refer to the parties by their st names reserve reference this case involves the application of the hague convention on international child abduction specifically determination of the visual residence of the four children the subject of the suit as well as the application of an agent surety defense to the two oldest children with regard to the st issue we are in a somewhat unique situation given that while our appeal has been pending the supreme court issued them an ask the opinion which provided a new legal ginsburg discussed as that can lead to all sorts of issues about intent and so what we're dealing with now is just what did the to tell to the circumstances say him wait till what they say based on the finding fact the other findings of fact at the district court may so i believe yes and i think actually both sides are in agreement with that we don't believe that different facts would be introduced into evidence if the case were to be retried and so while the wrong legal test was applied we believe that all of the basic underlying evidence and facts were in fact before the court at trial so our request this court is to apply them and ask you test applied to tell you the circumstances based off  record and then make a determination about honor so a lot of the facts are actually undisputed in this case the intent of the parties is disputed but there's a great number of facts that are not specifically the fact that the parties moved from california to argentina in the main down there for two years county near where she's living right now it was somewhat unclear from the record as it's not included in the party's divorce decree whether they have that before or after they've moved down there but no point in time that anyone actually used that property as a residence their children not the baby right so it's four children the subject of this case there was a th child mother became pregnant due to a parent more that she gage with down in argentina  even though the date of birth was two thousand and nineteen i think that was two thousand and nine and it's a typo the two older children are the ones that are deemed to be able to make their own decision is that correct well the bible were not of the arguments bigger partner the two will reach over and were interviewed and some of the district court did apply the age of maturity exception to them i disagree don't agree particularly with the youngest child that she actually has sufficient age and maturity to objet she was only ten of the time of the interview there was a significant amount of evidence just from the transcript of the interview that she was quite intruder still had problems of bedwetting learning difficulties that there was a significant parallel between her situation and the we believe there was an error in that situation but that big back to the courts question the age of maturity exemption was only applied to the eldest two children it was not well the the ten year old had dyslexia as i understand it you saying that makes her incompetent of expressing her to a way she was well your honor so i do believe a learning disability is a factor based off of the president said in england it's not the only factor i think listening to say reading the actual transcript itself seeing the other testimony from an expert either an outline a more psychologist a lot of the case present where this is exception is invoked there's an expert who provides testimony by age maturity that did happen both parties made some comments on the record about determinations based off the last time a nation and under texas law texas court wouldn't be able to exercise jurisdiction over them because there's this foreign order and there's no agreement to set it aside or modified texas and so it's like to be stuck in the actually agrees that it's not possible for her to go to argentina the children had valid visas at the time they left i know she testified that she didn't have a valid visa at the time she left however i don't think there's enough evidence in the record to make  be a trial that he was only had a two year employment contract that's not accurate i mean that the two years have long since expired at the time when at trial he was still so my boy and he indicated that the record it was there was a two year span where he received certain heightened benefits as an incentive to move them down there and those expired but his employment ah so he's not moving some rd this isn't some new place that's not in the record that he's about to move somewhere else she  get permission from judge iran for that yes it's your nd the point you're making about the no documents in argentina and how a texas court can do anything about them i just don't remember that being particularly urged in your brave not could be wrong we've only got twenty two cases going in one case of this week but did you heard that in your brief yes your honor so in our initial brief that is brought up and then it's also addressed in the reply brief because custody of the children didn't well i don't even refer to a share just knowing how long it don't use believe with me didn't grant her custody of the children not exclusively or it was a shared custody arrangement both that possession both had parenting doesn't specify a primary parent or a studio parent versus a non story or help i understand it granted sarah primary custody of the children and the husband custody rights whenever he was not traveling i do believe  says he has custody rights when he's not traveling but he has a possession schedule with weekly possession and rights and duties he has run her is that correct i mean i just i don't believe that's what it alternate during the week that's correct there were tuesday and thursday periods of possession as well as we dems action and there's very clear language that they were supposed to attend a school and went to sarah's that they were attending and that some of the exchanges were to be at the parents houses or at the school itself and so that arrangement it's just not workable over any significant distance for anyone which we have argentina and it was entered just less than a year before she chose to leave her position was a trial that she always had this intention to leave but if if that was the case why would it be back they would have entered this arrangement in two thousand and eighteen that's completely unworkable over a long distance if it really was actually always with a plan to do why would they have incorporated language in the decree facilitating long distance possession or move back to the united states they certainly could have done it but they do it has to be entered into this agreement only workable down there as i have written we're really ill suited to be the ones to try to deal with these child custody issues and that in the time periods that it takes this is just a very difficult and cumbersome process that we're not well suited or as an appellate court we must do it and so i'm can you please just give us the four or five or how many there are so talented of the circumstances that cut in your favor so that if we were going to list them in an opinion we would know what they were yes your honor said the the biggest point is the existence of the former custody or in the implication that carries the length of time the parties were in argentina the attendance of school in argentina the terms of the custody arrangement involving continuing to attend school in argentina and then i would refer the court to the fact that sara maintained an active lease at the time she left in fact that is reviewed its warning that these still would have been in effect as of findings of fact under a clear error standard as this supreme court stated in one ascii the district court the fact finding court is the court to make this determination and the mixed question of law in fact for habitual residence the supreme court said it's barely makes question because it's mostly factual the st part of it is just which standard to use as standard the supreme court gave us is the totality standard the  nd question is really the bulk of it were the children at home in this place that the petitioner is claiming the district court so it's very clear whether or not the opinion in the nasty says that it's uniform historical reasoned approach your your your client's case does not depend on clear error does it it does not depend on theory error but i'm in the nasty phase what the supreme court was saying the way that i read it at least is that there have been courts that reviewed it in the oval but that's actually the question that the supreme court answered was with what err what standards to use on appeal to review these types of cases what it sucks about benefits of clear error and he talks about how it's it's the dissed court but he never actually comes out and holds that and so that's what's confusing about it and yet do you believe that we can follow larby and all of that analysis about the shared intent that the district court under went or do you believe that's been displaced i've been asking i don't think there's been entirely displaced even i'm an ascii the supreme court said that shared intent it doesn't turn on shared intent but that's still a fact to consider among the totality thing in our circuit in all of these cases since since larby for certain we have been really all about the shared intent and where we didn't find shared can we found children didn't have a habitual residence which is exactly the opposite of what monastics wants to have happen this judge that in larby this court did say it starts with the shared intent and it relies heavily on them but it also said that it is a fact intensive determination which when looking at this special at the far case which i think is the only case that's in a similar procedural instance that we have here where the district court did not use a totality standard used a similar shared intent standard and even in the district court in an ascii used a similar shared intent type standard the far court relied on ministerial gave deference to the district court d and to its findings i think here here under larby in that fact intensive determination that the district court did make affect in terms of determination it went through three pages of findings going for nearly twenty years of this family's life from when the parents st met in two thousand and one all the way up through the time of trial i but we don't want to but it makes the bunch of findings dealing with shared intent under law or be better are not pertin and seventy nine the parties met in two thousand and one they got married in texas they're both u s citizens they had children here in the united states that are all u s citizens none of them have dual citizenship anywhere they moved around the united states for father's jobs or education they had never lived outside of the united states together or with any of the children when they did talk about going down to argentina they the contract for father employment contract said that just as mr capello said it was giving them two years worth of housing allowance two years worth of educational allan's for the children it would even ship the family back to the united states upon terminations it also said that it would pay for the family to travel back to the united states for their vacations while they were down there for those st two years and then looking at while they were down in argentina a homely provision looking at the school while they're down in argentina the father testified it was an american school d taught by american teachers at the american grade levels in the american style and it was even set up so that they could spend their summers in the united states  looking at the decree which the the district court heard the evidence about the decree about getting divorced and they're also looking at the decreasing it doesn't require anyone to live in argentina or for the children to attend school in argentina i'm looking at page thirty three of the record in thirty four it goes through the the possession schedule the father shall return the children to the school they were attending the witness aries international christian academy it didn't require them to go there and looking at page thirty three dollars for trying to support provisions make specked lear because the father was supposed to pay for child support and as part of that would pay for tuition for school and it said d that at the time they were attending bike but it said d they could attend any other institution with similar characteristics so even in their decree they're not limited to only an argentinian school or a school in argentina somewhere it just made the father pay decree be taken into texas court to modify that you know given that one our parent is currently living in a different country it's not at hat what happens to the existing custody arrangements that have been adjudicated by that argentinean court if we were to determine that the children's residence is the jewel residence to texas so it is somewhat speculative because no modification has been filed but under the u c c j a the uniform child custody in forcemeat jurisdiction act texas could modify and this is all i think adequately briefed on both sides that texas could modify under certain conditions either if the argentinian court finds that it's no longer a convenient for him if either moves out of argentina under the u c c j a it's if the parties and the children all move outside of argentina right now because the mother and the children have it d would just be father if he's still there once he moves out then texas itself could make that finding that everyone's moved out what if he stays in argentina if he stays in argentina argentina could still find that it's an inconvenient for him and i also think there is another new case out of the texas supreme court discussing the u c c j u h's it isn't in the briefing that came out a few days after the at the least brief was filed in raif teeth in the i can provide that supplemental briefing if you if you like judge but in justice lerman concurring opinion she said the court didn't actually get to this question but looking at the u c c j a it's not a true subject matter jurisdiction statute and that's made clear because if if a trial court makes a u c c j a error it where the custody should it should happen where that trial should happen which is really what the convention is saying to where should it what's the best court to determine best interest of the children no also what do we do with with the situation that there is this custody determination and in our precedent that that does have some that does have some and it is more favorable to the other side yes but if the same time looking at the convention under article three it says that custody determinations are what give custody rights that is part of the  wrongful removal determination not necessarily for a bitch will residents determination i think saying that because there is a custody determination somewhere that makes it the habitual residence i think that's kind of reversing what the hague conventions are actually saying just because there is a custody determination doesn't mean that is where the ritual residence is now we have a case where we've determined to have bitch all residents to be did a different place than a custody determination not out of the th circuit but out of the th circuit the former case that i supplied last week and or twenty eight j later the it was mexico that determined her that have the decree and the arizona district court found that the mexico was not the habitual residence of the children in the th circuit giving deference to that determination affirmed on appeal are you relying on this determination that if this court determines that the habitual residence determination isn't correct then under the nd issue the two oldest children did display the age of maturity and did object to going back to argentina and  would agree with mr capello are not asking the court to just separate the children but the other children at the time were under the age of ten i believe that the nd circuit has found an eight year old to be sufficiently mature but in this sixteen age limit that's because the hague convention does not apply to children under sixteen right he and step out and so while the whole thing was going back and forth and back and forth yeah just out but none of these children have aged out credits clear there's not a clear age requirement it says when you're mature enough correct it is it is a fact intensive determination just like a bitch will residence and under this court's precedent  then interviewed to the two children in cameron reviewing all of that testimony and the sealed record that children were able to just report found that both of them were exceptionally calm and composed and that they were able to talk about their life down in argentina their life here in the united states why they wanted to stay in the united states the older d child talked about wanting to finish out her high school career in texas because moving around so much previously it's hard to adjust it's hard to stay on track and make those adjustments with those frequent moves she talked about attending college in the united states and the opportunities that she had and the younger children yes she did have dyslexia but i think that contrasts with the england case because the child in that case although she had a learning disability she was also scared and confused during the end camera interview here just report found that even the younger child was calm and composed and that she was able to articulate herself the district court interviewed her and she talked about her life down in argentina and her life in america and that she recognized that she did have these learning disabilities and th argentina she wasn't receiving help for them but she was receiving help in texas and that she understood she was overcoming those learning disabilities because of the help she was receiving in the district make clear it's not determining best interest because of where she can get help or not it was just using that as information to show that she was mature enough to understand what was going on and that she was receiving that help i want to play a part twenty two things st of all the  meeting scheme which i think is the same thing as giving the mother primary wasn't there some translation difficulty or member a footnote in the district court's opinion of the ten with translation between primer and actual or something along that line the translation difference was whether the decree actually use the phrase habitual residence or not not with primary and in so here though when you finish up so here in the decree it doesn't use the word primary and it doesn't talk about primary residence didn't talk about residence at all really but the the mother was receiving child support she was supposed to be received as the line which in the decree concerning the mother's custody belmont the here in america has there been some resolution of that there isn't a resolution on that we certainly don't want to split up the children if if the court determines that the habitual residence determination is incorrect but the age of maturity determination is correct under clear error in the in it's hard to say best interest of the children because that's not what you're deciding but as the as the father stated in his brief he would ask for d i see my time is up but it may finish this just what i was going to you know i think on this record yes this court can just like in many ascii and in far this court can determine that argentina was not the which will residence both both manisty and for those those just records did a similar shared intent type standard and on appeal the the th circuit in the supreme court both said that they effectively did a totality of the circumstances because they did this fact intensive determination which is the same standard i believe this court put out and want to be it's a fact intensive determination in the district court's findings on page four hundred and eighty dollars even say even quoted larby saying it is a fact intensive determination so looking at that this court i believe does have enough information in the record and his opponent has the there isn't any additional facts that need to be heard at this point and so just like court effectively did a totality of the circumstances standard by looking at all the evidence looking at nearly twenty years of this family's life moving around the united states consul what to with this going to india point is that outside the record and we shouldn't consider that at all for what is in the record father did admit he did top to the children about moving to india although he said it was factual findings correct that so father didn't meet it and he did talk about it at the trial and so it's not part of the factual findings but he did you must rely on the factual findings in the district  court i believe the factual findings are reviewed for clear error under my nasty and under frank fifty two a six but it's also i think to determine clear error this court has to review the record in central question in address that because the court has said it's ill suited him and about how do we win in looking at my maskey but if you really look at all of this court's prior opinions and most made in the child's country of the mitchell residence and so in this particular case obviously we've argued that's already been done we have in here different from the far case an agreed custody order and it just judge barksdale talks about parental responsibility the parties agreed to jointly assuming exercise obligations related to parental responsibility under provisions contained in effect to fix pretty one subsection b of the civil and commercial oh and obviously that is getting visitation mom arguably has the child go live with the mother except when he gets visitation as i think of it i would agree with you is to someone whose primary i would think of the person who has the more visitation let's say so  visitation scheme and so i think this case is easier than than most because in all the other ones i've been involved in in a most of the cases go to the argument  and either the other court argentina determines it no longer has a continuing exclusive jurisdiction to be other court determines that texas is the pork even one or three texas court basically determines nobody's in argentina well none of those things that happen i would argue for a clear line is to where hopefully we were headed under mn ascii we know where this custody adjudication was the mother had every right to protest for a move away from argentina to petition for a change instead she uses self help which is really in my mind a very bad idea for this convention we ought to have a consistent application where parents can rely on this there is no such thing as an ex pat exception in this convention there is no such thing saying you have to become a resident of the other country obviously mr capello pointed out some of the facts but eight key facts is this agreed to create which is really arguing in her case you ought to have an actual agreement in that the united states supreme court rejected that you have to have it but in this case we have it we haven't agreed order that obviously that was under i believe the prior test i don't know that for a fact but if you're saying that judge all right i'll take that as true and that's why i say it's a fact but when you look at the totality the circumstances i think that's a very strong fact obviously it's not looked at in isolation we're looking at the rest of the record but i think that that's a key fact that they agree to this custody order