The trial court must order immediate return of the child to the child’s country of habitual residence if, and when, the court finds that the relocating parent removed or withheld the child from the other parent and provided the parent had custodial rights as a matter of law and was exercising those rights. 42 USC 11603.
A child's habitual residence is the place where he or she had been physically present for an amount of time sufficient for acclimatization and which has a "degree of settled purpose" from the child's and the parents’ perspective. A determination of whether any particular place satisfies this standard must focus on the child and consists of an analysis of the child's circumstances in that place and the parents' present, shared intentions regarding their child's presence there. Harkness v Harkness, 227 Mich App 581, 582; 577 NW2d 116 (1998). As a matter of law, a young child’s residence, or domicile, follows her parents’ . Id.
A parent’s right to decide his or her child’s country of residence, otherwise known as a ne exeat right, is a right of custody under the Hague Convention. Abbott v Abbott, 560 US 1 (2010). Accordingly, if a child is taken out of a Hague Convention contracting state to the Convention in violation of a parent’s ne exeat right, the parent is entitled to the immediate return of the child unless an exception to the Convention applies. Id. There are limited defenses toa Hague Convention claim, and none of them apply to this case. They are:
1 Year+ Settlement - More than one year has elapsed from the date of the wrongful removal or retention, and the child is settled in his or her new environment. Hague Convention, Article 12.
Not Exercising Rights/Consent/Acquiescence -Whoever had care of the child at the time of removal or retention was not actually exercising custody rights or had consented to or subsequently acquiesced in the removal or retention. Hague Convention, Article 13a.
Grave Risk of Harm -There is a grave risk that a return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Hague Convention, Article 13b.
Child’s Objection - The child objects to the return and is of an age and degree of maturity where his or her views should be taken into account. Id.
Human Rights - The return is not permitted by American human rights principles. Hague Convention, Article 20.
The responding party must prove by clear and convincing evidence that a grave risk of harm or risk of human rights exists should the child return, and by a preponderance of the evidence the remaining defenses. 42 USC 11603(e)(2)(B).
For the current list of Hague Convention countries, visit:
http://travel.state.gov/content/childabduction/en/country/hague-party-countries.html