does not

assert that Plaintiff Furnes was not actually exercising his rights at the time of

Jessica’s removal from Norway.

Further, it is clear that Plaintiff Furnes would have exercised his custody

rights under the ne exeat clause in § 43 but for Jessica’s removal. Under

Norwegian law, Defendant Reeves was bound to seek Plaintiff Furnes’s consent

prior to relocating outside Norway with Jessica. Had Reeves complied with that

obligation, Furnes would have exercised his right by either consenting to the

relocation (with or without conditions) or withholding consent. Accordingly, we

conclude that Furnes would have exercised his rights under the ne exeat clause but

for the removal, as required by Article 3(b) of the Convention. We now turn to

Reeves’s two affirmative defenses.

I. One-Year Limitation Period

Reeves asserts that Plaintiff Furnes’s petition was not timely filed because 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 court, however, did

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 has
20Because the district court concluded that Furnes’s petition was timely filed, the district

court did not address the issue of whether Jessica was settled in her new environment.

45

been wrongfully removed unless the respondent shows that the petition for return

of the child was filed more than one year from the date of the wrongful removal or

retention. Convention, Art. 12. Even if the petition has been filed more than one

year after the abduction, a court is required to order return unless the respondent

also shows that the child has become settled in his or her new environment.20

 Id. 

Here, Plaintiff Furnes filed his petition more than one year after Jessica’s

removal. Reeves moved to the United States with Jessica in the summer 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 Jessica, and determined that the petition was filed within one year of

Furnes’s locating Jessica. Accordingly, the district court concluded that the

petition 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 seeking return. See Mendez Lynch v. Mendez Lynch, 220

F. Supp.2d 1347,1362-63 (M.D.Fla. 2002) (holding that equitable tolling applied to

ICARA petitions because otherwise “a parent who abducts and conceals children
46

for more than one year will be rewarded for the misconduct by creating eligibility

for an affirmative defense not otherwise available”); see also Ellis v. General

Motors Acceptance Corp., 160 F.3d 703, 706 (11th Cir. 1998) (“Unless Congress

states otherwise, equitable tolling should be read into every federal statute of

limitations.”); Young v. United States, 535 U.S. 43, 122 S. Ct. 1036, 1040 (2002)

(“It is hornbook law that limitations periods are customarily subject to equitable

tolling, unless tolling would be inconsistent with the text of the relevant statute.”)

(citations and internal quotation marks omitted). Accordingly, we conclude that

the one-year period of limitations began from the date that Plaintiff Furnes

confirmed Jessica’s location in the United States, in March 2002 at the earliest. 

See Bocquet v. Ouzid, 225 F.Supp.2d 1337, 1348 (S.D. Fla. 2002) (concluding in

ICARA case that one-year limitation period did not begin until date petitioner

confirmed the child’s residence in the United States). 

We also conclude that the district court did not err in applying equitable

tolling given the facts found by the district court in this case. For example, the

district court accepted Plaintiff Furnes’s testimony regarding Defendant Reeves’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 filed by Furnes accurately summarized his efforts to locate his daughter. 
21We recognize that Reeves argues that she disclosed her and Jessica’s whereabouts, but

the district court accepted Furnes’s version of the facts, not hers. We will not disturb the district

court’s credibility determinations. See, e.g., United States v. McPhee, 336 F.3d 1269, 1275 (11th

Cir. 2003) (“[W]e allot substantial deference to the factfinder, in this case, the district court, in

reaching credibility determinations with respect to witness testimony” (internal quotation marks

and citations omitted)).

47

The district court’s factual findings are not clearly erroneous.21

 See Lops, 140 F.3d

at 935 n.6. 

J. Consent or Acquiescence

As her second affirmative defense, Reeves contends that Furnes “consented

to or subsequently acquiesced” in Jessica’s removal from Norway. Convention,

Art. 13(a); 42 U.S.C. § 11603(e)(2)(B). The district court also did not clearly err in

its factual finding that Plaintiff Furnes did not acquiesce in Jessica’s relocation. 

The district court accepted Plaintiff Furnes’s testimony that he took repeated and

extensive actions to locate his daughter. As noted by the district 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 United States.” 
48

IV. CONCLUSION

We conclude that Jessica was wrongfully removed or retained from Norway

by Defendant Reeves in violation of Plaintiff Furnes’s rights of custody under the

Hague Convention; that Furnes was exercising those rights or would have

exercised them but for the removal or retention of Jessica; that Furnes’s ICARA

petition for return of Jessica was timely filed; that Furnes did not consent to or

acquiesce in Jessica’s removal or retention in the United States; and that the district

court erred in denying Furnes’s petition for the return of Jessica to Norway.

For the foregoing reasons, we reverse the district court’s denial of Plaintiff

Furnes’s ICARA petition and remand this case with instructions. On remand, 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 days following the issuance of the mandate of this Court. If Defendant

Reeves refuses to comply with the order, then Defendant Reeves shall relinquish

Jessica to Plaintiff Furnes at a time and at a location in the United States

Courthouse for the Northern District of Georgia, Atlanta, Georgia, to be determined

by the district court or at such other place as determined by the district court, and

Plaintiff Furnes may then transport and return Jessica to Bergen, Norway. Once

Jessica is returned to Bergen, Norway, the parties’ rights are governed under their
49

Agreement and Norwegian law. On remand, 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. We conclude the district court in the first instance

should determine the amount of attorney’s fees and costs.

REVERSED AND REMANDED.