                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-2040



SANDOR KATONA,

                                            Petitioner - Appellant,

          versus


MAGDOLNA MARIANN KOVACS,

                                             Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle, Chief
District Judge. (CA-04-83-5-2BO)


Submitted:   May 31, 2005                 Decided:   August 31, 2005


Before WILKINSON, NIEMEYER, and WILLIAMS, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Stephen John Cullen, MILES & STOCKBRIDGE, PC, Towson, Maryland, for
Petitioner. Magdolna Mariann Kovacs, Appellee Pro Se.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

             Sandor Katona appeals from the judgment of the district

court denying his petition for return of children pursuant to the

Hague Convention on the Civil Aspects of International Child

Abduction (“the Convention”), Oct. 25, 1980, T.A.A.S. No. 11670,

1343 U.N.T.S. 89, reprinted in 51 Fed. Reg. 10494 (Mar. 26, 1986),

and its implementing legislation, the International Child Abduction

Remedies Act, 42 U.S.C.A. §§ 11601-11611 (West 1995 & Supp. 2005).

Because     the    record   before    this   court       fails   to   adequately

demonstrate       whether   Katona   established     a   wrongful     removal   or

whether his former wife, Magdolna Kovacs, has an adequate defense

to the petition, we vacate the judgment and remand for further

proceedings.

             A petitioner who claims a child has been wrongfully

removed may bring a petition for an order of return in any federal

district court or state court.         42 U.S.C. § 11603(a), (b) (2000).

In reviewing such a petition under the Convention, the court’s

inquiry is limited only to the merits of the abduction claim; the

merits of the underlying custody dispute are not considered.

Miller v. Miller, 240 F.3d 392, 398 (4th Cir. 2001).                  This court

reviews the district court’s findings of fact for clear error and

legal conclusions, whether domestic, foreign, or international, de

novo.     Id. at 399.




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            To prevail on a petition for return of a child in a child

abduction case under the Convention, a petitioner must establish by

a preponderance of the evidence that: (1) the child was “habitually

resident” in the country from which he or she was taken at the time

of   the   removal;   (2)   the   removal   was   in   violation   of   the

petitioner’s custody rights under the law of the country where the

child was “habitually resident;” and (3) the petitioner had been

exercising those rights at the time of removal.        Id. at 398 (citing

Hague Convention, art. 3).        Once a petitioner establishes these

criteria, the child must be returned unless the respondent can show

by clear and convincing evidence that: (1) returning the child

would expose him to grave risk of physical or psychological harm or

place him in an intolerable situation; (2) return of the child

would be barred by fundamental American principles concerning the

protection of human rights and fundamental freedoms; (3) the action

was not commenced within a year of the abduction and the child is

now well-settled in the new location; or (4) the petitioner was not

exercising custody rights at the time of the removal or had agreed

to the removal.   Id. at 398-99 (citing Hague Convention, arts. 12,

13a, 13b, 20).

            It is undisputed that the parties’ minor children were

habitual residents of Hungary.        Documentation presented to the

district court by Kovacs demonstrated that Katona was entitled to

visitation with the children on a regular basis.             Kovacs also


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conceded that Katona was exercising his right of visitation at the

time of the removal. However, the Convention distinguishes custody

from rights of access or visitation.           Article 5 of the Convention

defines rights of custody 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.”            In contrast, “‘rights

of access’ . . . include the right to take a child for a limited

period    of   time   to   a   place   other   than   the   child’s   habitual

residence.”      While the remedy for violating rights of custody

requires the child’s return to the country of habitual residence,

the remedies for violating rights of access are less drastic, such

as “ordering that the custodial parent who removed the child from

the child’s habitual residence reimburse the other parent for

expenses incurred in exercising his or her rights of access.”

Whallon v. Lynn, 230 F.3d 450, 455 n.3 (1st Cir. 2000) (citing

Hague Convention, art. 26).        The record before us is unclear with

regard to whether Katona has a right of custody or a right of

access.    Accordingly, we vacate the judgment of the district court

and remand for further proceedings to determine the nature of

Katona’s custodial rights in the context of the Convention.

     Should the district court determine Katona to have rights of

custody, the record should be further developed with regard to

whether Kovacs can prevail on a defense that returning the children

would expose them to grave risk of physical or psychological harm


                                       - 4 -
or place them in an intolerable situation.               The court should not

rely on testimony that is clearly part of the underlying custody

dispute and not properly considered in the context of Katona’s

petition.      See Miller, 240 F.3d at 398.

            Should the court determine from the evidence that Katona

has only a right of access, it should craft a remedy within the

context of the Convention to ensure Katona can exercise that right.

See Whallow, 230 F.3d at 455 n.3.

            Finally, we have found nothing to support the district

court’s application of the doctrine of equitable estoppel to the

Convention. See, e.g., Holder v. Holder, 305 F.3d 854, 871-72 (9th

Cir. 2002) (rejecting equitable estoppel defense).              While a number

of    courts     have   extended   the   one-year       limitation    period   in

situations where the abducting parent succeeded in concealing the

location    of    the   child   beyond   the   one-year    limit,    see,   e.g.,

Bocquet v. Ouzid, 225 F. Supp. 2d 1337, 1348-49 (S.D. Fla. 2002)

(extending limitations period), we have found no cases that reduce

the time frame in which a parent must act under the Convention.

Indeed, to do so appears to directly conflict with the intent of

the   Convention’s      drafters   who   adopted    a    one-year    limitation.

Accordingly, the district court shall not apply equitable estoppel

on remand.




                                     - 5 -
          We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.



                                             VACATED AND REMANDED




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