The opinion of the court was delivered by: (judge Caputo)
Presently before the Court is Alberto Eugenio Font Paulus's Verified Petition for Return of Child to Petitioner and Petition for Immediate Issuance of Show Cause Order to Respondent. (Doc. 1.) This Petition is predicated on the Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention" or "Convention") and on its implementing statute, the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. § 11601 et seq. Petitioner Alberto Eugenio Font Paulus alleges that minor child P.F.V.'s mother, Respondent Ana Virginia Vittini Cordero, wrongfully retained P.F.V. in the United States without his permission. Through his Petition, he seeks the return of his child P.F.V. to the Dominican Republic where the Petitioner and his daughter are citizens. As Mr. Font Paulus has made out a meritorious Petition, and as Ms. Vittini Cordero has been unable to show cause why the Petition should not be granted, I will grant the Petition and direct that P.F.V. be returned to the Dominican Republic with the Petitioner.
On May 24, 2012, Petitioner Mr. Font Paulus filed his Petition in the Middle District of Pennsylvania. (Doc. 1.) I then held an initial hearing on the matter on May 31, 2012. Following that hearing, I entered an Order declaring that the Petitioner had established his prima facie case under the Convention and that a hearing would be later held in order to allow Respondent Ms. Vittini Cordero to show cause why the Petition should not be granted. (Doc. 11.) I also directed that Vittini Cordero turn over her passport and P.F.V.'s passport to the United States Marshall and ordered that they remain in the Middle District of Pennsylvania while the Petition was pending. On June 26 and 27, 2012, a subsequent hearing was held before me in which the Respondent attempted to show cause as to why the Petition should not be granted. This matter is now ripe for the Court's review.
The Hague Convention was designed 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." Hague Convention, pmbl. By its design, the Convention does not seek to "settle international custody disputes but rather 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." Karkkainen v. Kovalchuk, 445 F.3d 280, 287 (3d Cir. 2006). As such, the Convention "reflects a universal concern about the harm done to children by parental kidnapping and a strong desire among the Contracting States to implement an effective deterrent to such behavior." Feder v. Evans-Feder, 63 F.3d 217, 221 (3d Cir. 1995) (citing Hague Convention, pmbl.; 42 U.S.C. § 11601(a)(1)-(4)). To this end, one of the Convention's primary objects is to secure the prompt return of children*fn1 wrongfully removed or retained in any party country. Hague Convention, art. 1a. The Convention is implemented in U.S. law by the ICARA, which confers jurisdiction on courts*fn2 to entertain a petition under the Convention and instructs them to decide the case in accordance with the treaty. 42 U.S.C. § 11603(a), (d).
If a court determines that "the child in question has been 'wrongfully removed or retained within the meaning of the Convention,' the child shall be 'promptly returned,' unless an exception is applicable." Abbott v. Abbott, ------U.S. --------, 130 S.Ct. 1983, 1989 (2010) (quoting 42 U.S.C. § 11601(a)(4)). As noted, an order to return a child is not a determination as to custody. Id. Rather, the pre-abduction custody allocation remains until a custodial decision can be made by the court of the country of habitual residence. Id.
A. Initial Burden of Petitioner
Following the May 31, 2012 hearing, I entered an Order that the Petitioner had made out a prima facie case under the Convention. (May 31, 2012 Order, Doc. 11.) The burden was then shifted to the Respondent to show cause why the Petition should nonetheless be denied. Much of the Respondent's case, however, went not to affirmative defenses to the Convention, but to the applicability of the Convention itself. Thus, it is necessary to now address the sufficiency of the Petitioner's case.
In order to secure the return of a child under the Convention, the petitioner bears the burden of proving by a preponderance of the evidence that the child's removal or retention was wrongful within the meaning of Article 3 of the Convention. 42 U.S.C. § 11603(e)(1)(A). Under Article 3 of the Convention, the removal or retention of a child is "wrongful" where:
(a) It is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
Hague Convention, art. 3. Summarizing, the Third Circuit noted in Karkkainen that wrongful removal or retention cases under the Convention usually raise four questions:
(1) When did the removal or retention at issue take place? (2) Immediately prior to the removal or retention, in which state was the child habitually resident? (3) Did the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual residence? (4) Was the petitioner exercising those rights at the time of the removal or retention?
Karkkainen, 445 F.3d at 287. These four elements will be addressed seriatim below.
1. Date of Removal or Retention
A court must first determine when an alleged wrongful removal or retention occurred so that it may establish the relevant date of the child's habitual residence. See Karkkainen, 445 F.3d at 290. Wrongful removal refers to the non-custodial parent's physical taking of the child out of the country; wrongful retention refers to the non-custodial parent's keeping the child out of the country. Baxter v. Baxter, 423 F.3d 363, 369 (3d Cir. 2005). Thus, a non-custodial parent may remove a child from the country with permission, but then wrongfully retain the child outside the country. See id. at 370-71. The ...