corben and lisbeth price in oklahoma your honor as it were here today on a an appeal of the hague abduction proceeding we are asking the panel to reverse the district court errors a lot of the st arab law that we believe should be reversed your honour's is the district courts concluding that as a matter of law and if it or a newborn child as we have in the the polk case could not let me let me jump in right there i'm not sure it's fair to characterize the district court as ruling that an infant cannot have  a bitch won't residents i think that if you fairly read the district court's opinion it says i've got some trouble wrapping my head around that but even if a newborn can or must be assigned a place it didn't do that so i'd like you to deal with the district court's actual analysis of habitual place of residence assuming that yes the district court made some straight comments about the but even if they could it would not be brazil because that district court actually i don't know had its own bright line presence test is what how i read that it couldn't possibly be present in that the children had never physically been present in brazil and we we argued premed ascii but certainly since the opinion articulated by justice ginsberg human ascii and actually some case law emanated recently that physical presence is not a test for her visual residence for a newborn or otherwise it may be one of the factors in the totality of the circumstances standard but it certainly isn't wrongful retention case at the moment of birth the judge the justice of the just report level seem to focus on things that happened after the wrongful retention things that happened subsequent to the birth of the twins in oklahoma but as you know your honor in a wrongful retention case we don't look we don't look forward from that the alleged date of retention we can only look back and looking back it's actually symbolic looking back and in this case we would be asking to look back you know symbolically at the moment of birth so clearly i believe from the opinion if not code as a matter of law that infants cannot have a vigil residents can't concluded that there must be a physical presence test apply and if they fail the physical presence test they cannot be held to have a  that i mean i don't see any authority that you have to have a hearing you have to have the right to make it recent taishan which occurred here well we did sir make we did make our presentation we filed the petition which was a sworn petition containing approximately four hundred pieces of evidence the response to the petition was i'm sworn in contains no evidence whatsoever so i the district court sumed for purposes of decision that all of the allegations in your petition were true correct the district court in the order says that's what he did but in fact that's not what he did because he actually did make some findings of fact without taking the evidence for instance and judge about i'll get back to your question about where it is in the order just a moment  for instance the court made findings that the party for a strafe there since there's no evidence attached to that petition that the parties were strange well isn't the lawsuit just in itself and the  she was refusing to return to brazil and refusing to bring the twins back pretty good evidence for their strange well the question would be when did that occur go and that's why we played it as a wrongful retention at birth there's nothing in this record at all that was in front of judge wire it that would support that this party these parties were straight in fact quite the contrary the evidence was that they were communicating entire time she remained wearing her wedding ring she continues participating in the renovations of the marital home in brazil she's referring to mister pope as her husband there was nothing in this particular record before the court if you call it a record it was not actually proffered as evidence but there is nothing in this record that would support that she was not going to return those children to raise them in brazil and that's the critical moment in time and that's why we we played it the way we did it there's nothing up until the moment of birth that would have led mister pope to any other conclusion that this woman was returning with those children to raise them as they had planned or the evidence is that she purchased a round trip ticket she represented to mister polk that she would be gone three dollars to four dollars weeks she represented that she was attending a conference in boston relating to her dental practice she represented she was saying her mother in oklahoma and attending a bachelor at party on the west coast and would be returning in approximately three to four weeks and again had a round trip ticket to do that they had lunch l a day she departed for the united states at their favorite restaurant said their question traced she had a small suitcase and all she left and that is all in the record and judge if i might ask you to look to page six of the district the the ruling as i'm sure my colleagues have i read it as kind of an alter their presentation but there's several several different lines of reasoning that got the gist where where he came out right but the case law and the nasty completely undermine the the bright line presence test right sort of report might be wrong but we've got that nd alternative reading which is putting aside the more unequivocal statements didn't the court consider do do contradict mister pope's petition and his position in this case again there was no evidence that this this relationship was a strange thing and the critical issue in this particular case sign of something wrong with the relationship the answer to that question might be yes but the convention doesn't permit the court to make such inferences the convention is based on rigid constructs which this case is classic convention case the convention has meant to to restore back to the court from looking to a person's evolving nature which can rupture unilaterally  evidence that the relationship was not good that she didn't feel bad by any commitments made when she left brazil you relating to the relationship would would not be dispositive when missler be unequivocal he communicated to mister hope that she did not intend to return the children to brazil for the purpose of raising them the issue of whether perhaps she was unhappy in the marriage or became disenchanted with something along the way or where whether she chose to birth the children in oklahoma as opposed to brazil is is ring true now with the evidence but the evidence in the petition is that at the st moment she communicated anything of this nature to mister polk was at the moment of birth shortly after the moment of birth when he traveled to oklahoma and visited her in the hospital and they had he you know ask her when is she coming home and she said i'm not coming home and that's the that's the moment in time that the wrongful retention occurred it didn't occur before that  just to be clear in response to just horses question the violation the wrongful retention was not when she told her husband i'm not coming back home it was instead that they were born go ahead may please the court my name is matt gile and i represent warren one day in this matter chip to briefly pick up where the court just left off on this issue of when the wrong poor attention was alleged to have begun with all respect to mister that that's the st time i've heard that it was some time after the moment bert and i certainly don't have the record memorized but my recollection of the record the petition and the response deal was that the wrong forward engine began after the moment circumstances brodeur's i do believe that it is much broader than that your honor in fact i think the court did look at all of the circumstances in this case and i understand the my opposition's point is that you can only look back and not forward but i think the court looked at all the facts in this case and that's why the district court did not permit clear error when it determined that based upon the allegations made by mister hope that he could not meet his burden to prove that children who were that she was not going to return with the children the record does not reflect that it's my recollection that based on the presentation of my opposing counsel it sounds like the allegation is sometime that day however the record also reflects that the party that had a conversation back in september in which he alleged that my client had become angry with him shouted at me and said that he could no longer call her why  the fact that she said you can consider me your wife brilliance is not this puzzle even if we accept as true the agreement that this split represented that they would the children will be raised in brazil  but it probably doesn't matter but it might in a future case so that articulation of it might better do you believe that the wrongful retention was the moment the children were born or the moment that she told i'm not sure your honor i think in this case it would be the moment they were born because the evidence was clear that she had made that decision long before the children wanted to do you think the role of a wrongful retention is measured by when the the party in position of the children subjectively makes a decision to return not when the party in retention discloses that to the other side a year there's very little time difference but just in terms of precedent if it could be very significant future cases so i just want to know which of those two times you believe is the critical point of wro return or when there is some other event that happened so i'm just looking for your guidance more for a future president than anything else as to when that a moment of wrong for attention that i don't take more of your time just state and we'll worry about rush mail but just state the conclusion when what moment do you believe the wrong rejection occurred or these that we should consider is a matter of law to be the question of when the wrong weather was wrong back there that you say could not be before the children were in fact more i think that presents a difficult proposition based on the context of the invention applying to children i don't i i just trying to thank you you said the record shows a conversation in september yes or not is that in the is that in her complaint it is not i don't case so it was it was submitted by by the plaintiff that's correct your honor it was attached yes but it's plain to see if there was some unfairness and the judge accepting that is true if the plaintiff was accepting that fact but that was actually in the chair of she submitted it was your honor it was it was reflected in the brazilian lawsuit it was six party because she was not involved and that's correct she would not serve with that intel after that one but was it appropriate for us to consider that that was based upon but the supreme court in monastic held that that had been to a residence determination does not and upon the existence of an agreement in fact the court has to look at it to tell you the circumstances which i believe that the court did look at the facts and circumstances that the children were warning united states to united states citizens that they had never spent any time in brazil and that there was an alleged agreement when the children were nineteen to twenty weeks in  that is the allegation around yes ok and so i think i absolutely agree that the agreement as alleged would be relevant where up where i disagree with my opposition is the weight that that agreement record also shows that my client left brazil four months before the children were born and that the parties never saw each other from july th until november th returned back to her home in oklahoma which is where the parties match where they both attended undergraduate graduate school and that's where my client works in practice the record also reflects that's the only place she was licensed to work  surgeon and i think it's important to look at the starting point in this case and that we look at the case law of provisional residence finding in the absence of some level of physical presence is an exceedingly rare picked it back the case that was england and the they had an unusual agreement in which the parents agreed the mother would travel to the united states in order to distil on children united states citizenship and they actually followed through with that agreement older child with respect to the nd child of the mother in that case decided to stay in the united states overstayed her tourist resort and about a month after the child was born the relationship between the parents deteriorate encourage people to move to if they have a disagreement with their spouse move somewhere else and have children there and if and say i'm i've now decided th where the children were conceived i understand the court's point and would agree that in some cases that that might be true i don't believe that in this case because of the ties that both parties had to the united states to destry or any ability to work and our previous home then the case with defense and in that case the result as well so you believe we can look to the reverend answers that question about whether due process would be denied as law that there's nothing in the convention or in that due process clause of the th amendment that would require a hearing and evidentiary hearing in every case the court has to balance the due process rights of the parties against the requirement that it act expeditiously in resolving these spirits and in this case mister pope has not wanted to any additional evidence that he should