Nicolson v. Pappalardo

United States Court of Appeals
For the First Circuit

No. 10-1125

LUCAS NICOLSON,

Petitioner, Appellee,

v.

ERICA PAPPALARDO,

Respondent, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Boudin, Lipez and Howard,

Circuit Judges.

Deena Jo Schneider with whom Schnader Harrison Segal & Lewis
LLP, Peter W. Evans and Givertz, Hambley, Scheffee & Lavoie, P.A.
were on brief for appellant.
Stephen J. Cullen with whom Kelly A. Powers, Joshua J.
Gayfield and Miles & Stockbridge P.C. were on brief for appellee.

April 30, 2010
 BOUDIN, Circuit Judge. This is an appeal from a

proceeding in the district court under the Hague Convention on the

Civil Aspects of International Child Abduction ("the Hague

Convention"), which governs certain child custody disputes. Hague

Convention on the Civil Aspects of International Child Abduction,

Oct. 25, 1980, T.I.A.S. No. 11,670, 19 I.L.M. 1501. We begin with

a description of the background events, drawn from the record in

the district court, and of the proceedings that led to the present

appeal.

Erica Pappalardo, an American citizen, and Lucas

Nicolson, an Australian serving as a soldier in his country's armed

forces, began a relationship in Australia when Pappalardo was

traveling there. Pappalardo moved in with Nicolson and became

pregnant. After she returned to the United States, Nicolson

proposed marriage over the telephone, and she accepted and returned

to Australia where the couple was married in August 2008. They

moved to Townsville, where Nicolson was posted for service in the

Australian Defense Force.

In November 2008, when Pappalardo was eight months

pregnant, Nicolson told her he did not love her and was unsure

whether marrying her had been a mistake. Pappalardo, upset, told

Nicolson she wanted to move back to the United States as soon as

she and the child were medically cleared to travel. But the couple

continued to live together in Australia; Pappalardo says they did

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so, despite continuing marital problems, because she was

financially dependent on Nicolson and could not travel with a baby

until the baby was three months old.

Their daughter, S.G.N., was born in December 2008. Until

March 2009, all three resided together in Townsville. That month,

Nicolson and Pappalardo arranged for a U.S. passport for S.G.N.--

Nicolson says merely so S.G.N. could visit Pappalardo's family in

the United States, but Pappalardo says Nicolson knew of and

reluctantly acceded to her plans to move herself and S.G.N.

permanently to the United States.

In exchange for Nicolson's signing for the child's

passport, Pappalardo agreed to give the marriage another chance.

Nicolson says this trial was for three months, but Pappalardo

denies making any duration promises. She also claims that Nicolson

did nothing in the following months to repair the marriage.

The couple made preparations for Pappalardo and S.G.N.'s

travel, packing or shipping a large quantity of belongings

including S.G.N.'s medical records and transferring title to the

couple's car from Pappalardo to Nicolson. On March 29, 2009,

Nicolson drove Pappalardo and S.G.N. to the airport to fly to

Sydney where Pappalardo's mother would assist in their travel to

the United States. The next day, in Sydney, Pappalardo mentioned

to Nicolson's mother and sister that she did not plan to return.

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 Nicolson's mother informed Nicolson, who immediately flew

to Sydney and angrily confronted Pappalardo at her hotel about her

intentions; Pappalardo said she was unsure. He met with an

attorney that day but told Pappalardo the next day that he would

not pursue legal action because he wanted her to return with S.G.N.

on her own accord. She said she was open to working on their

relationship. On April 2, 2009, she and S.G.N. flew to the United

States.

At first, the couple communicated regularly via e-mail

and Internet video chat. At Nicolson's request, Pappalardo

reserved a late May 2009 return airline ticket to Australia for

herself, with S.G.N. to sit on her lap. Pappalardo claims Nicolson

began harassing her with profane phone calls, text messages, and

threats. On May 4, after meeting with a counselor, Pappalardo had

an "epiphany" that their marriage would never work and notified

Nicolson that she and S.G.N. would not return to Australia.

On May 14, 2009, Pappalardo filed a complaint in Maine

state court seeking an ex parte temporary order for protection from

abuse ("PFA") against Nicolson, which was granted immediately and

served on Nicolson on June 12. In the meantime, Nicolson filed an

Application for Return--not then disclosed to Pappalardo--with the

Central Authority of Australia, pursuant to the Hague Convention.

The Convention, to which the United States and Australia are

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parties, can result in an order requiring the return to its

habitual residence of a child wrongfully taken or retained.

On September 4, 2009, Nicolson's Maine attorney attended

the hearing on the final PFA order, but Nicolson did not attend and

was denied permission to testify telephonically. The court was not

told that Nicolson was pursuing Hague Convention relief because

(Nicolson says) he was so advised by Australian authorities in case

it might prompt Pappalardo to flee with S.G.N. Instead, his

attorney and Pappalardo's lawyer agreed to entry of a PFA order

dated September 4, 2009, which is central to this appeal.

The order recited in a checked box with form language

that "[t]he parties have agreed to the following Order, which is

made without findings of abuse" (the phrase "w/o admission" was

added in handwriting). Further checked boxes limited Nicolson's

contact with Pappalardo save that in the checked box form provision

dealing with "temporary parental rights and responsibilities

(custody) of minor child(ren)," Nicolson was given limited Internet

contact with the child. That checked box reads as follows (the

underlined portion being handwritten):

The plaintiff [Pappalardo] is awarded
temporary parental rights and responsibilities
(custody) of minor child(ren), whose names and
dates of birth are as follows: [S.G.N.] (DOB
12-22-2008) TO BE AMENDED BY COURT OF
COMPETENT JURISDICTION. PA OBO [S.G.N.] TO BE
DISMISSED UPON ISSUANCE OF FINAL FM ORDER.

The defendant's rights of contact are limited
as follows: pending further order in Family

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 Matter, Defendant [Nicolson] may have
reasonable contact via Skype or other video
conference system at least once per week and
regular updates about child by regular e-mail
contact. In Emergency phone contact is
permitted. Defendant is granted access to
records of child.

A closing form paragraph, on the second page of the form

order, stated that the order would remain in effect for a specified

period--in this case, a date two years hence was inserted--"unless

earlier modified or vacated by order of court or, with respect to

Child Support or Parental Rights and Responsibilities, by a

Magistrate." On October 2, 2009, Pappalardo filed a suit for

divorce in the state court.

On October 22, 2009, Nicolson filed in federal district

court in Maine a petition seeking return of the child to Australia,

claiming under the Hague Convention that Pappalardo had wrongfully

retained S.G.N. in the United States.1 The Convention provides for

the return of a child whose removal or retention in another country

is "in breach of rights of custody attributed to a person . . .

under the law of the State in which the child was habitually

resident immediately before the removal or retention" and those

custody rights were actually exercised at the time. Art. 3(a).

1
The International Child Abduction Remedies Act, which
implements the Hague Convention, affords the federal district court
jurisdiction over Nicolson's petition. 42 U.S.C. § 11,603(a)
(2006).

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 Under the Convention, the petitioner--in this case

Nicolson--bears the burden of proving wrongful removal or retention

by a preponderance of the evidence. 42 U.S.C. § 11,603(e)(1). To

do this, he must show (1) that S.G.N.'s habitual residence was

Australia immediately prior to the retention, (2) that he had

custody rights over S.G.N. at the time, and (3) that he was

exercising those custody rights. Hague Convention art. 3. In this

case, Pappalardo challenged only the first of the three pre-

conditions, but she also claimed that Nicolson had consented to or

acquiesced in the child's retention, two separate exceptions under

the Convention.

The district court, in an extensive decision following

the taking of evidence, concluded that S.G.N.'s habitual residence

was Australia, that Nicolson had possessed and retained joint

custody rights, and that he had not consented or acquiesced to

Pappalardo's permanent retention of S.G.N. in the United States

through the state court proceedings or otherwise. The court

ordered S.G.N.'s return to Australia. Pappalardo appealed to this

court which granted a temporary stay but expedited this appeal.

On this appeal, the issues of habitual residence, consent

and acquiescence require discussion, and we begin with habitual

residence. The Hague Convention does not define "habitual

residence," but the majority of federal circuits to consider it

have adopted an approach that begins with the parents' shared

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intent or settled purpose regarding their child's residence.2 In

an unpublished opinion, this circuit has employed that approach.

Zuker v. Andrews, No. 98-1622, 1999 U.S. App. LEXIS 6964, at *2-3

(1st Cir. Apr. 9, 1999).

On appeal Pappalardo argues only that S.G.N. never formed

an initial habitual residence in Australia. Sensibly, she does not

claim that, assuming S.G.N.'s habitual residence was Australia

prior to the move back to Maine, merely retaining the child in

Maine without Nicolson's consent or acquiescence would establish a

new habitual residence. So we are not concerned with the standards

for evaluating such a claim. Cf. Robert v. Tesson, 507 F.3d 981,

990-91 (6th Cir. 2007) (concerning differing tests on change of

habitual residence).

Pappalardo's thesis is that she never shared Nicolson's

intent for S.G.N. to reside habitually in Australia because the

couple's marital relationship broke down and Pappalardo formed the

intent to leave with S.G.N. before the child was born. The

district court, however, found that while their marriage was

"fraught with difficulties from the beginning" and "[t]here were

numerous conversations about the viability of the marriage, both

2
Barzilay v. Barzilay, No. 09-2358, 2010 U.S. App. LEXIS 6918,
at *13 (8th Cir. Apr. 2, 2010); Maxwell v. Maxwell, 588 F.3d 245,
251 (4th Cir. 2009); Koch v. Koch, 450 F.3d 703, 715 (7th Cir.
2006); Gitter v. Gitter, 396 F.3d 124, 131-32 (2d Cir. 2005); Mozes
v. Mozes, 239 F.3d 1067, 1076-81 (9th Cir. 2001); Feder v. Evans-
Feder, 63 F.3d 217, 224 (3d Cir. 1995).

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before and after S.G.N. was born," "[t]hey lived together as a

married couple . . . from the time of their marriage until March

29, 2009" and "shared responsibilities for S.G.N." until that time,

when she was over three months old.

Knowing nothing of private reservations, an objective

observer would view S.G.N. as an Australian resident: her father

was a citizen of the country and obliged to stay there during his

term of service; her mother, being pregnant, had returned to

Australia to marry him; they had married there and were living

together there at the time of S.G.N.'s birth; and S.G.N. was born

there and lived there for several months with both her parents.

Judged by Nicolson's actions incident to Pappalardo's departure,

Pappalardo's intent to move permanently to the United States

seemingly became manifest and definitive only at that time.

As against this, Pappalardo's position rests centrally on

her earlier pre-birth declaration to Nicolson that she would move

back to the United States and her testimony that her subjective

intent at the time of the birth was not to remain in Australia.

She relies on the proposition that "[w]here the parents'

relationship has broken down . . . . contemporaneous[ly] with the

birth of the child, no habitual residence may ever come into

existence." Delvoye v. Lee, 329 F.3d 330, 333 (3d Cir. 2003). But

the circumstances in that case were strikingly different.

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 In Delvoye, the mother had traveled to a foreign country

merely to save expenses by giving birth there instead of in her

home country and with the intention from the outset of staying only

a short time. Id. at 334. Here, the marriage was certainly

troubled at the time of S.G.N.'s birth, but the evidence did not

require, and the district judge did not make, a finding that a

definitive breakdown had occurred before or at the time of the

child's birth. Pappalardo's behavior even after the birth remained

equivocal as to her ultimate plans.

Although Pappalardo told Nicolson's mother that she was

not going to return from Maine, she was apparently willing to

consider a reconciliation even after her arrival in the United

States. In fact, she agreed before leaving to give the marriage a

further trial and, in Maine, reserved a May 2009 ticket to return

to Australia. By her own testimony, it was after she returned to

the United States--and seemingly in part because of Nicolson's

alleged abusive behavior--that she reached an "epiphany" that the

marriage was over.

Pappalardo assumes that, if she were credited with a

fixed subjective intent to take her daughter permanently to the

United States, then all other circumstances would be irrelevant.

But "[s]tanding alone, of course, the mother's intent that the

child should one day live in the United States could not support a

finding of habitual residence." Ruiz v. Tenorio, 392 F.3d 1247,

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1253 n.3 (11th Cir. 2004). Ruiz accords with our own view that the

law is less rigid than Pappalardo assumes and that tests of

habitual residence must be applied to the circumstances of the

case.3

It is not easy here to attach an abstract label to a

complex of discrete facts, some of which push each way, especially

as we are concerned with the subjective intent of two individuals

and the objective circumstances of three. The district judge's raw

fact findings can be reversed only for clear error, Whallon v.

Lynn, 230 F.3d 450, 454 (1st Cir. 2000), and in this circuit some

deference might also be given to his application of the standard.

E.g., Bolton v. Taylor, 367 F.3d 5, 7-8 & n.1 (1st Cir. 2004). We

think the district court's decision on this issue must stand.

A child retained abroad over objection must be returned

to his or her state of habitual residence unless the respondent can

establish one of the provided-for defenses or exceptions. Hague

Convention arts. 12, 13; Friedrich v. Friedrich, 78 F.3d 1060, 1067

(6th Cir. 1996). Pertinently, the district court is not bound to

order the return of S.G.N. if Pappalardo establishes by a

3
Having moved back to Australia to live with Nicolson,
arguably Pappalardo's own habitual residence became Australia,
notwithstanding her later developed intention to relocate at a
future point to Maine. Cf. Holder v. Holder, 392 F.3d 1009, 1020
(9th Cir. 2004) ("[I]f a child is born where the parents have their
habitual residence, the child normally should be regarded as a
habitual resident of that country."); Cooper v. Casey, (1995) 18
Fam. L.R. 433 (Austl.) (same). We need not pursue the point.

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preponderance of the evidence that Nicolson "had consented to or

subsequently acquiesced in [Pappalardo's] removal or retention" of

S.G.N. Hague Convention art. 13(a); 42 U.S.C. § 11,603(e)(2)(B).

The exceptions are "narrow" and must be narrowly construed. 42

U.S.C. § 11,601(a)(4); State Department Text and Legal Analysis of

the Hague International Child Abduction Convention, 51 Fed. Reg.

10,493, 10,509 (Mar. 26, 1986).

We begin with consent, an inquiry that focuses on

Nicolson's intent prior to the child's retention, Baxter v. Baxter,

423 F.3d 363, 371 (3d Cir. 2005); Pappalardo's acquiescence claim

on appeal rests on the consent order entered after the retention.

Consent may be evinced by the petitioner's statements or conduct,

which can be rather informal. Id.; Gonzalez-Caballero v. Mena, 251

F.3d 789, 793-94 (9th Cir. 2001). Pappalardo claims that a variety

of conduct and circumstances establish that Nicolson both knew and

consented to S.G.N.'s permanent departure from Australia.

Pappalardo points to several facts already mentioned--

Nicolson's participation in extensive preparations for her and

S.G.N.'s trip and the transfer of the car's title--and to others:

Nicolson's invitation to a male friend to move into the house after

his family's departure, Nicolson's mother's e-mails expressing

sadness at losing the child, Nicolson's Internet posts on

Facebook.com that described S.G.N.'s departure as "my loss of my

family" and "his baby girl ha[ving] been ripped from him" and his

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change of status on that website from "married" to "single" (which

he quickly changed back), and various other statements.4

But Nicolson can also point to circumstances in his favor

consistent with his testimony that he believed Pappalardo and

S.G.N. would return to Australia and did not consent to more than

a temporary stay for S.G.N. in the United States. These include

his immediate arrangement for leave to fly to Sydney to confront

Pappalardo and seek legal advice after his mother informed him of

Pappalardo's intentions, Pappalardo's statements that she was open

to continuing to work on their marriage, his efforts to persuade

her to return thereafter and her reservation of a ticket to return.

Nowhere is it claimed that Nicolson expressly agreed that

the child could move permanently to the United States. His

behavior is at least as consistent with that of a man who wanted to

continue the marriage and, therefore, to avoid forcing a final

choice on his wife. If the district court had found consent, it

might not have been easy to find this clear error or an

unreasonable assessment; but, in finding that Pappalardo has not

carried her burden to show consent to a permanent relocation of the

child, the finding is no less protected against reversal.

4
Pappalardo highlights Nicolson's admissions that he told
Pappalardo he would "never keep [her in Australia] against [her]
will," that they had talked about S.G.N. leaving with her, and--
after their confrontation in Sydney--that he told her he "wasn't
going ahead with the lawyer because [he] wanted her to come back
with [S.G.N.] on her own accord."

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 The outcome of the case, therefore, turns finally on

acquiescence--an issue that the district court, in a generally

thorough opinion, moved past rather quickly (perhaps reasonably so

given the general language of American cases on the issue). But we

view most of the cases as distinguishable and not directly

answering the question whether Nicolson acquiesced to Pappalardo's

retention of S.G.N. in the United States by agreeing--through his

attorney--to the Maine state court's entry of the PFA order.

The district court concluded that the PFA order could not

bar Nicolson's petition because the Hague Convention takes

precedence over state custody determinations. True, under the

Convention "[t]he sole fact that a decision relating to custody has

been given in or is entitled to recognition in the requested State

shall not be a ground for refusing to return a child under this

Convention." Art. 17 (emphasis added). The Convention, after all,

confers the privilege of deciding custody on the state of habitual

residence. Arts. 1(b), 16, 19.

But it remains a defense to the Convention's requirement

of return to show that the party invoking a right to have the child

returned "acquiesced" in retention; and it is hard to think of a

more formal acquiescence than entering into a consent order

providing that the other parent be awarded custody. The consent

order in this case provided only for temporary custody but, if it

were read as agreeing to let the Maine courts determine final

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custody (as Pappalardo claims), we would think that this was an

acquiescence or, alternatively, a waiver of Hague Convention

rights. Cf. Journe v. Journe, 911 F. Supp. 43, 47-48 (D.P.R. 1995)

(voluntary dismissal of custody action treated as waiver).

The district court cited federal cases, and others exist,

that treat acquiescence as a pure subjective intent inquiry,5 and

surely Nicolson had no subjective intent in the state court

proceeding to have S.G.N. remain in the United States or to confer

final authority to decide her custody on an American court. After

all, he was privately seeking Hague Convention relief through the

Australian Central Authority at the very time he participated in

the state court proceeding, and he began his federal district court

case shortly afterwards.

But the federal cases mostly involve attempts to

characterize ambiguous conduct as a basis for inferred

acquiescence; by contrast, a clear and formal consent order by the

non-U.S. parent agreeing to let a state court decide final custody

would, both linguistically and for policy reasons, warrant

treatment as acquiescence under the Hague Convention. In fact,

American case law seems to recognize the need for exceptions to the

subjective intent standard and some American cases (in dictum) and

a United Kingdom case (as a direct holding) strongly support our

5
E.g., Baxter, 423 F.3d at 371; Antunez-Fernandes v. Connors-
Fernandes, 259 F. Supp. 2d 800, 813 (N.D. Iowa 2003); Pesin v.
Osorio Rodriquez, 77 F. Supp. 2d 1277, 1288 (S.D. Fla. 1999).

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view that a clear-cut formal consent order would be sufficient for

acquiescence.

Importantly, in Re: D (Abduction: Acquiescence), (1998)

1 Fam. 686 (Fam. Div.), aff'd, (1998) 2 F.L.R. 335 (C.A.) (U.K.),

a United Kingdom judge found acquiescence in a father's agreement,

through his attorney, to a Welsh custody court's making of a

residence order from which he did not appeal. See In re H. and

Others, [1998] A.C. 72 ("[T]he wronged parent may sign a formal

agreement that the child is to remain in the country to which he

has been abducted."); Friedrich, 78 F.3d at 1070 (stating that

acquiescence includes "a convincing written renunciation of

rights").6

However, we think that it remained Pappalardo's burden to

show that an unambiguous consent order did exist in this case. As

already explained, the policy of the Convention is return to the

child's habitual residence, the burden is Pappalardo's to prove a

defense, and the exceptions are to be narrowly construed. In this

instance we think the consent order is not the unequivocal

"acquiescence" or waiver that it might first appear; at best, the

order is, on the point in question, a cryptic collection of printed

6
See also In re H. and Others (Minors) (Abduction:
Acquiescence), [1998] A.C. 72 (H.L. 1997) (appeal taken from Eng.)
(U.K.) (stating general rule of subjective intent but recognizing
"strictly exceptional cases" in which a petitioner's words or
actions might constitute acquiescence regardless of his intent
because they show "clearly and unequivocally" that the wronged
parent is not insisting on the child's summary return).

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and handwritten phrases that yields no single answer as to who is

to decide on permanent custody.

This not surprising. A protection from abuse order is

primarily concerned with dealing with an immediate threat of abuse

and, where there are minor children, making arrangement for

temporary custody. This order addressed both of those issues and,

after providing for temporary custody, incorporated this

handwritten language: "TO BE AMENDED BY COURT OF COMPETENT

JURISDICTION. PA OBO [S.G.N.] TO BE DISMISSED UPON ISSUANCE OF

FINAL FM ORDER." The abbreviations can be deciphered--although not

with perfect assurance7--but how to read the sentences in relation

to a final custody determination is even less clear.

Pappalardo would read the sentences as reflecting an

agreement that a final custody determination be made only by the

Family Division of the Maine state court. On this reading, the

reference to a "court of competent jurisdiction" in the former

sentence might refer merely to the possibility of amending the

temporary custody order by order of any of several deciders

7
Read in conjunction with the caption, "PA OBO [S.G.N.]"
appears to be "protection from abuse on behalf of" the child in the
case. "FM" appears to mean "family matter" and is likely a
shorthand reference to an action over which the Family Division of
the Maine District Court has jurisdiction and which is governed by
the Family Division's procedural rules, Me. Rev. Stat. Ann. tit. 4,
§ 183 (2009); Me. R. Civ. P. 100A (2009), but the Maine statute and
rules seem to use "family matter" as a generic term for the nature
of the proceeding and conceivably the order here is using the
phrase generically, that is, without referring to a specific court.

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(judges, magistrates) who under Maine law might be empowered to

adjust temporary custody. See Me. Rev. Stat. Ann. tit. 4, §

183(1)(D)(2-A) (authorizing family law magistrates to modify the

custody and contact provisions of protection from abuse orders in

certain circumstances). And the latter sentence might mean that

the protection from abuse order would end when final custody was

resolved by the Maine state court.

Yet "court of competent jurisdiction" does not by its

terms refer only to Maine courts, and there are other reasons to

think it is not so limited.8 And while "final FM order" might

refer to a permanent custody order in the Maine state court, the

phrase does not expressly say so and may be a generic reference to

the type of matter rather than one to a Maine proceeding (see note

7, above). In any event--given that the prior sentence may

contemplate changes in temporary custody by a non-Maine court--it

is hard to read this second sentence as requiring that final

custody only be determined in Maine.

8
Maine has enacted the Uniform Child Custody Jurisdiction and
Enforcement Act, which conceives that courts elsewhere may modify
or override a Maine state court's custody order under at least
certain circumstances. See Me. Rev. Stat. Ann. tit. 19, §§ 1735-
1736, 1746-1747 (providing that custody determinations may be
modified and that Maine courts' jurisdiction to do so ceases to be
exclusive when "a court of another state," which includes a foreign
country's court, "determines that the child, the child's parents
and any person acting as a parent do not presently reside in
[Maine]").

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 Above all, the provision in which the quoted language

appears is directed to temporary custody for what, as the order

elsewhere makes clear, was a limited period. Permanent custody is

a different subject almost certainly of great importance to the

parents and not one that would necessarily be addressed in any way

in a consent order providing for temporary protection and custody.

Whatever the language may mean, it is impossible to read it as an

unequivocal agreement by Nicolson that permanent custody be

determined in a Maine court and nowhere else.

In sum, we do not have here a "clear[] and unequivocal[]"

expression of an agreement by Nicolson to have final custody

determined in a Maine court, In re H. and Others, [1998] A.C. 72,

nor "a convincing written renunciation of rights" to this effect,

Friedrich, 78 F.3d at 1070. What Pappalardo obtained by consent

was full temporary custody of the child at present with limited

rights of contact by Nicolson. Nicolson might have forestalled

even a temporary custody order by his Hague Convention proceeding

because the Convention itself provides,

After receiving notice of a wrongful . . .
retention of a child . . . the judicial or
administrative authorities of the Contracting
State . . . in which [the child] has been
retained shall not decide on the merits of
rights of custody until it has been determined
that the child is not to be returned under
this Convention or unless an application under
this Convention is not lodged within a
reasonable time following receipt of the
notice.

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Art. 16 (emphasis added). But he chose for tactical reasons not to

notify the state court of his Hague Convention petition before the

state court order issued. This does not defeat his right under the

Hague Convention to have permanent custody determined in Australia.

Because of the consent order, Pappalardo retains full

temporary custody of the child even upon its return to Australia

unless and until custody rights are adjusted by a court of

competent jurisdiction. Indeed, Nicolson himself is subject under

the protective order to stringent conditions which prevent him from

direct contact with the child other than that allowed for by the

order. The complications thus entailed provide further reason for

the parties to seek, in their own interest and that of their child,

a private resolution; but that is in their hands.

In fairness to Pappalardo, we note that there was no

wrongful removal of the child and that Pappalardo's arguments in

favor of retention are far from frivolous. On habitual residence

and consent, she had reasonable evidence and arguments on her side;

and the acquiescence issue turns on ambiguous language in a cryptic

order. Counsel on each side presented arguments of the highest

quality for which the court is duly grateful.

The judgment of the district court is affirmed. Each

side shall bear its own costs on this appeal.

It is so ordered.

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