FINDINGS OF FACT AND CONCLUSIONS OF LAW Joseph Marcel Etienne Jean Poix (“Petitioner”) and Susibel Altagracia Espaillat Santana (“Respondent”) were married in the Dominican Republic from 2014 to 2020. During their marriage, they had two children, referred to herein by their initials, M.G.E. and A.F.E. (collectively, the “children”). Although their parents resided in the Dominican Republic at the time of their conception, both children were born in the United States, making them U.S. citizens. In August 2021, after the marriage ended, Respondent traveled to the United States with M.G.E. and A.F.E., while Petitioner remained in the Dominican Republic. Respondent and the children have since remained in the New York City area. This case arises under the Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89 (the “Hague Convention” or the “Convention”). Petitioner contends that Respondent removed M.G.E. and A.F.E. from the Dominican Republic to the United States unlawfully and without his consent, see Dkt. 1 (“Petition”) 1, and he seeks an order requiring the children’s return to the Dominican Republic, id. at 12. The question of whether the children must return to the Dominican Republic is of course but one aspect of the broader custody dispute resulting from the dissolution of the parties’ marriage. But it is not for this Court to adjudicate the children’s custody: as Congress has explicitly declared in the legislation implementing the Convention, this Court is empowered “to determine only rights under the Convention and not the merits of any underlying child custody claims.” 22 U.S.C. §9001(b)(4). Any determination of the custodial issues must be made by the courts of the Dominican Republic, under whose authority the parties were married and divorced and under whose authority custody arrangements for the children have been determined. Thus, in resolving this Petition, the Court expresses no view as to what upbringing for the children would be appropriate, fair, or otherwise in the best interests of those involved. Indeed, the Convention explicitly instructs that “[a] decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.” Hague Convention art. 19. Instead, this Court herein addresses only the much narrower issue of whether to order the children returned to the Dominican Republic given the circumstances of their removal from that country to the United States. On August 17th and 18th of this year, the Court held a bench trial on that issue. At that trial, the Court received documentary exhibits and live testimony from Petitioner, Respondent, and their witnesses. Under the Hague Convention and the federal statute that implements it, a prima facie case for return is established if the children were removed from their country of habitual residence, in violation of rights of custody under that country’s laws, so long as the holder of those rights was exercising them at the time of the removal (or would have exercised them but for the removal). Only the last of these three elements is in dispute, and it plainly has been proven. Respondent also has raised two affirmative defenses permitted under the Hague Convention: first, that Petitioner was not exercising his custody rights at the time of removal, and second, that a grave risk exists that returning the children would expose them to physical or psychological harm or would otherwise place them in an intolerable situation. Respondent failed to carry her burden of establishing either defense. Consequently, the Court grants the Petition and orders the children returned to the Dominican Republic. I. Legal Framework The Hague Convention was concluded on October 25, 1980. See T.I.A.S. No. 11670. It entered into force for the United States on July 1, 1988, see id., and it entered into force for the Dominican Republic on June 1, 2007, see Bureau of Consular Aff., U.S. Dep’t of State, U.S. Hague Convention Treaty Partners, https://travel.state.gov/content/travel/en/International-Parental-Child-Abduction/abductions/hague-abduction-country-list.html (last visited Oct. 17, 2022). To implement the Convention, Congress enacted the International Child Abduction Remedies Act (“ICARA”), Pub. L. No. 100-300, 102 Stat. 437 (1988) (codified as amended at 22 U.S.C. §§9001-9011). ICARA authorizes “[a]ny person seeking to initiate judicial proceedings under the Convention for the return of the child” to “commenc[e] a civil action by filing a petition for the relief sought.” 22 U.S.C. §9003(b). “The court in which an action is brought under subsection (b),” in turn, “shall decide the case in accordance with the Convention.” Id. §9003(d) Among other provisions, the Convention provides a mechanism “to secure the prompt return of children wrongfully removed to…any Contracting State.” Hague Convention art. 1(a). Two conditions must be met for “[t]he removal or the retention of a child…to be considered wrongful.” Id. art. 3. First, that removal most be “in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention.” Id. art. 3(a). Second, removal or retention is wrongful only if “at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” Id. art. 3(b). Children wrongfully removed or retained under the Convention must presumptively be returned: “Where a child has been wrongfully removed or retained in terms of Article 3…the judicial or administrative authority of the Contracting State where the child is…shall order the return of the child forthwith.” Id. art. 12. In addition to setting forth the conditions that must be met for a child’s return to be presumptively required, the Convention sets forth a number of circumstances that may overcome that presumption. Id. arts. 12, 13, 20. Respondent claims that two such exceptions apply in this case. If either applies, “the judicial or administrative authority of the requested State is not bound to order the return of the child.” Id. art. 13. First, return is not required if “the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention.” Id. art. 13(a). Second, return is not required if “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Id. art. 13(b).1 In addition to directing courts to resolve actions for the return of a child according to the substantive standards set forth in the Convention, ICARA specifies the standards of proof that parties must meet to prevail in such an action. A petitioner “in the case of an action for the return of a child” bears the burden of establishing “by a preponderance of the evidence…that the child has been wrongfully removed or retained within the meaning of the Convention.” 22 U.S.C. §9003(e)(1). In turn, “a respondent who opposes the return of the child has the burden of establishing” whether any exception exists that would permit the retention of a child who was wrongfully removed or retained, with the standard of proof depending on which exception is invoked. Id. §9003(e)(2). A respondent must produce “clear and convincing evidence that…the exception[] set forth in article 13b…of the Convention applies,” id. §9003(e)(2)(A) — that is, that the child’s return would create a grave risk of exposing the child to physical or psychological harm or of otherwise placing the child in an intolerable situation, see Hague Convention art. 13(b). But a respondent need show only “by a preponderance of the evidence that any other exception set forth in article…13 of the Convention applies,” 22 U.S.C. §9003(e)(2)(B), including the exception permitting retention if the person or entity whose rights of custody were violated by the child’s removal was not actually exercising those rights at the time of the removal, see Hague Convention art. 13(a). Thus, to establish his prima facie case in this action, Petitioner must prove that (1) M.G.E. and A.F.E. were “habitually resident in” the Dominican Republic and then were “removed to or retained in” the United States; (2) the children’s removal or retention was in breach of Petitioner’s custody rights under the law of the Dominican Republic; and (3) Petitioner “was exercising those rights at the time of the removal or retention.” Gitter v. Gitter, 396 F.3d 124, 130-31 (2d Cir. 2005). Respondent concedes the first two elements, and for reasons that follow, the third is plainly met. Once Petitioner has established those three elements, the burden shifts to Respondent. The children must be returned to the Dominican Republic unless Respondent establishes by a preponderance of the evidence that Petitioner failed to exercise his custody rights at the time of the removal or by clear and convincing evidence that a grave risk exists that returning the children would expose them to physical or psychological harm or would otherwise place them in an intolerable situation. See Blondin v. Dubois, 189 F.3d 240, 245-46 (2d Cir. 1999). Because Respondent has failed to carry her burden as to either exception, the Convention and ICARA require this Court to order the children’s return to the Dominican Republic. II. Findings of Fact “In an action tried on the facts without a jury,” the Court “find[s] the facts specially and state[s] its conclusions of law separately.” Fed. R. Civ. P. 52(a)(1). The Court therefore makes the following findings of fact. Additional facts not specifically found in this section may nonetheless be included in the Court’s conclusions of law infra at III. Cf. Flatiron Acquisition Vehicle, LLC v. CSE Mortgage LLC, 502 F. Supp. 3d 760, 769 (S.D.N.Y. 2020) (“For the avoidance of doubt, the Court has also found additional facts that are relevant to the analysis, which are not included in this section of the opinion, but are instead embedded in the discussion section.”). A. Witness Credibility At the bench trial, the Court heard testimony from Petitioner, see Tr. at 53:15-105:7, and Respondent, see id. at 106:4-146:24, 165:1-200:24.2 In addition, the Court heard testimony from Plaintiff’s expert witness, Francisco Alberto Martinez Pujols, who discussed Dominican family law, see id. at 12:22-52:24, and from Respondent’s two fact witnesses, Marcres Bulduan, see id. at 203:2-210:24, and Josue Lara, see id. at 214:13-220:21. “It is within the province of the district court as the trier of fact to decide whose testimony should be credited.” Krist v. Kolombos Rest. Inc., 688 F.3d 89, 95 (2d Cir. 2012) (citation omitted). Thus, the Court begins with its findings concerning the credibility of these trial witnesses. 1. Petitioner The Court finds that Petitioner’s testimony was credible. Although Petitioner testified remotely through a video display, the Court was able to observe him while he testified, and his demeanor at the time supports this finding of credibility. Petitioner answered the questions put to him directly, and he was not evasive. Furthermore, while he testified about certain events that took place some time ago, and thus he may not have remembered every detail, the Court perceived him as attempting to honestly recall those events to the best of his ability. Particularly significant to the Court’s resolution of the Petition is Petitioner’s testimony about his relationship with his children prior to their removal from the Dominican Republic. The Court especially finds Petitioner’s testimony on this subject to be credible and notes that it was powerfully corroborated the photographs received in evidence, see Exh. P17, some of which depicted M.G.E. and/or A.F.E. with Petitioner, and others of which depicted the children alone and were taken by Petitioner, Tr. at 60:11-68:17. The photographs corroborated Petitioner’s testimony that he exercised his visitation rights following his divorce from Respondent and was maintaining a relationship with the children until shortly before Respondent removed them from the Dominican Republic. See id. at 59:2-60:10. Finally, Petitioner provided a credible explanation of the dispute that occurred between him and Respondent in Puerta Plata, a city in the Dominican Republic, in 2017, id. at 95:1-103:9, which is discussed further infra at II.A.2 and III.B. His account of the marijuana use of the other adults present there and of his and Respondent’s reactions was plausible and realistic, as was his account of how he reacted once Respondent left with the elder of their two children. Consequently, the Court will generally credit Petitioner’s testimony. 2. Respondent The Court finds that Respondent’s testimony was largely credible as well. Respondent testified in person and the Court was able to observe her testimony from the witness stand. In general, her demeanor suggested that she was testifying truthfully, and at various points she spoke with obvious and understandable emotion. Nonetheless, at some points her testimony did ascribe a character to certain events, particularly the children’s diagnosis with COVID-19 in December 2020, that was in tension with documentary evidence submitted for the purpose of impeachment. On direct examination, Respondent testified that Petitioner “didn’t care that the kid had coronavirus” and “didn’t care about their safety.” Tr. at 142:10-13. As Respondent conceded on cross examination, however, Petitioner messaged her through WhatsApp to express his concerns about the children’s safety and to coordinate their medical care. See Exh. P2C; Tr. at 188:10-191:3. But while the Court finds that Respondent occasionally presented events in a light that reflected her desired spin on what transpired rather than a purely neutral perspective, her characterization of factual matters appeared largely credible. There is one prominent exception to the general accuracy of Respondent’s factual representations, however. In her Verified Answer to the Petition, which Respondent herself signed under penalty of perjury, see Dkt. 15-1, she alleged that following the 2017 incident in Puerta Plata, Petitioner “forced the Respondent to needlessly travel in the Dominican Republic, walking from Puerto Plata to Santo Domingo,” Dkt. 15 (“Answer”) 17. During the trial, however, Respondent admitted that she did not walk from Puerto Plata to Santo Domingo but instead traveled by taxi and by bus. Tr. at 125:11-126:10; 182:22-24. Subsequently, she explained this discrepancy as the result of a misunderstanding with her attorney, given her imperfect command of English. Id. at 182:25-183:2. And her attorneys agreed that the error arose due to difficulties arising from translating her communications into English, not because Respondent had in fact stated that Petitioner forced her to walk from Puerto Plata to Santo Domingo. Id. at 200:1-17. Because the Court accepts this explanation for the untrue allegation, it will not use the discrepancy between the Answer and Respondent’s testimony as a basis for doubting her credibility. 3. Non-Party Witnesses While Petitioner and Respondent both testified at considerable length about a number of different factual questions relevant to the disposition of the Petition, the remaining witnesses testified more briefly and concerning matters of limited scope. Mr. Martinez Pujols, Plaintiff’s expert, testified about Dominican family law, particularly the parental authority granted to noncustodial parents following a divorce. See generally Tr. at 12:22-52:24. Ms. Bulduan and Mr. Lara, two of Respondent’s friends, testified about their communications with Respondent and their observations of her and the children during the marriage. See generally id. at 203:2-210:24, 214:13-220:21. The Court finds all non-party witnesses to be credible. Furthermore, their testimony, whether about matters of fact or Dominican law, was by and large not disputed by the opposing party at trial, with one exception discussed infra at II.C. Thus, the Court will credit the testimony provided by the non-party witnesses. B. Undisputed Factual Background Much of the trial testimony, particularly testimony concerning the family history of Petitioner, Respondent, and the children, was not disputed by the opposing side. Because the Court generally found credible the testimony of all the witnesses who appeared at trial, the Court will generally credit such uncontradicted testimony in reaching its conclusions of law. Nonetheless, the Court will not explicitly enumerate, at this stage, every unopposed fact to which those witnesses testified; rather, most such facts will be cited, as relevant, when they support particular conclusions of law that the Court will draw. The Court will, however, briefly outline the history of the parties’ relationship and the actions that led to the present dispute. Petitioner, who was born in Haiti in 1968, is a citizen of the Dominican Republic and of Haiti, Tr. at 54:2-4, 9-10, while Respondent was born in the Dominican Republic in 1986, id. at 107:3-10. The two met in 2013, id. at 107:23-25, and were married in the Dominican Republic in April 2014, id. at 55:1-6. Following their marriage, they resided in Santo Domingo in the Dominican Republic. Id. at 56:12-14, 116:15-20. They have two children. Id. at 55:12-15. M.G.E was born in Manhattan in January 2016, Petition, Exh. C at 1, and A.F.E. was born in Manhattan in October 2017, id. at 3. Soon after each child was born in the United States, thereby securing U.S. citizenship, Tr. at 56:25-57:1, Respondent and the child returned to the Dominican Republic, id. at 56:17-19, 120:6-10. In April 2020, the parties separated, and Respondent and the children moved out of the family’s joint residence. Id. at 57:5-21. The parties subsequently were divorced by mutual consent in December 2020. Exh. P5. At some point around the end of July 2021, Respondent moved with the children from Santo Domingo to Santiago, the city in the Dominican Republic where her family resided. Tr. at 104:8-10; see also id. at 144:11. Then, on August 22, 2021, Respondent and the children traveled from the Dominican Republic to the United States. Id. at 165:5-11. They currently reside in New York City, id. at 107:11-15, where Respondent works as a teacher, id. at 175:2-9. Petitioner realized that Respondent and the children had left the Dominican Republic for the United States at some point in September 2021. Id. at 71:25-72:12. C. Disputed Matters of Fact While much of the factual evidence presented at trial was undisputed, the parties did disagree prominently about one factual matter. Respondent testified at trial that on one occasion, when she was pregnant with her younger child, A.F.E., Petitioner “took my hands and he started hitting me with my hands.” Tr. at 127:7-8. Respondent offered corroboration for this allegation through the testimony of Mr. Lara, to whom, she claimed, she sent a photo of her injuries shortly after the incident occurred. Id. at 127:14-16. Mr. Lara, in turn, testified that on an occasion in 2017 or 2018, Respondent sent him a photograph of injuries to her face and neck. Id. at 216:8-19. After sending him the picture, Mr. Lara further explained, Respondent told him during a phone call that Petitioner “was like in discussion with her, taking her own arm and beating her with her arms. It was like fighting. But, you know, it’s like trying to control her with her arms, but hitting her with her own arms.” Id. at 219:8-11. Petitioner adamantly denied that there was “an incident where [he] physically struck [Respondent] on her face repeatedly and she had injuries and bruises.” Id. at 89:1-2, 5. As noted, the Court generally found both Petitioner’s and Respondent’s testimony to be credible. And the general credibility of the two parties would make it difficult to resolve their contradictory testimony in order to find whether the alleged incident in fact occurred. To the extent that such a factual finding were necessary for the Court to decide the Petition, the corroboration provided by Mr. Lara’s testimony would weigh reasonably strongly in breaking the deadlock that might otherwise be produced from the parties’ own statements. Nonetheless, as will be explained infra at III.B, the Court need not find whether the incident described by Respondent did in fact occur, because even were Respondent’s testimony about it accepted, she still would not succeed in carrying her burden to establish the grave risk exception of Article 13(b). Consequently, for the purposes of the following analysis, the Court will assume the accuracy of Respondent’s trial testimony about the incident. To be clear, that assumption does not reflect a finding that Respondent’s testimony about the incident was truthful or that Petitioner’s testimony about it was not, or a finding that the event in fact occurred as Respondent described at trial. III. Conclusions of Law The Court first explains why Petitioner has proven that the children were wrongfully removed within the meaning of Article 3 of the Convention, then turns to why Respondent has not proven any defense that might permit the children, despite their wrongful removal, to be retained in the United States. A. Wrongful Removal A petitioner must prove three elements to prevail in an action under the Hague Convention for the return of a child: “(1) the child was habitually resident in one State and has been removed to or retained in a different State; (2) the removal or retention was in breach of the petitioner’s custody rights under the law of the State of habitual residence; and (3) the petitioner was exercising those rights at the time of the removal or retention.” Gitter, 396 F.3d at 130-31; see Hague Convention art. 3(a) (defining the removal or retention of a child as wrongful if it breached rights of custody “under the law of the State in which the child was habitually resident immediately before the removal or retention”). Of the three elements, Respondent concedes the first two. Tr. at 201:23-202:9. Despite that concession, the Court will briefly review the evidence presented at trial establishing those two elements. Respondent does deny that Petitioner has proven the third element — namely, that he was exercising his custody rights at the time Respondent removed the children from the Dominican Republic. Id. at 202:10-13. Nonetheless, based on specific evidence presented at trial, the Court concludes that this element, too, has been proven. Consequently, Petitioner has discharged his burden of proving that the children were wrongfully removed from the Dominican Republic. 1. Habitual Residence The country of a child’s habitual residence is “[t]he place where a child is at home, at the time of removal or retention.” Monasky v. Taglieri, 140 S. Ct. 719, 726 (2020). “[L]ocating a child’s home,” in turn, “is a fact-driven inquiry.” Id. at 727. Consequently, in determining the habitual residence of a child, “courts must be sensitive to the unique circumstances of the case and informed by common sense.” Id. (internal quotation marks omitted). Two factors have commonly been cited as particularly relevant to determining habitual residence: “the shared intent of those entitled to fix the child’s residence (usually the parents) at the latest time that their intent was shared,” and “whether the evidence unequivocally points to the conclusion that the child has acclimatized” to a particular location. Gitter, 396 F.3d at 134. In some more difficult cases, those factors may weigh in different directions — for example, if at the time of removal a child had become acclimatized to living in one country even though his parents did not intend for that country to become his permanent home. E.g., id. at 135-36 (instructing the district court to consider “whether the circumstances in which [the child] lived in Israel support a finding that his habitual residence changed from the United States to Israel, or whether his parents’ last shared intent that his habitual residence be in the United States should control”). At the same time, “[c]ommon sense suggests that some cases will be straightforward: Where a child has lived in one place with her family indefinitely, that place is likely to be her habitual residence.” Monasky, 140 S. Ct. at 727. Here, the question of the children’s habitual residence is straightforward. The children had not quite “lived in one place with [their] family indefinitely,” id., prior to their removal from the Dominican Republic, since each was born in New York and lived there for approximately the first one or two months of their lives before returning to the Dominican Republic. Tr. at 56:15-19, 120:4-10. But outside that period, the Dominican Republic has been the children’s home throughout their lives. They attended school in the Dominican Republic from 2018 (M.G.E.) and 2019 (A.F.E.) until they left the country in August 2021, and before beginning school they attended daycare in the Dominican Republic. Id. at 57:22-58:8. No evidence at trial indicated that the children ever lived outside the Dominican Republic until they traveled to the United States in 2021. And both Petitioner and Respondent testified that they resided in Santo Domingo throughout their marriage, including during the period after the children were born. Id. at 56:12-14, 116:18-20. Thus, the evidence at trial established that, aside from their births, M.G.E. and A.F.E. lived in the Dominican Republic until Respondent removed them to the United States in August 2021. Id. at 116:15-20. The testimony further revealed that, while married, Petitioner and Respondent both intended the Dominican Republic to be the children’s habitual residence. Respondent testified she traveled to the United States for the children’s births in order to secure the benefits of U.S. citizenship, but that she and Petitioner intended that she would return to the Dominican Republic after each child was born. Id. at 117:22-118:3. Thus, at that point the shared intention of the children’s parents was for the Dominican Republic to be their habitual residence. And since no evidence suggested that at any later point Petitioner and Respondent shared the intention for the children to live in the United States, “the shared intent of those entitled to fix the child’s residence (usually the parents) at the latest time that their intent was shared,” Gitter, 396 F.3d at 134, also weighs in favor of finding the Dominican Republic to be the children’s habitual residence as of the time of their removal. Consequently, as Respondent conceded at trial, Tr. at 202:5-9, Petitioner has discharged the first element of his burden of proof: M.G.E. and A.F.E. were habitually resident in the Dominican Republic prior to their removal. 2. Rights of Custody Turning to the second element, the Convention provides that the removal or retention of a child is wrongful if “it is in breach of rights of custody.” Hague Convention art. 3(a). “Rights of custody” are defined to “include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.” Id. art. 5(a). As the Supreme Court has held, even minimal parental rights to determine a child’s place of residence may qualify as “rights of custody” under the Convention. In particular, a parent’s bare ne exeat right — that is, a noncustodial parent’s right to prevent a child from being taken out of the country by the custodial parent — is a “right of custody” under the Convention, and thus removing a child from a country without the consent of a parent holding a ne exeat right is “in breach of rights of custody” within the meaning of Article 3 of the Convention. Abbott v. Abbott, 560 U.S. 1, 10 (2010) (“[T]he Court determines that Mr. Abbott’s ne exeat right is a right of custody under the Convention.”). Thus, Respondent’s removal of the children would have breached Petitioner’s rights of custody under the Convention so long as Dominican family law grants Petitioner even a ne exeat right. In order to determine the scope of Petitioner’s parental rights under Dominican law, the Court takes judicial notice of certain translated provisions of Dominican law, see Dkts. 29, 39, 56, and further relies on the testimony of Plaintiff’s expert witness, Mr. Martinez Pujols, a practitioner of Dominican family law. Dominican family law grants “[p]arental authority…equally to the father and mother.” Dkt. 29-1, Dominican Republic Law 136-03, art. 67 (noticed at Dkt. 39). That parental authority ends when a child reaches adulthood, marries, or dies, or when it is terminated by a court. Id. art. 72. The children are not adults, they have not married, and they have not died, nor has Petitioner’s parental authority been terminated by a court. Respondent was granted temporary guardianship of the children in the decree of divorce that dissolved their marriage. Exh. P5 at 2. But an award of temporary guardianship to one parent does not constitute an order terminating the other’s parental authority. Tr. at 30:6-12, 30:15. Thus, Petitioner retained parental authority over the children after his divorce from Respondent, including at the point when she removed them from the Dominican Republic to the United States. Under Dominican law, Petitioner’s parental authority grants him a ne exeat right to prevent the children from being taken from the country without his consent: “If one of the parents intends to leave the country with one of their sons or daughters, they may not do so without the written consent of the other [parent].” Dkt. 56, Dominican Republic Law 136-03, art. 204; see also Tr. at 30:16-31:4. Indeed, Respondent herself acknowledged to Petitioner when renewing the children’s passports that she would need his consent to take them out of the country. Exh. P2A. Because she removed the children from the Dominican Republic without Petitioner’s written consent, Respondent violated Petitioner’s ne exeat right under Dominican family law. And since a ne exeat right is a right of custody under the Convention, see Abbott, 560 U.S. at 10, the removal was “in breach of rights of custody” under Article 3 of the Convention, as Respondent concedes, Tr. at 202:5-9. 3. Exercise of Custodial Rights Finally, for the removal of a child to be wrongful under Article 3 of the Convention, the custody rights that were breached by the child’s removal must actually have been exercised at the time of removal, or would have been exercised but for the removal. Hague Convention art. 3(b). The subject matter underlying this third element overlaps with one of Respondent’s asserted defenses. Thus, the question of Petitioner’s exercise of his custodial rights at the time of the children’s removal imposes burdens of proof on both parties. Initially, in accordance with Article 3 of the Convention, removal is wrongful only if at the time of removal a petitioner actually was exercising the rights of custody that the removal breached. Hague Convention art. 3(b). Because this element is necessary to establish a child’s wrongful removal under the Convention, Petitioner bears the burden of proving it at trial by a preponderance of the evidence. See 28 U.S.C. §9003(e)(1)(A). Next, however, a respondent may avail herself of a defense that challenges the petitioner’s exercise of a custodial right. Article 13 of the Convention establishes that a child’s return is not required if “the person…which opposes its return establishes that: a) the person…having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention.” Hague Convention art. 13. Respondent has asserted such a defense here. And a respondent, not a petitioner, bears the burden of proving by a preponderance of the evidence that the exception under Article 13(a) applies. See 28 U.S.C. §9003(e)(2). The relationship between these two provisions — the third element of wrongful removal and the defense for failure to exercise custodial rights — is helpfully elucidated in the Explanatory Report to the Hague Convention. See Elisa Pérez-Vera, Explanatory Report, in III Acts and Documents of the Fourteenth Session 426,
