Iain Walker v. Norene Walker , 701 F.3d 1110 ( 2012 )


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  •                               In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 11-3602
    IAIN W ALKER,
    Petitioner-Appellant,
    v.
    N ORENE W ALKER,
    Respondent-Appellee.
    Appeal from the United States District Court
    for the Northern District of Illinois, Eastern Division.
    No. 11 C 2967—Samuel Der-Yeghiayan, Judge.
    A RGUED S EPTEMBER 11, 2012—D ECIDED N OVEMBER 16, 2012
    Before B AUER, P OSNER, and W OOD , Circuit Judges.
    W OOD , Circuit Judge. Iain Walker, a citizen of Australia,
    filed this suit under the International Child Abduction
    Remedies Act (ICARA), 
    42 U.S.C. § 11601
     et seq., in an
    effort to compel his wife, Norene, a citizen of the United
    States, to return the couple’s three children to Australia.
    ICARA implements the Hague Convention on the Civil
    Aspects of International Child Abduction (the Conven-
    tion), T.I.A.S. No. 11,670, 1343 U.N.T.S. 89 (Oct. 25, 1980).
    2                                             No. 11-3602
    The Convention, to which both the United States and
    Australia are parties, “entitles a person whose child has
    wrongfully been [retained in] the United States . . . to
    petition for return of the child to the child’s country of
    ‘habitual residence,’ unless certain exceptions apply.”
    Norinder v. Fuentes, 
    657 F.3d 526
    , 529 (7th Cir. 2011).
    The district court denied Iain’s petition. It found that
    notwithstanding the fact that the Walker family lived in
    Australia from 1998 until 2010, the children’s habitual
    residence had become the United States by the time
    Iain filed his petition. In addition, as the court saw it,
    Norene’s act of keeping the children in the United States
    could not have been “wrongful” within the meaning of the
    Convention for two reasons: first, Iain was not exercising
    his custody rights at the relevant time; and, second, Iain
    had consented to the children’s remaining in the United
    States permanently. Iain challenges all of these rulings
    on appeal. We conclude that the record does not
    support the court’s decision and that a remand is neces-
    sary before the case can be resolved.
    I
    Iain and Norene were married in Chicago in 1993.
    They lived in Seattle, Washington, until 1998 when they
    moved to Perth, in Western Australia. The couple’s
    eldest child was born in the United States in 1997, but
    lived in this country only one year; the two younger
    children were born in Australia in 1999 and 2001.
    Although Norene testified that she and Iain initially
    intended to stay in Australia for only five years, they
    No. 11-3602                                               3
    ended up spending 12 years there. Over this period, they
    and their children appeared to be well-settled: they
    owned a home, furniture, and a dog named Chubba; the
    children attended school, had friends, and participated
    in activities; and Iain worked as a software test engineer
    while Norene cared for the children.
    In June 2010, the Walkers traveled to the United States.
    When they left Australia, both Iain and Norene ex-
    pected that Norene and the children would remain in
    the United States for six months to one year. There
    the common ground ends. According to Iain, the plan
    was for Norene and the children to live with Norene’s
    parents in Chicago while the family demolished its
    existing house in Perth and built a new one. According
    to Norene, the trip was intended as an extended prelude
    to a permanent move to the United States; she testified
    (a bit inconsistently, it seems to us) that Iain promised
    to look for a job in Chicago and that they looked at
    real estate in San Francisco and Seattle. Although both
    recalled that Norene and the children had concrete plans
    to return to Australia by June 2011 at the latest, Norene
    labeled this most likely a temporary visit and Iain under-
    stood it to be a permanent return. After spending
    several weeks with Norene and the children in the
    United States, Iain returned to Australia in late July 2010.
    As may be apparent, all was not well with the marriage.
    In November, Norene filed for divorce in Cook County,
    Illinois. As of that time, she said, she had not made up
    her mind whether she (and presumably the children)
    would remain in the United States permanently or
    return to Australia.
    4                                                No. 11-3602
    Upon receiving Norene’s petition for divorce, Iain’s
    lawyer in Australia sent a letter to Norene’s attorney
    offering to settle the divorce out of court. The lawyer
    described the letter, which was transmitted on January 21,
    2011, as a “once off attempt to have all outstanding
    matters resolved.” In it he made, “on a without prejudice
    basis,” certain proposals that were expressly conditioned
    on Norene’s acceptance of Iain’s offer. For example, in
    exchange for granting primary custody to Norene and
    allowing the children to remain in the United States, Iain
    wanted to be guaranteed custody of the children for the
    full nine weeks of their summer vacation and for two
    weeks over the Christmas holidays; he further requested
    that he be allowed to visit the children in the United
    States at least twice a year. The letter also dealt with
    the division of property.
    Notably, the letter explicitly referred to the Hague
    Convention. On Iain’s behalf, the lawyer asserted that
    “[t]he parties’ habitual residence is quite clearly Austra-
    lia,” and that Iain “would clearly be entitled to bring
    an Application under the Hague Convention to have
    the children returned to Australia.” In closing, the letter
    stated “this offer is open for a period of 7 days . . . and if
    not accepted [Iain] will then proceed to exercise his
    full rights pursuant to the Hague Convention, and
    do all that is required to ensure that proceedings are
    transferred” to the Family Court of the State of Western
    Australia.
    The January 21 letter marked a turning point for
    Norene. She regarded it as giving her permission to stay
    No. 11-3602                                                 5
    in the United States and indicating that Iain “didn’t
    want the kids.” She testified that shortly after receiving
    the letter, she made up her mind not to return to Austra-
    lia. Norene did not, however, accept Iain’s offer
    of settlement; after an exchange of several more
    letters, the negotiations ended without a resolution in
    mid-February. Iain immediately filed a request for
    the return of the children with the Australian Central
    Authority charged with administering the Convention.
    In May, Iain filed a petition for return in the district
    court for the Northern District of Illinois.
    Following a two-day evidentiary hearing, the district
    court denied the petition. This appeal followed.
    II
    A
    Before discussing the merits of the district court’s
    decision, we must address two preliminary issues. First,
    Norene argues that this case was mooted by an Illinois
    state-court judgment awarding sole custody of the
    children to Norene. According to Norene, the Illinois
    judgment conclusively resolves the parties’ custody
    dispute in her favor and thus precludes this court from
    ruling that the Hague Convention requires the custody
    determination to occur in the courts of Australia.
    Norene is mistaken: the case is not moot. Article 17 of
    the Hague Convention expressly states that “[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
    6                                            No. 11-3602
    be a ground for refusing to return a child under this
    Convention.” (Emphasis added.) This treaty provision
    qualifies the finality of any state-court custody judg-
    ment and thus ensures that there is still a live con-
    troversy before the federal court.
    Norene relies on Navani v. Shahani, 
    496 F.3d 1121
     (10th
    Cir. 2007), for the proposition that an order granting
    custody to one or another of the parents can moot a
    Hague Convention case, but Navani did not speak to
    this question. Indeed, the issue of habitual resi-
    dence—and thus the question of which country’s courts
    had the power finally to determine custody under the
    Convention—was not before the court in Navani; all
    parties agreed that the child’s habitual residence was
    England. Rather, the question on appeal was whether
    the U.S. court that adjudicated the father’s petition for
    return erred in concluding that an English custody
    order granted some custody rights to the father. 
    Id. at 1125-26
    . While the appeal was pending, an English
    court entered a new custody order that granted the
    father sole custody. 
    Id. at 1126
    . The Tenth Circuit con-
    cluded that this superseding custody order mooted the
    appeal—both because any possible error in the inter-
    pretation of the previous order was no longer of any
    moment given the new order, and because relief that
    directly conflicted with that ordered by the courts of
    the child’s habitual residence would undermine the
    Hague Convention’s purpose of allowing those courts
    to resolve the parents’ custody disputes. 
    Id. at 1127-29
    .
    Here, in contrast, Iain and Norene dispute habitual
    residence. Until that question is resolved, we cannot say
    No. 11-3602                                               7
    which country’s courts have the power to resolve the
    issue of custody. As Article 17 of the Convention
    implies, this antecedent question must be answered
    before we know what weight to give to the judgment of
    the Illinois court.
    This makes sense, given the purpose of the Convention.
    Accepting Norene’s position that an abducting parent
    may render a petition for return moot by racing to a
    courthouse in her chosen country to obtain a custody
    judgment would turn the Convention on its head. The
    entire purpose of the Convention is to deter parents
    from absconding with their children and crossing inter-
    national borders in the hopes of obtaining a favorable
    custody determination in a friendlier jurisdiction. See
    Elisa Pérez-Vera, Explanatory Report on the 1980 Hague
    Child Abduction Convention, in Acts & Documents of
    the Fourteenth Session, Vol. 3, 17 (1980). To consider
    this case moot would encourage the very sort of jurisdic-
    tional gerrymandering the Convention was designed
    to prevent. We note as well that courts faced with
    similar arguments based on abstention, the Rooker-Feldman
    doctrine, and res judicata have held that these doctrines
    do not deprive the federal courts of jurisdiction to rule
    on the merits of Convention petitions, either in the
    first instance or on appeal. See, e.g., Yang v. Tsui, 
    416 F.3d 199
    , 201-04 (3d Cir. 2005) (Younger abstention not
    appropriate); Silverman v. Silverman, 
    338 F.3d 886
    , 894 (8th
    Cir. 2003) (Rooker-Feldman doctrine inapplicable); Holder
    v. Holder, 
    305 F.3d 854
    , 864-66 & 867-72 (9th Cir. 2002)
    (res judicata inapplicable; Colorado River abstention inap-
    propriate); Mozes v. Mozes, 
    239 F.3d 1067
    , 1085 n.55 (9th
    8                                             No. 11-3602
    Cir. 2001) (Rooker-Feldman doctrine inapplicable). Norene
    raises several cursory arguments based on the latter
    doctrines; like our sister circuits, we find no merit in
    these points.
    B
    The second preliminary issue concerns the district
    court’s decision to admit the January 21 letter into
    evidence over Iain’s objection that the letter is an offer
    of settlement and thus is inadmissible under Federal
    Rule of Evidence 408. Rule 408 says that evidence of
    “furnishing or offering or promising to furnish . . . a
    valuable consideration in . . . attempting to compromise
    the claim” may not be admitted to “prove liability for,
    invalidity of, or amount of a claim that was disputed as
    to validity or amount.” Iain argues that this language is
    broad enough to cover the letter’s use here: the letter
    was an offer to compromise the parties’ divorce
    dispute; the divorce proceeding included claims over
    both property and child custody; and the letter was
    being offered to prove the “invalidity” of Iain’s petition
    for the return of the children on the theory that he
    had waived that right by consenting to Norene’s custody.
    The district court rejected Iain’s argument under
    Rule 408 and admitted the letter, however, because in
    its view, the divorce and Convention proceedings were
    “entirely separate.” The court also believed that Iain
    had failed to show that the use of the letter in the Con-
    vention case “would impair the settlement process in
    the underlying divorce action.”
    No. 11-3602                                                9
    This ruling is flawed in at least two respects. First, the
    divorce and Convention proceedings are not “entirely
    separate.” A decision or action in one proceeding
    almost inevitably will have an impact on the other. A
    successful petition for return identifies the proper
    forum for the custody determination in a divorce case,
    and (as the losing parent often fears) the courts of the
    habitual residence may be sympathetic to the local
    parent’s position. More importantly, although the dis-
    trict court was correct to consider Rule 408’s purpose
    in deciding whether to admit the letter, see Zurich Am.
    Ins. Co. v. Watts Indus., Inc., 
    417 F.3d 682
    , 689 (7th Cir.
    2005), in focusing on the letter’s potential to impede
    settlement in Iain and Norene’s ongoing divorce action,
    the district court was looking at the wrong thing.
    Rule 408 addresses the concern that a norm of admitting
    offers of settlement will reduce efforts to settle by others
    in the future; its focus is not on the effect of admitting
    an offer of settlement on these parties’ likelihood of set-
    tling. Almost by definition, the parties in the present
    case have already failed to settle and are now deeply
    involved in litigation, and so for them, there is
    nothing left to chill.
    When viewed in the proper perspective, there is little
    doubt that admitting a document like the January 21
    letter has the potential to deter future efforts to settle
    international divorce and custody disputes. A parent
    in Iain’s situation with an interest in reaching an
    out-of-court settlement with his or her spouse would
    have no incentive to make an offer without including
    some mention of child custody (often the single most
    10                                              No. 11-3602
    significant issue in a divorce). But if that parent knows
    that any offer related to custody may later be relied
    upon to find that the parent has abandoned his custody
    rights or consented to the child’s remaining abroad,
    then that parent will be less willing to make any offer at
    all. In our view, the court should have excluded the
    letter pursuant to Rule 408.
    That said, we must still consider whether this error
    had an effect on the outcome of the case. Since this was
    a trial to the court, the contents of the letter were very
    likely to come to the judge’s attention anyway: the
    court had to read the letter in order to determine
    whether it was admissible. At that point, the horse was
    effectively out of the barn. In any event, the critical ques-
    tion is whether the judge was entitled to give weight to
    the letter. He should not have done so. Moreover, as
    we explain below, the letter in any event provides no
    basis for denying Iain’s petition for return.
    III
    Iain challenges the district court’s findings that he
    (1) failed to establish that the children were habitually
    resident in Australia; (2) failed to establish that he was
    exercising his custody rights; and (3) consented to the
    children remaining permanently in the United States.
    Because any one of these findings would suffice to
    defeat a petition for return, we must affirm unless we
    conclude that the district court reached the wrong con-
    clusion on each of them.
    No. 11-3602                                               11
    A
    Everyone agrees that this is not a case of wrongful
    removal of the children; it is a case of wrongful reten-
    tion. The first question is therefore when the retention
    began. The district court identified May 4, 2011, the day
    Iain filed his petition for return in the district court,
    as the date the retention began. It considered that to be
    the date when Iain first “unequivocally signaled h[is]
    opposition to [the children’s] presence in the United
    States.” Although Iain had expressed his intent to file
    a petition for return of the children in the January 21
    letter (and again in a follow-up letter on February 16),
    the district court declined to view these statements as
    “unequivocal[] signal[s]” of opposition because, in the
    court’s view, “it was apparent that Petitioner was
    referring to the Convention as a bargaining chip.”
    The date on which the wrongful retention commenced
    is a question of fact on which we would normally defer
    to the district court. See Karkkainen v. Kovalchuk, 
    445 F.3d 280
    , 290 (3d Cir. 2006). Here, however, nothing but
    speculation supports the district court’s “bargaining
    chip” idea. Worse, whether Iain’s mention of the Con-
    vention was meant as a “bargaining chip” is irrelevant
    to whether Iain signaled his opposition to the children
    remaining in the United States in the January 21 letter.
    What matters is that the January 21 letter unequivocally
    says that “[t]he parties’ habitual residence is quite
    clearly Australia.” It goes on to point out that the “clearly
    appropriate forum” for the parties’ divorce proceedings
    is Australia and that it is “an abuse of process to unilater-
    12                                            No. 11-3602
    ally decide to remain in the United States.” It then
    repeats that “Western Australia is the habitual residence
    of the children.” Finally, the letter announces Iain’s
    intent to file a petition under the Hague Convention, a
    step that he confirmed in his February 16 letter. Under
    the circumstances, it is hard to see how much more
    “unequivocal” one could be.
    The district court was apparently under the impres-
    sion that Iain then did nothing during the five months
    between the exchange of letters with Norene and the
    filing of the petition for return on May 4, but if so,
    it was mistaken. The petition reveals that in mid-
    February, Iain filed a request for return with the Cen-
    tral Authority in Australia. The Convention provides for
    the establishment of Central Authorities (designated
    agencies responsible for administering the Convention)
    and contemplates that parents will seek their assistance
    in obtaining the return of their children. Arts. 6-10.
    In Australia, the Central Authority directs parents
    seeking return of their children to file a request for re-
    turn. See About International Child Abduction, Attorney
    General’s Department, Australian Government, http://
    www.ag.gov.au/Families/Pages/Internationalfamilylaw/
    FAQaboutinternationalparentalchildabduction.aspx#to
    (last visited Nov. 13, 2012). That was exactly what Iain
    did here. In acting promptly to secure the return of the
    children according to procedures approved by both the
    Convention and the government of Australia, Iain
    properly signaled his opposition to the children’s re-
    tention in the United States. For the district court to
    conclude that this opposition was not apparent until
    No. 11-3602                                                13
    May 4 was clear error. Accordingly, for purposes of
    our analysis, we assume that the retention began on
    January 21, or, at the latest, several weeks thereafter.
    Before moving on, we note our concern with the
    district court’s interpretation of the January 21 letter.
    The district court inferred that Iain was uninterested in
    the children except to the extent that they could be
    used as a “bargaining chip” to obtain a more favorable
    property settlement. We find nothing in the letter
    that supports such a view. Under the Convention, the
    merits of Iain and Norene’s custody dispute are
    irrelevant to the distinct question whether that dispute
    should be resolved by the courts of Australia or the
    United States. Arts. 1 & 19; see also Friedrich v. Friedrich,
    
    78 F.3d 1060
    , 1065 (6th Cir. 1996). Assumptions about
    likely motives of either parent also play no part in Con-
    vention decisions. As it happens, fathers are far more
    likely than mothers to file petitions for return and
    access under the Convention. In 2008 (the last year for
    which detailed statistics are available), fathers filed
    roughly 69% of global applications (and 59% of U.S.
    applications) for return and roughly 79% of global ap-
    plications (and 73% of U.S. applications) for access. See
    Nigel Lowe, A Statistical Analysis of Applications Made in
    2008 Under the Hague Convention of October 25, 1980 on
    the Civil Aspects of International Child Abduction, Pt. I, 14,
    54 (2011); 
    id.
     at Pt. III, 199, 209. (We say “roughly”
    because the Hague Conference on Private International
    Law reports statistics on the people against whom
    petitions for return are filed, but it does not specifically
    report statistics on who files the petitions. Inferring how
    14                                             No. 11-3602
    many fathers file petitions for return or access is thus
    somewhat imprecise. Although in the vast majority of
    cases in which a petition is filed against a mother, the
    petitioner will be the father, the petitioner could con-
    ceivably be a grandparent, other relative, or an institu-
    tion as well.)
    B
    To prevail on his petition, Iain was required to show
    that Australia was the children’s habitual residence at
    the time of their retention in the United States. We ex-
    plained in detail how to determine a child’s habitual
    residence in Koch v. Koch, 
    450 F.3d 703
     (7th Cir. 2006). In
    a case alleging wrongful retention, we determine a
    child’s habitual residence by asking “whether a prior
    place of residence . . . was effectively abandoned and a
    new residence established . . . ‘by the shared actions
    and intent of the parents coupled with the passage of
    time.’ ” Norinder, 
    657 F.3d at 534
     (quoting Koch, 
    450 F.3d at 715
    ). Because the parents often dispute their inten-
    tions, “the court should look at actions as well as dec-
    larations” in determining whether the parents “shared
    an intent to abandon a prior habitual residence.” Koch,
    
    450 F.3d at 715
    . In an appeal from a habitual residence
    determination, the court reviews findings on the parties’
    intent for clear error, while “[t]he ultimate determina-
    tion of habitual residence is a mixed question of law and
    fact to which we will apply de novo review.” 
    Id. at 710
    .
    The district court found that the children’s habitual
    residence became the United States by January 21, 2011, at
    No. 11-3602                                              15
    the latest. This conclusion was premised on the fol-
    lowing findings: (1) that Iain consented to the
    children’s living in the United States in the January 21
    letter; (2) that five months passed between the letter
    and the filing of the petition for return in district court;
    and (3) that Iain and Norene looked for houses in
    the United States.
    As we already have explained, the first finding funda-
    mentally misreads the January 21 letter. There is no
    need to repeat that discussion. Norene did not accept
    the offer contained in the letter, and it therefore
    dropped out of the picture.
    We have already pointed out the problem with the
    second finding as well. Iain took prompt steps to secure
    the children’s return by filing a request for return with
    the Australian Central Authority in mid-February 2011,
    as soon as it became apparent that a negotiated settle-
    ment was not forthcoming.
    That leaves the third finding, which suggests that
    the court may have concluded that Iain and Norene
    came to the United States in June 2010 with the shared
    intention of establishing a new habitual residence
    in this country. Iain and Norene certainly could have
    established a new habitual residence in this fashion. See,
    e.g., 
    id. at 715
     (change in habitual residence accomplished
    by a shared intent to abandon a prior habitual residence
    plus an “actual change in geography”) (citing Mozes,
    
    239 F.3d at 1078
    ). But the district court never actually
    said that they did so, and we cannot find enough in the
    record to support the conclusion that Iain and Norene
    16                                             No. 11-3602
    arrived in the United States with the shared intention
    of abandoning Australia and establishing a new habitual
    residence here.
    In considering the parties’ intent, the district court
    focused on Norene’s testimony that she and Iain looked
    at real estate in San Francisco and Seattle when they
    arrived in the United States in 2010. Norene testified
    that she and Iain “talked extensively” about the housing
    market, that she and a friend looked at a few houses in
    San Francisco (while Iain remained in the car), and that
    she and Iain met with a real estate agent in Seattle. Else-
    where in its opinion, the district court also noted that
    it was crediting Norene’s testimony that she and Iain
    had always intended to return to the United States after
    their 1998 move. The district court seemed to view this
    intention to return as further evidence that the trip was
    understood to be a permanent move, notwithstanding
    the fact that Iain and Norene had been living in
    Australia for 12 years by the time they came to the
    United States in 2010.
    While parts of Norene’s testimony thus show that
    the couple might have been considering relocating to
    the United States, this is a perilously thin basis for
    inferring that their trip in 2010 was truly intended to be
    the start of that permanent move. Moreover, other
    uncontroverted evidence undermines this inference.
    For instance, the bulk of the family’s possessions, as well
    as Chubba the family dog, remained in Australia; Iain
    and Norene were in the process of rebuilding their
    house in Australia; and Norene herself stated—both in
    No. 11-3602                                             17
    testimony and in emails to friends—that she intended
    to stay in the United States until June 2011 at the latest,
    and that she did not make up her mind to remain
    in the United States until she received the January 21
    letter. The evidence that Iain and Norene mutually in-
    tended to abandon Australia and take up residence
    in the United States is simply too contradictory and
    underdeveloped to support the district court’s habitual
    residence finding. Nor were the children in the United
    States for so long prior to the filing of the petition for
    return that their lives “bec[a]me so firmly embedded in
    the new country as to make [them] habitually resident”
    in the United States regardless of their parents’ lack of
    mutual intent to establish a habitual residence here.
    Mozes, 
    239 F.3d at 1078
    .
    C
    Assuming that the children’s habitual residence
    was Australia, Iain must still show he was “actually
    exercis[ing]” his custody rights at the time of the reten-
    tion. Art. 3. The standard for finding that a parent
    was exercising his custody rights is a liberal one, and
    courts will generally find exercise whenever “a parent
    with de jure custody rights keeps, or seeks to keep, any
    sort of regular contact with his or her child.” Bader v.
    Kramer, 
    484 F.3d 666
    , 671 (4th Cir. 2007) (internal quota-
    tion marks omitted). Indeed, “a person cannot fail to
    ‘exercise’ [his] custody rights under the Hague Conven-
    tion short of acts that constitute clear and unequivocal
    abandonment of the child.” Friedrich, 
    78 F.3d at 1066
    .
    18                                            No. 11-3602
    As the Sixth Circuit has explained, sound policy
    reasons support this liberal standard. U.S. courts are not
    well equipped to determine whether the courts of a
    child’s habitual residence would conclude that a parent
    with de jure custody rights has nevertheless forfeited
    those rights “because he or she was not acting suf-
    ficiently like a custodial parent.” 
    Id. at 1065
    . Moreover,
    any determination that a parent has failed to behave
    in a sufficiently parent-like fashion comes dangerously
    close to an adjudication on the merits of the parents’
    custody dispute, which (to repeat) is something the
    Convention expressly reserves for the courts of the
    child’s habitual residence. Id.; see also Arts. 1 & 19.
    Finally, the “confusing dynamics” of domestic strife
    “make it difficult to assess adequately the acts and mo-
    tivations of a parent.” Friedrich, 
    78 F.3d at 1065
    .
    Although it acknowledged the liberal nature of the
    standard, the district court nevertheless found that
    Iain had “abandoned” his children. In support of this
    rather extreme conclusion, the court noted that Iain did
    not return to the United States after July 2010, that he
    ceased supporting Norene financially after January 21,
    2011, and that his January 21 letter was mainly con-
    cerned with “the negotiation of support payments and
    property settlement.”
    All of those things may be true, but they do not add up
    to “unequivocal abandonment” of the children (as op-
    posed, perhaps, to Norene). The district court overlooked
    Norene’s undisputed testimony that Iain keeps “regular
    contact” with the children by speaking to them weekly
    No. 11-3602                                             19
    over Skype. Further, in faulting Iain for failing to return
    to the United States after July 2010, the district court
    ignored Norene and Iain’s testimony that they had
    always intended that Iain would return to Austra-
    lia—both for work and to oversee the construction of
    their house—in July or early August 2010. The court
    also failed to mention that Norene testified that Iain
    had plans to spend Christmas in the United States in
    2010, and that he canceled those plans only after
    Norene filed for divorce. Finally, just as the January 21
    letter does not show that Iain consented to the children’s
    remaining in the United States, it similarly does not
    show that Iain was interested exclusively in reaching
    a settlement regarding marital property. A letter that
    requests custody for the children’s entire summer
    vacation plus Christmas and asks for multiple visitation
    opportunities at other times of the year can hardly be
    characterized as indifferent to custody issues.
    This leaves Iain’s lack of financial support after
    January 21, 2011, as the sole basis for finding abandon-
    ment. This is not enough. Because non-exercise is evalu-
    ated at the time of the retention—which, as we have
    explained, must have occurred on January 21 or shortly
    thereafter—Iain’s failure to provide support after the
    retention is irrelevant to whether he was exercising
    his custody rights when the wrongful retention began.
    See, e.g., Baxter v. Baxter, 
    423 F.3d 363
    , 369 (3d Cir.
    2005) (“[T]he record demonstrates that [the father]
    ‘actually exercised’ his custody rights under article 3 at
    the time of the removal and retention.”); Mozes, 
    239 F.3d at 1084-85
     (“Nor is there any doubt that [the father]
    20                                              No. 11-3602
    was exercising his parental rights and responsibilities
    up until the time [the mother] sought custody.”).
    Neither the district court nor Norene identifies any case
    in which a court has found abandonment based on a
    lack of financial support, let alone a case that finds that
    a parent may forfeit his rights under the Convention by
    failing to send money to the abducting spouse even as
    he works actively to have the children returned. Indeed,
    the cases that address some version of this issue have
    found that a parent does not fail to exercise his
    custody rights merely by failing to provide financial
    support for some period prior to the removal or reten-
    tion. See Baxter, 
    423 F.3d at 369-70
     (lack of financial sup-
    port for several weeks prior to the retention did not
    indicate that father was not exercising custody rights);
    Habrzyk v. Habrzyk, 
    759 F. Supp. 2d 1014
    , 1023 (N.D. Ill.
    2011) (infrequent financial support insufficient to show
    non-exercise); In re Polson, 
    578 F. Supp. 2d 1064
    , 1072
    (S.D. Ill. 2008) (father was exercising custody rights
    even though he ceased to support family financially
    after mother filed for divorce). Finally, we note that
    whether one parent is required to pay support to the
    other is an issue on the merits of a divorce proceeding,
    and we are thus wary of allowing the presence or
    absence of financial support to factor too prominently
    in the analysis of the exercise of custody rights at the
    time of the removal or retention.
    Using the appropriate standard, we cannot find on the
    current record that Iain’s failure to provide financial
    assistance while Convention proceedings are pending
    amounts to a failure to exercise his custody rights.
    No. 11-3602                                              21
    D
    Finally, even if Iain had established a case for return
    under the Convention, he could have waived that right
    if he consented to, or acquiesced in, the children’s re-
    maining in the United States with their mother. Art. 13.
    Consent and acquiescence are analytically distinct
    defenses to return under the Convention. Baxter, 
    423 F.3d at 371
    . The consent exception applies when a petitioning
    parent, either expressly or through his conduct, agrees
    to a removal or retention before it takes place. 
    Id.
     A par-
    ent’s consent need not be formal, but “it is important
    to consider what the petitioner actually contemplated
    and agreed to in allowing the child to travel outside its
    home country.” Id.; see also Mota v. Castillo, 
    692 F.3d 108
    ,
    117 (2d Cir. 2012); Larbie v. Larbie, 
    690 F.3d 295
    , 308-09
    (5th Cir. 2012). Acquiescence is implicated if a peti-
    tioning parent agrees to or accepts a removal or retention
    after the fact. Baxter, 
    423 F.3d at 371
    . Unlike consent,
    acquiescence must be formal, and might include “testi-
    mony in a judicial proceeding; a convincing written
    renunciation of rights; or a consistent attitude of acquies-
    cence over a significant period of time.” Friedrich, 
    78 F.3d at 1070
    . One way or another, the “exceptions [must]
    be drawn very narrowly lest their application under-
    mine the express purposes of the Convention.” 
    51 Fed. Reg. 10494
    , 10509 (Mar. 29, 1986). It is also worth remem-
    bering that the Article 13 exceptions are permissive: a
    court may order return even if it finds that the parent
    opposing the petition has established that one of the
    exceptions applies. Art. 13; 51 Fed. Reg. at 10509.
    22                                               No. 11-3602
    The district court found that Norene had established
    consent. The bases for this conclusion will by now be
    familiar: they are the January 21 letter, which the
    district court characterized as indicating Iain’s “uncon-
    ditional consent” to the children remaining in the
    United States, Iain’s failure to visit the United States
    after July 2010, and his failure to provide financial support.
    Our concerns with the district court’s analysis will
    also be familiar. The January 21 letter cannot be read as
    an expression of consent, let alone unconditional con-
    sent, to anything. The letter is an opening offer, a single
    stage in a negotiation; it concedes nothing and in any
    event was rendered null by the parties’ failure to come
    to an agreement. It is apparent that Iain did not
    “actually contemplate [or] agree” to the children’s re-
    maining in the United States without Norene’s agree-
    ment to conditions that she consistently rejected.
    Apart from the letter, the district court’s remaining
    justifications are either clearly erroneous or irrelevant.
    As previously discussed, Iain was involved in the chil-
    dren’s lives after July 2010, and the discussion of fin-
    ancial support is unrelated to Iain’s consent or acquies-
    cence in the children’s remaining in the United States.
    IV
    Having concluded that the district court’s decision in
    this case cannot stand, we are left with the question of
    how to proceed. Two options exist: an outright order
    for the children to be returned to Australia pursuant to
    No. 11-3602                                             23
    the Convention, or a remand for further factfinding.
    Although we regret the need to prolong this case
    any further, we conclude that the latter is necessary.
    Several crucial issues were not fully developed in the
    previous proceedings, and these gaps in the record must
    be filled before a final decision is rendered. On remand,
    the district court must resolve at least the following
    questions, taking evidence as necessary:
    1. What was Iain and Norene’s mutual intent re-
    garding the trip to the United States in June 2010?
    Was this intended as an extended vacation or as
    a permanent move?
    2. What has been the precise nature of Iain’s partici-
    pation in the Illinois divorce proceedings, and to
    what extent, if at all, does this participation indicate
    that Iain either consented to or acquiesced in the
    children’s retention in the United States?
    3. To the extent the children have “attained an
    age and degree of maturity at which it is appropriate
    to take account of their views,” Art. 13, what is the
    children’s attitude to being returned to Australia? In
    conducting this inquiry, we caution that the district
    court must be attentive to the possibility that the
    children’s views may be the product of “undue influ-
    ence” of the parent who currently has custody. 
    51 Fed. Reg. 10510
    .
    V
    In returning this case to the district court, we em-
    phasize again that this is a dispute about which court
    24                                          No. 11-3602
    system should resolve the underlying issue of child
    custody; it is not a dispute about which parent is
    preferable or the terms under which custody will be
    granted. We are confident that either the courts of
    Western Australia or the courts of Illinois are fully
    capable of resolving these matters. In that spirit, we
    R EVERSE and R EMAND the judgment of the district court.
    11-16-12