2007 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-22-2007

Yang v. Tsui

Precedential or Non-Precedential: Precedential

Docket No. 06-3962

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 06-3962

 

TSAI-YI YANG

v.

FU-CHIANG TSUI,

 Appellant

 

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 03-cv-01613)

District Judge: Honorable Thomas M. Hardiman

 

Submitted Under Third Circuit LAR 34.1(a)

May 16, 2007

Before: FISHER, NYGAARD and ROTH, Circuit Judges.

(Filed: August 22, 2007)

Andrew D. Glasgow

AAI Law Firm

239 Fourth Avenue

Investment Building, Suite 1207
1

The implementing statute is the International Child

Abduction Remedies Act (“ICARA”), 42 U.S.C. 11601, et. seq.

2

Pittsburgh, PA 15222

Attorney for Appellant

Walter A. Angelini

Angelini & Angelini

3067 Pennsylvania Avenue

Weirton, WV 26062

Attorney for Appellee

 

OPINION OF THE COURT

 

FISHER, Circuit Judge.

Fu-Chiang Tsui (“Tsui”) appeals the District Court’s

grant of the Child Return Petition (“Petition”) filed by Tsai-Yi

Yang (“Yang”) pursuant to the Hague Convention on the Civil

Aspects of International Child Abduction (“Hague

Convention”), Oct. 25, 1980, T.I.A.S. No. 11,670, 19 I.L.M.

1501.1

 Tsui claims that the District Court erred in its

determinations that Tsui wrongfully retained Raeann Tsui

(“Raeann” or “the child”) and that Raeann should be returned to

Canada despite the “wishes of the child” exception. We

disagree, and for the reasons that follow, will affirm the District

Court’s judgment.
2

The parties disagree on what month Yang moved in, but

the disagreement does not impact our analysis in this case.

3

Raeann is a United States citizen.

3

I.

Although Yang and Tsui have known each other since

they were children in Taiwan, our focus is on the events that

occurred after they both moved to Pittsburgh. Tsui attended the

University of Pittsburgh and earned a Ph.D. in Electrical

Engineering in 1997. Yang arrived in Pittsburgh in 1994, a few

years after Tsui. She also attended the University of Pittsburgh

where she earned a Master’s of Science in Information Science

in 1995.

Tsui was married and had a child around the time of

Yang’s arrival in Pittsburgh. However, a romance ensued

between him and Yang in 1995, and Yang became pregnant.

Tsui and his mother invited Yang to move in with their family,

which included Tsui’s wife and child. Yang accepted the offer

and moved in with the family sometime before she gave birth in

1996.2

Yang gave birth to Raeann on June 11, 1996, in

Pittsburgh.3

 Yang and Raeann lived with Tsui and his family

until December 1996. At that time, Tsui, Yang and Raeann

went to Taiwan. Tsui only stayed for two weeks, but Yang and

Raeann remained for five or six months. Yang and Raeann then

returned to Pittsburgh where they lived with Tsui and his
4

Tsui’s wife had returned to Taiwan after a disagreement

with Tsui.

4

mother.4

 In August 1997, Yang and Raeann traveled to Taiwan

for a funeral and because Yang’s visa was about to expire.

Although Yang did not initially intend to move to Taiwan at that

time, she and Raeann remained there for four years.

Yang wanted to maintain the relationship with Tsui by

telephone and although they spoke once a month, he did not

want to continue the relationship. Raeann was too young to

communicate with Tsui by telephone. Tsui also traveled to

Taiwan on several occasions. However, despite knowing where

Yang and Raeann resided, he did not visit them. Yang claims

that he also provided no financial support for Raeann during this

time period. However, Tsui claims to have given Yang

approximately $6,000 while she and Raeann were in Taiwan.

In 2000, Yang decided to immigrate to Canada with

Raeann. Yang was unable to return to the United States and she

believed that the clean air in Canada would help a skin condition

that Raeann had developed. Tsui claims, however, that Yang

actually was trying to move closer to him.

In July 2000, Yang went to Canada for several days in

order to activate her visa, but then returned to Taiwan to prepare

for the move. Yang and Raeann moved to Surrey, British

Columbia. Yang was unable to find a job in her field, but she

obtained a part-time position at McDonald’s. Although Yang

provided primary care for Raeann, she had some assistance from
5

friends and neighbors. She enrolled Raeann in kindergarten in

September 2001.

Additionally, at Yang’s request, Tsui started providing

financial support for Raeann. He gave Yang approximately

$6,000, a computer, and other gifts. Yang and Tsui maintained

contact by telephone and email on at least a monthly basis.

Although Tsui and Raeann’s contact remained limited, he gave

Yang a digital camera to enable her to send him pictures of

Raeann.

Yang became ill in August 2001, and was diagnosed with

malignant thymoma in September 2002. The tumor was in her

chest and caused Yang to suffer from myasthenia gravis, a

condition which resulted in muscle weakness in her chest and

neck. Additionally, the tumor caused her difficulty in speaking

and swallowing. Yang’s doctor explained that the tumor had to

be removed, which would require major surgery. The doctor

anticipated that she would be hospitalized for seven to ten days,

and that Yang would be unable to work during the two to three

month recovery period.

Yang turned to Tsui for help with Raeann during the

surgery and recovery period. In an email dated October 9, 2002,

Yang told Tsui: “[i]t would be better if you can pick up and

take care of Raeann. I can’t work for at least two and a half

months . . . if anything happens to me, at least you can still raise

Raeann.” Although at first resistant to have Raeann move in
5

At this point, Tsui had reconciled with his wife, and they

resided in Pittsburgh with their two sons.

6

Raeann had not seen her father since August 1997.

6

with his family,5

 Tsui finally agreed to come to Surrey and bring

Raeann with him to Pittsburgh. As Tsui was picking Raeann up

in mid-October, he recommended having her remain in

Pittsburgh until the end of the school term. Yang agreed, but

when doing so she did not know that the school term in

Pittsburgh did not end until late January.

The same day that Yang entered the hospital, October 23,

2002, she sent Tsui an email. The email explained the she

packed up Raeann’s belongings in three bags. The bags

included winter clothes, summer clothes, shoes, and toys. She

also stated that some of the items may be unnecessary. The

email contained the following postscript: “Raeann doesn’t like

long sleeves.” Tsui arrived in Canada on October 26, 2002, and

Yang’s friend who had been watching Raeann met him at the

airport. The friend took Tsui and Raeann to see Yang at the

hospital where she was recovering from her surgery which took

place on October 24, 2002.6

 Yang gave Tsui documentation to

enable him to register Raeann in school and to travel with him

to the United States. Tsui maintains that there was no

agreement that Raeann would stay with him for a set period of

time. He claims that there was no limit on how long Raeann

would remain in Pittsburgh, but rather the agreement was that

Raeann would remain in Pittsburgh until Yang fully recovered.

It is undisputed that the parties agreed that Raeann would reside
7

Tsui admits that Yang expected to recover fully within

two or three months. However, he claims, based in part on his

knowledge of the condition because of his work in the medical

field, that he knew Yang’s condition was serious and that the

recovery would be longer than Yang expected.

7

permanently with Tsui if Yang died.7

 Tsui and Raeann traveled

to Pittsburgh on October 27, 2002, and Tsui gave Yang $1,000

before he left.

After Yang was discharged from the hospital on

November 2, 2002, she spoke to Raeann daily by telephone.

However, Tsui’s wife felt that daily telephone calls were

burdensome to their family and thus Tsui limited the calls to

every other night. According to Yang, Raeann was homesick

and wanted to return to Canada. Yang told Tsui to bring Raeann

back to Canada and even offered to come to Pittsburgh to get

her. She threatened legal action if he refused. Tsui claims,

however, that Yang did not request that he return Raeann until

April 2003, when he received a letter from Yang’s attorney,

Andrew Sandilands (“Sandilands”).

On November 20, 2002, Yang intended to travel to

Pittsburgh to bring Raeann back. She was unable to make the

trip, however, because she had difficulty breathing and went to

the emergency room. Apparently, Yang’s medical problems

remained and she was admitted to the Intensive Care Unit

(“ICU”) on November 22, 2002. She was in the ICU for one

week, and remained in the hospital until December 28, 2002.

Although Yang was unable to speak, others contacted Tsui on

her behalf. A social worker at the hospital spoke to Tsui who
8

indicated that he would bring Raeann to Canada if Yang’s

condition worsened. Tsui also told Yang’s brother and her

friend that he would bring Raeann back in December.

On December 2, 2002, Yang was able to speak, although

with great difficulty. On that day, she spoke with Tsui as she

was worried that he did not intend to return Raeann. Tsui

assured Yang that he would return Raeann at the end of January

when the school term ended. Tsui then took Raeann on vacation

without informing Yang that they were going away, and she was

concerned when she could not reach them for several days.

However, Tsui did send Yang pictures of Raeann in the middle

of December.

On December 17, 2002, the day before the pictures

arrived, a package addressed to Yang arrived at her friend’s

house. The package contained a “Complaint for Custody,” filed

in Pennsylvania state court on December 11, 2002. It also

included an “Order for Generations Education/Mediation

Seminar,” which is a service offered by the Court of Common

Pleas of Allegheny County for parents involved in custody

disputes. According to the Order, Yang was to attend a

mandatory seminar in Pittsburgh on January 4, 2003, and a

mediation session on February 11, 2003.

Yang was unable to attend the seminar due to her health.

After her release from the hospital, she underwent twenty

sessions of radiation therapy. Although she contacted the

“Generations” office to explain that she would be unable to

attend the seminar, neither she nor her attorneys contacted the

Pennsylvania courts or appeared at the seminar or mediation.
9

According to Yang, after she spoke with the “Generations”

office, she believed that the proceedings were adjourned.

However, the proceedings were not adjourned and Tsui received

a court order on February 6, 2003, which granted him custody

of Raeann. The order included a proposed visitation schedule,

but Yang never agreed to the schedule.

Yang hired Sandilands upon receipt of the Complaint for

Custody. On January 6, 2003, Sandilands sent a letter to Tsui

demanding Raeann’s immediate return. He also initiated

custody proceedings in Canada. The Canadian proceedings

consisted of five hearings and continued from January to

March 11, 2003. Yang attended every hearing, except for the

first one. Tsui appeared only through counsel, who represented

him at all of the hearings except for the first one. On March 25,

2003, the Supreme Court of British Columbia granted interim

custody of Raeann to Yang. Based on the decision, Sandilands

again sent a letter requesting that Tsui return Raeann. Tsui

claimed that this was the first formal request that he received to

return Raeann to Canada.

In May 2003, as Raeann was still residing with Tsui,

Sandilands filed an application with the Canadian Attorney

General’s Office seeking to have Raeann returned under the

Hague Convention. Yang filed a petition under the Hague

Convention in the United States District Court for the Western

District of Pennsylvania on October 23, 2003. The District

Court initially abstained from exercising jurisdiction. The

decision was appealed and oral argument was held before this

Court in Philadelphia in September 2004. On appeal, this Court

reversed the District Court’s judgment and remanded the case
8

While in the United States, Yang also attempted to see

Raeann at Tsui’s home and Raeann’s school. She even went to

the homes of some of Tsui’s neighbors in order to try to see

Raeann and to leave her gifts. At trial, Tsui claimed that Yang

left threatening message’s on the answering machine at his

home, and even followed his wife’s car. Tsui sought and

obtained a Protection From Abuse Order (“PFA”) from the

Court of Common Pleas of Allegheny County. The PFA, issued

on October 8, 2004, prohibited Yang from seeing or speaking

with Raeann without Tsui’s permission. Yang was served with

the PFA when she returned to Canada. Under the PFA, Yang’s

contact with Raeann was very limited, and she was eventually

allowed to talk to Raeann twice a week for a half-hour.

10

for further proceedings. Yang v. Tsui, 416 F.3d 199, 205 (3d

Cir. 2005) (“Yang I”). Yang traveled to the United States for the

oral argument, and this was the first time she had seen Raeann

since October 2002.8

Yang returned to Pittsburgh in November 2005 and

sought a visitation schedule. As the parties could not reach an

agreement, Yang filed a motion requesting that the District

Court help establish a schedule. Yang was granted visitation

with Raeann three times a week for several hours. The visits

occurred at the District Court’s chambers during the week and

at an alternative location on the weekend.

The District Court held a hearing on the merits at which

the parties and other witnesses testified. It also conducted an in

camera examination of Raeann. During the examination,

Raeann testified that she wanted to remain in Pittsburgh. The
11

District Court issued a written Opinion and Order on August 25,

2006, in which it granted Yang’s Petition.

In its Opinion, the District Court began its analysis by

determining that November 20, 2002, was the date of retention

in this case. This factual determination was based on the

parties’ testimony and Tsui’s admission that Yang demanded, in

mid-November, that Tsui return the child. The District Court

then turned to the issue of the child’s habitual residence.

Because Raeann was only five years old when she left Canada,

the District Court found that she was too young to possess an

intent regarding her habitual residence. Therefore, the District

Court turned its focus to the parents and whether they both

intended to make Pittsburgh Raeann’s home immediately prior

to November 20, 2002. The District Court held that the

overwhelming evidence in this case demonstrated that the

parties only intended for Raeann to stay with Tsui for two or

three months until Yang recovered. Tsui and Yang only

intended for Pittsburgh to become Raeann’s home if Yang

passed away because of her illness. Based on these facts, the

District Court determined that Canada was Raeann’s habitual

residence on November 20, 2002.

The next factor for the District Court to consider was

Yang’s custody rights at the time of retention. As such a

determination is based on the custody laws of the country in

which the child resided at the time of removal, both parties

called expert witnesses to testify about the custody law of

British Columbia. The District Court held that under British

Columbia law Yang had custody of Raeann on November 20,

2002, because Raeann usually resided with Yang. The District
9

The District Court also determined that no other

exception applied. As Tsui does not appeal that determination,

it is unnecessary for us to address the other exceptions.

12

Court also found that Yang was exercising her custody rights at

the time of retention. Therefore, the District Court held that

Yang had satisfied her burden under the Hague Convention of

proving that the child was wrongfully retained.

Based on its determination, the Hague Convention

required the District Court to order that Raeann be returned to

Yang unless an exception applied. As the burden to prove that

an exception applies was on Tsui, the District Court had to

determine whether he had met his burden of proving the

applicability of the “wishes of the child” exception.9

 It believed

that any objection that Raeann had to returning to Canada was

based on Tsui’s wrongful retention. The District Court refused

to apply the exception because its application in such a situation

would frustrate the purpose of the Convention. The District

Court also explained that even if this was an appropriate case for

the exception, Tsui had not met his burden of proving that

Raeann was of sufficient age and maturity for her views to be

taken into account. Further, the Court found that Raeann’s

views has been formed by outside influence. Additionally, her

reasons for staying, which included comfortable living

conditions and friends, were not sufficient to satisfy the

requirements for the exception. Therefore, the District Court

concluded that even if the exception could apply to this case, the

requirements for its application were not met.
10Both the United States and Canada are Contracting

States.

13

As Tsui did not prove that an exception applied, the

District Court granted Yang’s Petition and ordered that Tsui

return Raeann to Yang by September 5, 2006. Tsui then filed

this timely appeal.

II.

The District Court had jurisdiction pursuant to 28 U.S.C.

§ 1331 and 42 U.S.C. § 11603(a). We have jurisdiction over

this appeal pursuant to 28 U.S.C. § 1291. We review the

District Court’s factual findings for clear error, but our review

of its conclusions of law is plenary. See Whiting v. Krassner,

391 F.3d 540, 546 (3d Cir. 2004). We will not reverse the

District Court’s factual findings as long as its “account of the

evidence is ‘plausible in light of the record,’ even if convinced

that we ‘would have weighed the evidence differently.’”

Karkkainen v. Kovalchuk, 445 F.3d 280, 289 (3d Cir. 2006)

(quoting Anderson v. City of Bessemer, 470 U.S. 564, 574

(1985)).

III.

The two main goals of the Hague Convention are “to

secure the prompt return of children wrongfully removed to or

retained in any Contracting State,” and “to ensure that rights of

custody and of access under the law of one Contracting State are

effectively respected in the other Contracting State.” Hague

Convention, art. 1.10 It is well settled that the Convention was
14

not designed to resolve international custody disputes. See, e.g.,

Karkkainen, 445 F.3d at 287. Rather, the Convention was

designed “to restore the status quo prior to any wrongful

removal or retention, and to deter parents from engaging in

international forum shopping in custody cases.” Id.

A person claiming that a child has been wrongfully

removed to or retained in the United States can commence

judicial proceedings under the Convention by filing a petition

for the return of a child in a state or federal court which has

jurisdiction where the child is located. 42 U.S.C. § 11603(b).

In order for the petition to be granted, the petitioner must prove

by a preponderance of the evidence that the removal or retention

was wrongful. Article 3 of the Convention defines the removal

or retention of a child as wrongful when:

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.

Hague Convention, art. 3. Further, “[a] petitioner cannot claim

that the removal or retention of a child is ‘wrongful’ under the

Hague Convention unless ‘the child to whom the petition relates

is “habitually resident” in a State signatory to the Convention
11In this case, as discussed below, Tsui argues the

“wishes of the child” exception applies to this case. Hague

Convention, art. 13. Therefore, Tsui’s burden is to show by a

preponderance of the evidence that this exception applies. See

42 U.S.C. § 11603(e)(2)(B).

15

and has been removed to or retained in a different state.’”

Karkkainen, 445 F.3d at 287 (quoting Gitter v. Gitter, 396 F.3d

124, 130 (2d Cir. 2005)) (emphasis in Karkkainen).

We have laid out four questions that must be answered in

a wrongful removal or retention case. Id. A court must

determine (1) when the removal or retention took place; (2) the

child’s habitual residence immediately prior to such removal or

retention; (3) whether the removal or retention breached the

petitioner’s custody rights under the law of the child’s habitual

residence; and (4) whether the petitioner was exercising his or

her custody rights at the time of removal or retention. Id.

The determination by a court that a child was wrongfully

removed or retained does not automatically mean that the child

must be returned to his or her habitual residence. Rather, once

the petitioner has proven his or her case, “the burden shifts to

the respondent to prove an affirmative defense against the return

of the child to the country of habitual residence.” Id. at 288

(internal quotation marks and citation omitted).11 “These

affirmative defenses are narrowly construed to effectuate the

purposes of the Convention, and even where a defense applies,

the court has the discretion to order the child’s return.” Id.

(internal citations omitted).
12Tsui does not appeal the District Court’s determination

that November 20, 2002, was the date of wrongful retention.

This finding is supported by the record, as November 20, 2002,

is the first time that Yang demanded that Tsui return Raeann,

and we will not disturb it. See Karkkainen, 445 F.3d at 290

(explaining that the date of wrongful retention begins when the

child remains with the respondent against the petitioner’s clearly

communicated desire to have the child returned).

16

On appeal, Tsui claims that the District Court erred in its

determinations of the last three questions in the wrongful

removal or retention analysis.12 Specifically, Tsui claims that

the District Court incorrectly found Canada to be Raeann’s

habitual residence immediately before her retention, that Yang

had custody rights, and that she was exercising them at the time

of the retention. Tsui also claims that the District Court should

not have ordered Raeann’s return to Canada as he met his

burden for proving the “wishes of the child” exception, which

would enable Raeann to remain in the United States even if she

was wrongfully retained.

A.

We first need to determine whether the District Court was

correct in its determination that Canada was Raeann’s habitual

residence immediately before the retention in this case. If we

hold that Canada was Raeann’s habitual residence on the date of

retention, we must then continue the analysis to determine

whether the retention was wrongful. Karkkainen, 445 F.3d at

291. But, if we hold that the United States was Raeann’s

habitual residence at that time, the analysis is complete as the
17

Hague Convention would not apply because her retention in the

United States would not be wrongful as defined by Article 3.

See id. Such a determination presents a mixed question of fact

and law. Id.

As we have said on several occasions, such a

determination is fact-intensive and “‘necessarily varies with the

circumstances of each case.’” In re: Application of Ariel Adan,

437 F.3d 381, 392 (3d Cir. 2006) (quoting Whiting, 391 F.3d at

546). A case such as this, where the petitioning parent had

consented to let the child stay abroad for an undetermined

period of time, is especially fact-intensive. Mozes v. Mozes, 239

F.3d 1067, 1077-78 (9th Cir. 2001).

We have defined habitual residence as “the place where

[the child] has been physically present for an amount of time

sufficient for acclimatization and which has a degree of settled

purpose from the child’s perspective.” Baxter v. Baxter, 423

F.3d 363, 369 (3d Cir. 2005) (internal quotation marks and

citations omitted). The inquiry focuses on the child, but also

must consider the “parents’ present, shared intentions regarding

their child’s presence [in a particular location].” Id. (internal

quotation marks and citations omitted); Karkkainen, 445 F.3d at

297 (explaining that courts must consider the parents’ present

shared intentions).

On the date of retention Raeann was five years old. The

District Court found, under the facts of this case, that a fiveyear-old is too young to have an intent regarding her habitual

residence. Although contrary to our finding in Whiting, where

we held that a four-year-old child is able to acclimate, it does
18

not change the propriety of the District Court’s finding as other

facts make this determination a correct one.

The record indicates that Raeann had only been in

Pittsburgh for a few weeks when the wrongful retention

occurred. Additionally, there is no evidence in the record to

suggest that any special circumstances existed which would

enable her to acclimatize quickly. Cf. Karkkainen, 445 F.3d at

295. In fact, the only evidence in the record is that Raeann

missed Yang, wanted to return to Canada, and that she was

enrolled in school in Pittsburgh. Based on this evidence, it

cannot be said that Raeann became “firmly rooted in her new

surroundings” prior to the date of retention. Id. at 292 (internal

quotation marks and citation omitted). Furthermore, neither

party argues that Raeann had acclimatized to Pittsburgh at the

time of retention, but rather even Tsui agrees that Raeann did

not possess an intent regarding her habitual residence. As there

is no evidence of acclimatization, that Raeann abandoned

Canada as her habitual residence, or that there was a degree of

settled purpose from Raeann’s point of view, we find that from

Raeann’s perspective Pittsburgh did not become her habitual

residence prior to the date of retention. See generally

Karkkainen, 445 F.3d at 293-96. In other words, the record

would not support a finding that Raeann had been physically

present in the United States for an amount of time sufficient for

acclimatization and which had a degree of settled purpose from

her perspective. See Feder, 63 F.3d at 224.

As the record does not reflect Raeann’s perspective on

her habitual residence, we must focus on the “parents’ present,

shared intentions.” Baxter, 423 F.3d at 369 (internal quotation
13In his Brief, Tsui states that his medical background

made him aware that Yang’s surgery and illness would require

19

marks and citations omitted). We have said that there can be a

change in the habitual residence of a child when the parents

have a settled purpose in moving the child even for a limited

period of time. See, e.g., Feder, 63 F.3d at 223. In order for a

purpose to be settled there must be “a sufficient degree of

continuity.” Id. (internal quotation marks and citation omitted).

Additionally, a child’s prior habitual residence must be

effectively abandoned by the shared intent of the parents for her

to acquire a new habitual residence. See Mozes, 239 F.3d at

1082; Whiting, 391 F.3d at 550 (explaining that acquiring a new

habitual residence implicitly requires the abandonment of the

prior habitual residence).

The District Court found that the agreement between the

parties was that Raeann would stay with Tsui only until Yang

recovered. It rejected Tsui’s argument that the parties intended

the stay to last until Yang fully recovered, which may have been

an extended period of time. Rather, the District Court found that

they anticipated that Yang would recover within two to three

months. The District Court’s finding is supported by the record.

First of all, Yang testified that she expected to recover within

two to three months. An email from Yang to Tsui reflected this

anticipation by saying that she would not be able to work for at

least two and a half months. Even though Tsui denied that there

was ever a conversation regarding the duration of Raeann’s stay

during direct examination, an affidavit he submitted in the

Canadian custody proceedings indicated that he was aware that

Yang expected to recover fully in a couple of months.13
a much longer period of recovery than she anticipated. This

knowledge, he claims, demonstrates that there was no shared

intent that the recovery would only take two to three months.

As there is nothing in the record that indicates he shared this

information with Yang, we find Tsui’s outside knowledge

irrelevant. The question is shared parental intent, and if Tsui did

not share this knowledge with Yang, by definition it offers no

insight into such shared intent.

14Additionally, because Raeann was five years old when

she traveled to the United States to stay with Tsui, she was not

what we have categorized as a very young child. See Whiting,

391 F.3d at 550-51 (providing that a four-year-old unlike an

infant can acclimatize). Therefore, the fact that “shared parental

intent that a very young child will reside in a new country, even

for a limited period of time, is sufficient to establish the child’s

habitual residence in that country,” does not apply to the present

case. Karkkainen, 445 F.3d at 296.

20

Therefore, the District Court’s determination is plausible in light

of the record.

The District Court’s finding also comports with the case

law. Even though the period was indefinite, it cannot be said

that the purpose of Raeann’s traveling to the United States

possessed “a sufficient degree of continuity to be properly

described as settled.” Feder, 63 F.3d at 223 (internal quotation

marks and citation omitted).14 Rather, the shared intent was that

Raeann would remain in the United States only as long as it took

Yang to recover, which was anticipated to be two to three

months. Additionally, there is no evidence that Yang and Tsui
21

intended for Raeann to abandon Canada as her habitual

residence. “[E]ven though the exact length of the stay was left

open to negotiation, the court is able to find no settled mutual

intent from which such abandonment can be inferred.” Mozes,

239 F.3d at 1082. The evidence simply does not demonstrate a

shared mutual intent to change Raeann’s habitual residence.

It is undeniable that Canada was Raeann’s habitual

residence before she went to stay with Tsui in the United States.

As there was no shared mutual intent by the parents for Raeann

to abandon that prior residence, we agree with the District

Court’s determination that Canada was Raeann’s habitual

residence immediately before she was retained by Tsui on

November 20, 2002. Therefore, Yang met her burden of

proving Raeann’s habitual residence.

Tsui’s arguments to the contrary are unpersuasive. First,

he claims that the facts do not support the District Court’s

finding. His claim is based in part on the fact that Yang packed

Raeann’s summer clothes for her trip to Pittsburgh. As

Raeann’s trip to Pittsburgh was during the winter, he claims that

this indicates that the intent was not limited to merely a two to

three month stay. The District Court dismissed the argument by

noting Yang’s email to Tsui explained that Raeann did not like

to wear long sleeves. On appeal, Tsui attacks the District

Court’s determination because the summer clothes included

shorts. However, Tsui ignores the fact that the email also stated

that some of the things that she packed were probably
15Tsui also points to the parties’ agreement that Raeann

would remain with Tsui if Yang died as evidence that they did

not agree that Raeann would only stay with Tsui for a couple of

months while Yang recovered. However, the agreement as to

what would happen upon Yang’s death was a different

agreement than the one at issue in this case. As the condition of

Yang’s death did not arise, that second agreement never came

into effect. What the parties intended if Yang did not survive

does not reflect what the parties intended during Yang’s

recovery period. If anything, the second agreement provides

further explanation as to why Yang packed summer clothes.

22

unnecessary.15 Even if we agreed with Tsui that this evidence

could support his argument, we will not reverse the District

Court’s finding because it is supported by the record. See

Karkkainen, 445 F.3d at 289 (internal quotation marks and

citation omitted).

He also points to the fact that Yang helped to enroll

Raeann in a Pittsburgh school and that she agreed that even if

she recovered sooner Raeann should complete the fall school

term in Pittsburgh. The fall term at the school Raeann attended

in Pittsburgh did not end until January, a fact which Yang

claims she did not learn until after the agreement was made.

Even if Yang knew that the term went until January, this is still

within two to three months of October, when Raeann began

residing with Tsui. Therefore, this fact does not actually help

Tsui as it does not contradict the District Court’s finding.

Secondly, Tsui attempts to analogize this case to

Karkkainen. Such an analogy is improper because the facts of
16Tsui’s reliance on case law from other jurisdictions

suffers from the same flaw. The other cases are factually

distinguishable. See, e.g., Koch v. Koch, 450 F.3d 703, 718 (7th

Cir. 2006) (holding Germany was children’s habitual residence

as parents moved there together with the shared intent to remain

for at least three years); In re Bates, No. CA 122-89, High Court

of Justice, Family Div’l Ct. Royal Courts of Justice, United

Kingdom (1989) (finding that two-year old’s habitual residence

changed based on parents’ intentions and overt actions,

including obtaining a place to stay). In both Koch and Bates, the

parents took steps together to change the habitual residence of

the children. That is simply not the facts of this case, and

therefore we are not guided by those decisions.

23

the two cases are too dissimilar, and as we have said these types

of cases are extremely fact-intensive.16 Our main focus in

Karkkainen was on the perspective of the eleven-year-old child

who we determined had become acclimatized in the United

States. 445 F.3d at 293-97. There is no such evidence in this

case. Additionally, the shared intent in that case was that the

child could determine, after spending the summer in the United

States, whether or not to remain permanently in the United

States. Id. at 297. Such a mutual intent is nothing like an

agreement that a child reside in Pittsburgh for a couple of

months until her mother recovered from surgery. Therefore,

although the cases share some similar facts, such as the mother

assisting with the child being enrolled in school and the packing

of items beyond those needed for a short stay, Karkkainen does

not control the outcome of this case.
17We again note that a determination of custody rights

under the Hague Convention is not a determination of who

should actually have custody. See, e.g., Adan, 437 F.3d at 391;

Hague Convention, art. 16. Rather, we are only deciding who

had custody rights in the country of the child’s habitual

residence in order to determine whether the child was

wrongfully retained under the Convention.

24

As the record and the case law convince us that Canada

was Raeann’s habitual residence immediately prior to

November 20, 2002, the Convention is applicable as she was

retained in the United States. Gitter v. Gitter, 396 F.3d 124, 130

(2d Cir. 2005). However, we must complete the remaining steps

of the analysis in order to determine whether the retention was

wrongful within the meaning of Article 3.

B.

The next step to consider is whether Yang had custody of

Raeann.17 Custody rights, under the Hague Convention,

“include rights relating to the care of the person of the child and,

in particular, the right to determine the child’s place of

residence.” Hague Convention, art. 5(a). To make a custody

determination, it is necessary to carefully examine “the country

of origin’s custody laws to determine whether the party seeking

the child’s return had custody rights in that country . . . at the

time the child was [retained].” Adan, 437 F.3d at 391 (internal

quotation marks and citation omitted). When the country in

which the child habitually resides has “more than one territorial

unit, the custody rights laws of the territorial unit apply.” Feder,

63 F.3d at 221-22 (citing Hague Convention, art. 31).
25

Under the Convention custody rights are different than

“rights of access.” Rights of access “include the right to take a

child for a limited period of time to a place other than the child’s

habitual residence.” Hague Convention, art. 5(b). Rights of

access are visitation rights, and the protection afforded for such

rights under the Convention is less than that afforded for

custody rights. Adan, 437 F.3d at 392. When custody rights are

violated, a court can order that the child be returned to his or her

habitual residence, while a court cannot order the return of a

child when access rights are violated. Id.

In this case, as Raeann was an habitual resident in

Canada, but more specifically British Columbia, British

Columbia’s law governs the determination of custody rights as

defined by the Convention. See Feder, 63 F.3d at 221-22. Both

parties offered expert testimony on British Columbia custody

law, and it is undisputed that its Family Relations Act is

applicable. The Act states in pertinent part:

34. Persons who may exercise custody

34(1)

Subject to subsection (2), the persons who may

exercise custody over a child are as follows:

(a) if the father and mother live together, the

father and mother jointly;
26

(b) if the father and mother live separate and

apart, the parent with whom the child usually

resides;

(c) if custody rights exist under a court order, the

person who has those rights;

(d) if custody rights exist under a written

agreement, the person to whom those rights are

given.

34(2)

If persons have conflicting claims to custody

under subsection (1), the following persons may

exercise custody to the exclusion of the other

persons unless a court otherwise orders:

(a) the person who has custody rights under a

court order;

(b) if paragraph (a) does not apply, the person

granted custody by an agreement;

(c) if paragraphs (a) and (b) do not apply, the

person claiming custody with whom the child

usually resides. . . .

R.S.B.C. 1996, c. 128, s. 34.
18The District Court applied section 34(1). However, we

find that section 34(2) applies because of the conflicting custody

claims. The factual determinations made by the District Court

enable us to apply section 34(2) in our analysis.

27

Yang and Tsui both claimed to have custody rights under

section 34(1). At the hearing before the District Court, both

experts testified that because both parents claimed to have

custody rights section 34(2) applies.18 Therefore, we need to

determine which subsection applies. No custody order existed

on the date of retention making section 34(2)(a) inapplicable.

Tsui argues that an agreement existed making section 34(2)(b)

the relevant provision. However, Yang argues that section

34(2)(c) controls in this case.

We will first address whether there was an agreement

between Yang and Tsui regarding the custody of Raeann. It is

undisputed that prior to Raeann’s travel to Pittsburgh, Yang had

sole custody of Raeann. That is Yang and Tsui lived separate

and apart, and Raeann resided with Yang. See R.S.B.C. 1996,

c. 128, s. 34(1)(b). Therefore, we need to determine whether, as

Tsui claims, there was an agreement between the parties that

transferred custody to Tsui.

The experts testified that, like the Convention, the

custody laws of British Columbia differentiate between custody

rights and visitation rights. According to the experts, a custodial

parent is the parent who is entitled to make the major decisions

regarding the child and who oversees the day-to-day care of the

child, while a non-custodial parent has access or visitation

rights. However, both experts testified that a child’s “visit” with
28

the non-custodial parent can be for an extended period of time,

such as summer vacation.

There was also testimony regarding what constituted a

custody agreement under the Family Relations Act. According

to the experts, a custody agreement does not need to be filed

with a court or even be memorialized in writing. Rather, an oral

agreement or unsigned documents, such as emails, will suffice.

However, the main factor according to both experts is whether

the custodial parent intended to transfer custody rights to the

non-custodial parent. Tsui’s expert testified that the

determination of whether such an intent existed is a factual

determination to be made by a judge. She also explained that

factors such as whether the custodial parent authorized the noncustodial parent to make major decisions, such as where to

enroll the child in school or what doctors to use, can

demonstrate such an intent.

Tsui argues that the evidence in this case demonstrates an

agreement to transfer custody of Raeann to him. As proof he

points to the authorization that Yang signed which allowed

Raeann to travel to Pittsburgh with him. That document simply

stated “I authorize Mr. Fu-Chiang Tsui to accompany Raeann

Tsui to travel to the United States.” Tsui’s own expert testified

that the authorization was ambiguous and did not clearly transfer

custody rights. Because of that ambiguity, she stated, whether

the writer intended to transfer custody was a factual

determination to be made by a judge. The District Court in this

case found that Yang did not intend to transfer custody when she

prepared and signed the document. Based on the record, we

agree with that determination.
29

Tsui also claims that the general agreement that Raeann

stay with him included the transfer of custody rights. Such an

agreement necessarily constituted a change of custody, he

claims, as it required Tsui to make major decisions regarding

Raeann. However, the record does not demonstrate that is true.

For example, as Tsui vigorously argued in his Brief regarding

the habitual residence determination, Yang participated in the

enrollment of Raeann in a Pittsburgh school. And, although

Tsui believed that Raeann should remain in the school for the

entire fall term even if Yang recovered before then, he sought

Yang’s approval for that decision. There is evidence in the

record that Tsui took Raeann to doctors for a skin condition.

However, the record does not indicate that such visits occurred

during the relevant time period between October 27, 2002 and

November 20, 2002. Nor does the record reflect that Yang had

knowledge of such visits or that she approved. The evidence

does not demonstrate that Tsui had control over the major

decisions regarding Raeann. The requisite intent to transfer

custody is absent. Rather, as the District Court determined,

“Raeann’s trip to the United States was intended by her parents

to be an extended visit coextensive with Yang’s convalescence

and not a transfer of custody for an indefinite period of time.”

Yang v. Tsui, No. 2:03-cv-1613, 2006 WL 2466095, *11 (W.D.

Pa. Aug. 25, 2006). Absent an intent by Yang to transfer

custody, a requirement that Tsui’s expert testified was necessary

and to be determined by a judge, it cannot be said that the

parties had an agreement as required under section 34(2)(b) to

create custody rights in Tsui. Therefore, section 34(2)(b) is

inapplicable to this case.
30

We now turn to section 34(2)(c), and we must determine

who Raeann usually resided with at the date of retention. On

appeal, Tsui does not contest, nor can he, that Raeann usually

resided with Yang prior to the date of retention. The District

Court held that Raeann usually resided with Yang, and it is clear

from the record that it was correct. In fact, for most of her life

Raeann resided solely with her mother. From April 2001 until

the end of October 2002, Yang and Raeann resided in British

Columbia. The time that Raeann spent at Tsui’s house in

Pittsburgh from October 27, 2002 until November 20, 2002,

cannot be said to constitute her “usual” residence. Based on the

facts of this case, Yang is clearly the parent with whom Raeann

usually resided. Therefore, under section 34(2)(c), Yang had

exclusive custody rights within the meaning of the Convention.

C.

As we have determined that Yang in fact had custody of

Raeann, we now reach the final question in the wrongful

retention analysis: whether she was exercising those rights at the

time of retention. Under this prong, Yang’s burden is easy

because “the test for finding the non-exercise of custody rights

under the Hague Convention is stringent.” Baxter, 423 F.3d at

370 (internal citation omitted). “‘[V]ery little is required of the

applicant in support of the allegation that custody rights have

actually been or would have been exercised.’” Adan, 437 F.3d

at 391 (quoting Hague Int’l Child Abduction Convention: Text

and Legal Analysis, 51 Fed.Reg. 10,494, 10,507 (Mar. 26, 1986)

(hereinafter “Hague Convention Analysis”)). The petitioner can

show the exercise of custody rights by demonstrating that he or

she kept or sought to keep, some sort of regular contact with the
31

child. Baxter, 423 F.3d at 370. Essentially, nothing short of

clear and unequivocal abandonment will prove that the

petitioner failed to exercise his or her custodial rights. Id.

The evidence in this case clearly meets the standard.

Yang attempted to speak with Raeann whenever possible, even

when she was in the hospital. When she was out of the hospital

she spoke with Raeann every day, until Tsui limited the calls to

every other day. Therefore, she kept or attempted to keep some

sort of regular contact with Raeann. Nothing in the record

suggests that Yang clearly or unequivocally abandoned Raeann.

Therefore, Yang exercised her custody rights.

Tsui argues that Yang was unable to exercise her custody

rights because of her illness. That is, he claims that Yang was

not able to take care of Raeann from the end of October 2002

until the date of retention, and even after that period. However,

this is not sufficient to refute Yang’s evidence that she exercised

her custody rights. As the test for finding the non-exercise of

custody is stringent, Yang’s illness simply does not meet that

high bar.

D.

We hold that Yang proved by a preponderance of the

evidence that Tsui wrongfully retained Raeann within the

meaning of Article 3. As there was a wrongful retention, the

Convention dictates that Raeann must be returned to Canada.
19As we held in Yang I, the “well-settled determination”

is not relevant to this case because Yang filed her Petition within

one-year of the date of wrongful retention. 416 F.3d at 203 n.4.

32

Hague Convention, art. 12.19 However, the Convention also

gives the District Court the discretion to deny such an order for

a variety of reasons. Hague Convention, art. 13. The

respondent has the burden of proving that the child should not

be returned for one of the enumerated exceptions listed in

Article 13. Karkkainen, 445 F.3d at 288. If the respondent

proves one of the affirmative defenses, it is within the discretion

of the District Court to refuse to order the child be returned to

his or her habitual residence. Id.

On appeal, Tsui maintains that he proved the “wishes of

the child” defense by a preponderance of the evidence and that

the District Court abused its discretion by entering the order for

Raeann to be returned to Canada despite such proof. Although

we have not previously considered this defense, we believe that

the District Court did not err by refusing to apply the defense.

Therefore, we will affirm the order mandating that Raeann be

returned to Canada despite her desire to remain in the United

States.

Article 13 includes what has been called the “wishes of

the child” defense or exception. The Convention provides:

The judicial or administrative authority may also

refuse to order the return of the child if it finds

that the child objects to being returned and has
33

attained an age and degree of maturity at which it

is appropriate to take account of its views.

Hague Convention, art. 13. As with any of the affirmative

defenses under the Convention, this defense is to be construed

narrowly. See England v. England, 234 F.3d 268, 272 (5th Cir.

2000). The exceptions are construed narrowly so their

application does not undermine “the express purposes of the

Convention.” Feder, 63 F.3d at 226. Additionally, even if the

respondent meets his or her burden of proving the affirmative

defense, the court retains the discretion “to order the return of

the child if it would further the aim of the Convention which is

to provide for the return of a wrongfully removed child.” de

Silva v. Pitts, 481 F.3d 1279, 1285 (10th Cir. 2007) (internal

citations omitted); see also Feder, 63 F.3d at 226.

Although we have not previously considered this defense,

we agree with the analysis used by other courts that have

addressed its application. The child’s wishes can be the sole

reason that a court refuses to order the return of the child to his

or her habitual residence. See Blondin v. Dubois, 189 F.3d 240,

247 (2d Cir. 1999) (internal citations omitted). However, a

“court must apply a stricter standard in considering a child’s

wishes when those wishes are the sole reason underlying a

repatriation decision and not part of some broader analysis,”

such as whether the child would suffer a grave risk of harm if

returned to his or her habitual residence. de Silva, 481 F.3d at

1286.

An analysis of whether to apply the “wishes of the child”

exception requires consideration of the goals of the Convention
34

and a determination of whether the child is of sufficient age and

maturity for his or her views to be taken into account. Id. The

Convention does not set an age at which a child is automatically

considered to be sufficiently mature, rather the determination is

to be made on a case-by-case basis. “Given the fact-intensive

and idiosyncratic nature of the inquiry, decisions applying the

age and maturity exception are understandably disparate.” Id.

at 1287 (internal citation omitted). In making its determination,

a court should also consider whether a child’s desire to remain

or return to a place is “the product of undue influence,” in which

case the “child’s wishes” should not be considered. Id. at 1286;

see also Hague Convention Analysis, 51 Fed.Reg. at 10,509 (“A

child’s objection to being returned may be accorded little if any

weight if the court believes that the child’s preference is the

product of the abductor parent’s undue influence over the

child.”).

The District Court heard Raeann’s testimony in camera,

and determined that she was “a bright, intelligent and pleasant

child.” Dr. Paul Bernstein, a psychologist and expert witness

used by Tsui, supplied a report in which he also found Raeann

to be quite intelligent. Raeann informed Dr. Bernstein that she

wanted to stay in Pittsburgh. Her reasons for wanting to stay

included liking her school, her preference for living in a house

rather than a small apartment, and having friends and brothers.

She also explained that she missed her mother and knew that her

mother was very sick, but she was happy in Pittsburgh and had

lived there for more than three years. Raeann’s testimony at the

hearing was consistent with her statements to Dr. Bernstein. At

the hearing, Dr. Bernstein testified that he did not think that

Raeann demonstrated any signs of coercion, although he
20The District Court also found evidence of undue

influence. In its view, some of Raeann’s statements to Dr.

Bernstein demonstrated that she was expressing someone else’s

opinion. For example, it believed that her statement that the

“best school is in Pittsburgh” was mere repetition of what Tsui

35

admitted that her time and experiences with her father had a

major impact on her desire to remain in Pittsburgh.

The District Court found that Raeann’s testimony did not

include particularized objections to returning to Canada, but

rather it indicated that she possessed a more generalized desire

to remain in Pittsburgh similar to that of any ten-year-old having

to move to a new location. She had reasons to support her

preference to remain in the United States, but such reasons were

not necessarily sufficient to invoke the exception. See, e.g.,

Locicero v. Lurashi, 321 F. Supp. 2d 295, 298 (D. P.R. 2004)

(“The fact that the [thirteen-year-old] child prefers to remain in

Puerto Rico, because he has good grades, has friends and enjoys

sports activities and outings, is not enough for this Court to

disregard the narrowness of the age and maturity exception to

the Convention’s rule of mandatory return.”). Despite her

intelligence and demeanor, the District Court found that Raeann

was not of sufficient age or maturity for her views to be

appropriately considered. In other words, it found that Tsui

failed to meet his burden of proving by a preponderance of the

evidence that the “wishes of the child” exception should be

applied in this case. Therefore, the District Court declined to

apply the exception to prevent Raeann from being returned to

Canada based solely on her desire to remain in Pittsburgh. As

such a finding is not clearly erroneous, we will not disturb it.20
told her. Dr. Bernstein testified that Raeann’s use of the word

“best” was not meant in the comparative sense, but rather

connoted that she thought her school was great. The District

Court rejected that interpretation based on Dr. Bernstein’s prior

testimony that Raeann was a borderline genius, and it thought it

was unlikely that she did not understand the comparative

meaning of the word “best.” As the record is sufficient to

support the District Court’s determination that Raeann was not

sufficiently mature for a court to appropriately consider her

views and that the application of the exception in this case

would frustrate the purposes of the Convention, absent a

determination of undue influence, it is unnecessary for us to

determine whether the suggestion of undue influence in the

record was sufficiently strong in this case for Raeann’s views to

be disregarded on that basis.

36

In addition, the District Court determined that this was

not an appropriate case in which to apply the exception. The

attachment that Raeann had to Pittsburgh and her family there

were created because of Tsui’s wrongful retention of Raeann.

The three weeks in which Raeann resided with Tsui, but was not

wrongfully retained by him, is not the time period during which

Raeann grew attached to her family and life in Pittsburgh.

Rather, it was the passage of time during the years of wrongful

retention and litigation of this case that created Raeann’s desire

to remain in Pittsburgh. If the District Court applied the

exception in this case, it would encourage parents to wrongfully

retain a child for as long as possible. A lengthy wrongful

retention could enable the child to become comfortable in his or

her new surroundings, which may create a desire to remain in

his or her new home. The application of the exception in this
37

case would reward Tsui for violating Yang’s custody rights, and

defeat the purposes of the Convention. Even if the record

supported a finding that Tsui met his burden of proving the

applicability of the exception to this case, it cannot be said that

the District Court abused its discretion by refusing to apply the

exception. Rather, the District Court construed the exception

narrowly in order to “effectuate the purposes of the

Convention.” Karkkainen, 445 F.3d at 288. Therefore, we

agree with the District Court’s refusal to apply the exception in

this case, and its order mandating Raeann’s return to Canada.

IV.

For the reasons stated above, we agree with the District

Court’s determination that Tsui wrongfully retained Raeann, and

that Raeann should have been returned to Canada despite the

“wishes of the child” exception. Therefore, we will affirm the

District Court’s judgment.

NYGAARD, J., Concurring.

I join Judge Fisher’s excellent opinion for the court in its

totality and write separately in order to shine a brief spotlight on

the alarming absence of alternative dispute resolution practices

under the Hague Convention. The concerns we have for

children in domestic custody disputes are no different for

children caught-up in litigation under the Hague Convention.

Tragically, the difficulties parents and the courts face in

protecting children from instability and unpredictability are

magnified for children involved in Hague Convention litigation

because of the cross-border nature of their parents’ dispute.
38

Globalization has lead to a dramatic increase in litigation

of international family disputes. See Revised Brussels

Regulation II, Council of the European Union,

http://europa.eu.int/eur-lex/pri/en/oj/dat/2003/l_338/l_

33820031223en00010029.pdf; Nigel Lowe et al., A Statistical

Analysis of Applications Made in 1999 Under the Hague

Convention of 25 October 1980 on the Civil Aspects of

International Child Abduction Preliminary Document No. 3 of

March 2001 (revised version, Nov. 2001), Permanent Bureau of

the Hague Conference, http://

hcch.e-vision.nl/upload/abd2001pd3e.pdf. I submit that such an

increase calls for creating better mechanisms for settling

international custody disputes. Of course, discussion of the

importance of ADR in international custody dispute litigation is

beyond the scope of this concurring opinion. I commend the

following article to interested parties in the hope that at some

point efforts will be undertaken to alleviate the tragic positions

of children who, like Raeann Tsui, are trapped in long and

destructive international custody battles: Radoslaw Pawlowski,

Note, Alternative Dispute Resolution For Hague Convention

Child Custody Disputes, 45 FAM. CT. REV. 302 (2007).