Father signed an agreement with Mother (his wife) to take Child from Argentina to the U.S. for one year. In December 2001, Mother went to U.S. with child. Apparently, Mother told U.S. immigration that they were only entering as tourists, but she really intended to get a job in the States. The child enrolled in school in January 2002, and shortly thereafter Father lost track of their whereabouts. In March 2002, he found them and Mother said Child would not be returning to Argentina. In June 2002, Father learned of his rights under the Hague Convention.
After October 2003, Father had some difficulty communicating with Child. Then, in January 2003, Mother said she would come back in June 2003. Father agreed so that Child could finish the school year. June rolled around and Mother was still a no-show. So, Father filed a petition with the Argentinian central authority. Father indicated that he did not know where child was until March 2004 when he filed a Hague petition in Florida.
The court masterfully laid out the elements of a Hague case. It had no trouble finding that this was prima facie case of a wrongful retention. Then, the court examined the affirmative defenses to return. Of course, Mother asserted that Father filed his petition too late--past the one-year time limit under Article 12.
The court found first that the petition came within one year because "retention only became wrongful under the Convention when the Petitioner became aware of the Respondent's true intention not to return." Even assuming that it hadn't, the court held that the doctrine of equitable tolling should apply here because not until June of 2003 did Father "affirmatively became aware that the ... [Mother] and child were not returning to Argentina."
Even further, the court held that even if the year limit had passed, the child would still be returned because he hadn't settled in its new environment. Thus, the court left no place for the mother to hide from returning the child to Argentina.