1 130 S.Ct. 1983 (2010).

2 See Convention on the Civil Aspects of International Child Abduction, opened for signature Oct. 25, 1980, 1343 UNTS 98.

3 42 U.S.C. §§11601–11611 (2006) (as amended). ICARA is the statute implementing the Convention in the United States.

4 See, e.g., Croll v. Croll, 229 F.3d 133 (2dCir. 2000), cert, denied, 534 U.S. 949 (2001); Fawcettv. McRoberts, 326 F.3d 491 (4th Cir. 2003), cert, denied, 540 U.S. 1068 (2003). The Eleventh Circuit had taken the opposite view. See Fumes v. Reeves, 362 F.3d 702 (11th Cir. 2004), cert, denied, 543 U.S. 978 (2004).

5 See generally Silberman, Linda J., Interpreting the Hague Abduction Convention: In Search of a Global Jurisprudence, 38 U.C. Davis L. Rev. 1049 (2005)Google Scholar.

6 Conférence de La Haye de droit international privé, 3 Acres et documents de la Quatorziéme session: Child Abduction (1982)Google Scholar.

7 Croll, 229 F.3d at 147.

8 But a “travel restriction” coupled with statutory rights of joint responsibility would constitute a “right of custody.” In Duran v. Beaumont, 534 F.3d 142 (2d Cir. 2008), vacated and remanded in light of Abbott, 130 S.Ct. 3318 (2010), a court order authorized the mother to travel to the United States with the child for three months. The travel period expired, but the mother remained in the United States in violation of that order. A Chilean statute also gave “personal care” of a minor to the mother in the absence of agreement or court order when the parents live separately, but the other parent has the duty to seek a direct permanent relationship with the child. A second statute prevented a minor from exiting the country without the authorization of either both parents or the court. In light of Abbott, the Second Circuit found that the father possessed a right of custody that he exercised when he refused to consent to the child’s removal from Chile. Duran v. Beaumont, 2010 U.S. App. LEXIS 20604 (remanding to the district court for evaluation of the Abduction Convention’s exception to return where the requesting parent was exercising rights of custody).

9 See, e.g., X County Council v. B, [2010] 1 F.L.R. 1197 (Eng.) (holding a Hague application by English local authority was proper in that an English court seised of proceedings to determine the child’s place of residence had “rights of custody”); Re J, [1999] 2 F.L.R 653 (Eng.) (finding a court actively seised of proceedings for parental responsibility and that had issued the logical concomitant of a ne exeat order had “rights of custody”); see also Thomson v. Thomson, [1994] 3 S.C.R. 551 (Can.) (noting that a ne exeat restriction in an interim custody order gave a “right of custody” to the court but stating that such a restriction in a final custody order did not confer a “right of custody” since it was designed to protect the noncustodial parent’s right of access).

10 But see In re H, [2000] 2 A.C. 291 (H.L.) (holding that where a court had a “right of custody” as a result of a guardianship application before it, an unmarried father could assert that right in an application for return).

11 See D.S. v. V.W., [1996] 2 S.C.R. 108 (Can.) (stating that implicit restrictions on movement of parent did not create a “right of custody” in the other parent); see also In re D, [2007] 1 A.C. 619 (H.L.) (Baroness Hale stating that a parental right of veto on relocation would be a “right of custody” but that the “potential right” to go to court to prevent relocation would not).

12 See Silberman, Linda, Patching Up the Abduction Convention: A Call for a New International Protocol and a Suggestion for Amendments to ICARA, 38 Tex. Int’l L.J. 41, 48–50 (2003)Google Scholar; Walter, Marguerite C., Toward the Recognition and Enforcement of Decisions Concerning Transnational Parent-Child Contact, 79 N.Y.U. L. Rev. 2381, 2386–88 (2004)Google Scholar.

13 See, e.g., Parkinson, Patrick, Cashmore, Judith, & Singh, Judi P., The Need for Reality Testing in Relocation Cases, 44 FAM. L.Q. 1, 15–22 (2010)Google Scholar (discussing the implications of changing situations, problems of maintaining contact, and the costs and burdens of travel); Freeman, Marilyn, Relocation: The Reunite Research 14–16 (2009)Google Scholar (highlighting the problem of maintaining and financing contact between parent and child), at http://www.reunite.org/pages/leave_to_remove.asp.

14 Neulinger v. Switzerland, App. No. 41615/07, Merits & Just Satisfaction (Eur. Ct. H.R. July 6, 2010).

15 See Elisa, Pérez-Vera, Explanatory Report, paras. 22–25 (1981), at http://hcch.e-vision.nl/upload/expl28.pdf Google Scholar.

16 Under Article 12 of the Convention, when a period of less than one year has elapsed from the date of the wrongful removal or retention and the commencement of proceedings in the state where the child is located, the relevant authority shall order the return of the child forthwith. Even if more than a year has passed between the wrongful removal or retention and the commencement of proceedings, return is still required “unless it is demonstrated that the child is now settled in its new environment.”

17 The father commenced proceedings less than one year from the wrongful removal, and thus any inquiry as to whether the child was “settled” was inappropriate under the Convention. However, the European Court of Human Rights relied upon the length of time that the child spent in Switzerland during the litigation to trigger the Article 12 “settled” exception to prompt return. Not only did the European Court misread Article 12, but also a significant portion of the child’s time in Switzerland was due to the length of proceedings in the European Court itself. In September 2007, the Court instructed the Swiss authorities to delay enforcement of the return until the Court had issued its decision. But the appeals chamber did not make its initial ruling until January 2009, and the Grand Chamber did not rule on the appeal until July 2010.