Rights of Custody – Art. 3
The court held that while the father possessed joint rights of custody he could not establish that he was actually exercising those rights at the time of the child’s removal. The child lived with the mother in Florida following the parental separation. The court found that the father did not maintain regular contact with the child. It also accepted evidence that the father neither provided for the child’s maintenance, care or lodging nor did he exercise any rights of parental custody. The court stated that ordinarily it is the parent with whom the child lives who actually exercises custody.
Grave Risk – Art. 13(1)(b)
The court held that a restrictive interpretation of Article 13(1)(b) was necessary and that only serious dangers to a child’s interests which exceeded the normal difficulties connected to sending a child back could justify a refusal to return. Nevertheless the court found that the standard had been reached in the instant case. In this the court accepted witness evidence that the father was violent, addicted to drugs, unpredictable, and aggressive. The mother’s economic situation was found to be unstable and the child was disturbed due to the tensions between his parents. He had difficulty sleeping, he wet his bed, and showed aggressive behaviour. The court reasoned that if returned to the United States, even in the company of his mother, he would once more be placed under extreme stress and thus into an intolerable situation.
