right our final case for this morning is in fact still morning is martinez against  decided that the child to betrayal residence was a key factor in this case you know the case ask you this question this is obviously a case where the child's initial trips all say to mexico was not a wrongful removal from the united states or anything like that a mother had sole custody under illinois law because the parents were not married is it yours who under illinois law that the district court was not entitled to take mr kay hughes intent into account just reports looking for joint intent to change the habitual residence i'm trying to nail down whether it's your position that that's a legal error yes it is my position that that is a legal error the hague convention under article five makes a distinction between parents having rights of custody and parents having rights of access parents have rights of custody also have the right to change the child residence or decide that habitual residence is actually but the hague convention states because mr k he did not have rights of custody he did not have a right to decide and the score and its decision and redmond actually said that the right to change that our child to the troll residence the intention that matters is that the person or persons having the right to make that decision in this case that was miss martinez because she had sole custody under illinois law so the only way me they did have this side agreement about visitation rights and the like but under illinois law the only way to change her sole custody would have been to go to an illinois court that's correct or hon here have the right to petition and illinois parent of court some kind of custody proceedings and he failed to do so to at the time acknowledgement of paternity rights self is not enough no it is not and there's resolves credibility matters adversely to a client such as whether there was a conversation in the kitchen of his martinez's mother in which mr k q agreed to the move and we have to assume that none of that happened right right as that credibility decision we're not going to second guess yes your honor under illinois law the custody of parent does have the right to change the child's residence and move out of the state of illinois so but you  acquiescence position has your position changed at this point we haven't we have argued all along along that mr martinez have the right to change the child's residence and furthermore that mr k he did actually yes to change rightly so mr kay who does a lot of the investigation but he doesn't actually file anything formally he just keeps the child that's correct your honor so there's an issue about whether the child has become well settled since his wrongful let's assume is wrongful retention so what can you tell us about that we disagree that the child is now settled in illinois he scuse me examining extreme science and psychological stress he's being alienated from his mother he's in need of counseling that he's not receiving and he's also not having any contact with his maternal family that he lived with all up until the time that he moved and so we we argue that considering those factors which must be considered under the supreme court's decision abbott that the child is not sell and even if he is the court must consider th well settled exception is not a requirement and only opens up the decision of the court when determining return whether they can consider or they can consider the child's interests as well and so and interests of m violate her custody rights and lieu of actually engaging in the legal remedies that were available to him it's very necessary that this child is returned to his mother's care in mexico so the other point i think that influences to just record judge is the fact that the child even before that wrongful retention had spent significantly more of his life in illinois than he had in  what about that factor it's funny because in that opinion the district court actually pointed out that the length of time that the child has spent and a place should not be i think he said considered and the redmen decision it was said that it shouldn't be and to what extent are you making a policy argument based on the purpose of the convention which is to allocate the the venue if you will for deciding hague convention provides a remedy for that the goal is to discourage self help and ducking the child and taking them someplace else you know mr kay he took the child back to somewhere that he had previously lived and was settled and he shouldn't be incurs in doing that you know he should that type of behavior should be discouraged furthermore you know it's had that or mental fat effects on the child obviously it had better mental effects on my client and so we don't want these kind of things where it's a let's take the child back and forth until we can determine the hipaa general residence he should have pursued his legal remedies up front not only did mr casey have remedies under the ha convention he also had remedies under illinois law was very aware of those remedies and still chose to pursue neither and engage in self help he had even told the state department that he had entered a visitation agreement with the mother but then went around and did this anyway and said he had this plan before he had sent that e mail to the state department that's extremely troubling and policy strongly encourages discourage in this type of behavior  any change that the custody lies with the mother in this situation and the father in fact does not have real regardless of whether a parent is that has sole custody and and have to get permission to relocate outside with that with no custody order actually or on a reading that case she does need permission and i have submitted a separately a motion thought that was extreme but anyway wilful worry about that ok whether or not and if the court be pleasers the court to further brief this whether or not a parent had sole custody or is not the sixteen this is this is the old statute under the old statute b p used to cite it under the old statute right that's the thing the new statute is even stronger the statutory language scheme is not changed by signing the a proceeding pending there of course there's a huge interest on the part of the court not to have its processes undermined that your client didn't do that he just kept the child after deceiving the mother about whether he was going to be sent back to mexico judgeship if i may permit me an analogy you have a neighbor who's always borrowing your prized tools and then counsel would prefer that you  litigate in court for your neighbor to get the tools not a good analogy ok i think bradman is a red herring it is entirely different than the case in point here i will be happy to brief it for your honor if it's depending on that but a parent whether custodial or not not custodial has has a say in where the child what state and what country especially what country which the child could be raised in regardless of their custodial status in the law and i again i point out again i you know my i don't need more briefing you had a chance to brief but the statute that you're relying on is a statute that operates entirely in the context of a court proceeding the parent without custody doesn't have a right to determine the child's location unilaterally he has only the right to ask the court to make that decision and then to supervise whatever decision the court has made so i don't see how her decision to move the child down to mexico even and i accept the district court's findings that this was not something he knew about but i don't see where that violates any part of illinois law the illinois marriage and family marriage act has a provision which is applicable now to not which has been applicable at that time also made applicable requires for removal for indicates that it does and there's language in there saying if mom interprets this that she can just take the child without petitioning the court or getting permission then it's a complete abomination of what the ledger slate of intent was yes there is around money for the father to go to court to seek an injunction preventing her from removing her coming back but that there's no custody order here she just says my operation of law the custodial parent before the custodial parent to seek permission from the court to remove before they can remove a child even within illinois for a certain distance regardless when the child was here for and so you would like us to adopt a rule that just says retain children don't use the convention procedures don't use the procedures reward the parent who disregards the convention i know i'm not saying you know what i like i don't want the hague convention to reward with the mother did which was snooker my client into signing an agreement the only agreement it wasn't snookered to the child lived in mexico for an entire year he could have gone to court in illinois at any time after it becomes clear that the child is down in mexico i don't understand at all why he was just able from doing that he's in contact with the state department he's talking to all sorts of people he has all sorts of grand it has much more over but also i mean so fine you know but this he's not snookered he knows that they're there he knows that the child doesn't come back it's very clear to him as of the time the school year starts he didn't want to bring him back during the school year well it is just the other would have gone to court though and gotten these things addressed in some regular fashion i understand your he did then go to court and mother went to court and acquiesced to the cook county circuit court's jurisdiction it's being litigated here the purpose of the hague convention the sole purpose the main purpose is supposed to be if the child's it's supposed to be litigated where the child's who bitch will residence was the state of western australia i mean it just depends mother is decided both parties are litigating in cook county she's not doing it without objection i mean i actually know she initiated the ruling to keep it of course i but that's not without objection another and we also have to get a calamity nation argument she waited a year she waited fourteen months before bringing any proceedings in in illinois in illinois or the hague convention because she thought she was she had brought proceedings in mexico where she w anything further to smack your honor represent our understanding of r g p couldn't be more spot on it's absolutely correct that the mother is not required to seek legal court before moving out of state with the child  distinguishable from the fisher case because they were pending proceedings in the fisher case there must be some kind of standing court order or pending action in the parent which court's an order for the mother to seek leave otherwise she does have the right to remove the child from the state of illinois counsel also mentioned that she moved to a foreign country as to say that was somehow worse than moving to another state and that's absolutely not true the uniform child important act considers a foreign country the same as it would consider another stay and so again miss martinez had the right to move the child to mexico counts also made a number of purposes to the marriage act which doesn't apply because there is a parentage act  there are specific because provisions of the marriage act that the parent is actually recognizes apply but none of those apply and this proceeding ok so so with that we ask that this