what really is considered the principal case on the analysis of the key two words in this very important treaty a bitch will residence and it was this court in two thousand and one that laid the groundwork for a modern interpretation of those terms now what has happened over the years is that this case the more this case has been attacked both internationally and within the united states and but that is when the narrow view of the most is case is taken one has to read morse's several times to get it is a complicated analysis but what the then chief judge did was explain that first one looks at whether parents had a shared plan a shared intent to relocate children from one nation to another but in certain circumstances and we say in our briefs in this case there are other analysis  whole notion of habitual residence is founded in common sense and the ordinary interpretation of thaws holmes so when we consider what happened in this case juxtapose it against the prime directive of this treaty but let me interrupt i think i have a sense of a lot of things that happened in this case but let me ask you a question that puzzles me yes just look as far as the daughter is responsibility a little lower to do that we say yes on page eleven as you say judge block i believe that line sixteen of page eleven in the transcript in the extract is where we say say that there is discussion that both children were no settled in canada and receiving the canadian national child benefit so she's  your client argue or did you argue that notwithstanding the at indication of parental intent she was never the less a climatized yeah i saw some general discussion the climate is asian but not an argument to that effect and here same page fifty three afterward by way of example page fifty three talks about the child tax benefit there's there's testimony from mr razumov too that the child was going to school in arizona the proposed findings of fact and conclusions of law because the lower court rightly expedited this matter and the court gave us two hours each and we were in a rocket docket situation to have this case h issue for you because when you have to say to the district court we're trying to make two points one point is that there was joint intent to stay in canada and our second point is that she is climatized to canada when we're talking about the daughter and if you legion in our verified petition over three pages it is laid out the legal basis for a climate is starting paragraph twenty six of the verified petition and going all the way your time hundred forty two to forty two starting that paragraph twenty six the mother's canadian immigration application was granted in twenty sixteen jointly planned for years to relocate that you that the judge had to do that well we make factual a verminous in the verified petition starting as they see it page two forty two paragraph twenty nine and it runs right through to paragraph forty one those are the factual predicate for in a climatized patient case under the second approach of chief judge kozinski in maurice's it lays out the settled easily into the family home participates in school the whole family lives in british columbia the attend church in canada they receive medical care in canada they're fully involved and immersed in day to day family life and cultural life in canada and have been for nearly all of their respective lives that is classic a claim it's been well the daughter wasn't there for most of her life well it seems there for about a third of her life when the when the wee girl went to canada she was about four and she stayed there for sixteen months and remember judge friedman no one was going back to ga ga had been abandoned completely have any case that says we need to look at states within a country that i thought that 's really about which country it is a boat which country but when you talk about abandonment one has to look at the status quo ante where we are the mother and the daughter living there were living in georgia and then they waited by american standards a very short time they waited about five years for the mother to get her permanent residence card to relocate to canada and then they relocated to canada you thomas move in odd and i have a couple the woman's cultural background in ghana and disregarded that completely as if it was not a factor it seems to me that perhaps that should have been part of the totality of factual circumstances that should have been considered wondering whether or not these cultural norms should be a factor that should be considered in these types of cases i haven't found any case will on it one way or the other the district court did not say anything in a city considered that the think there was ever them but what one looks to in these cases is the matrix set out in the treaty and the treaty says does the father in this case have rights of custody under canadian law and one is directed not to look at gannon law or or iris law to determine the number she gave reasons why she came to canada and why she cooperated in the passport situation and all this type of stuff those are factual matters that i think ought to be considered by the court is there any case  one way or the other that addresses the issue of whether cultural norms should be a factor in the in the considerations not within the context of the hague because there isn't a  country that has become a state's party but i agree with your honor if there was a situation where for example showreel law was being considered that would be relevant because of the different one value legal  neighbor seems to go a long way towards her explaining why she came to canada in the dynamics between her and the relationship just seems to be there such a central fact the for consideration well it was considered i mean there lot on i understand you're saying that there should be more but ultimately one has to look at the facts on the ground and the facts where the plan was clearly wait for the permanent residence card to come through for canada and then thought that was not relevant consideration in my correct about that yes on two grounds first of all there was a joint expert appointed dr style who said there was no grave risk that's on the facts and second judge  proposed undertakings in his prima facie case to address any concerns that ultimately the judge had one longer to look but if the law is should the risk of harm to the child be a factor to be considered by reason of the spousal abuse that's a very difficult question because if you take a broad view of that then you are essentially neutralizing this treaty this treaty is here because we trust our state that i'm concerned about whether spousal abuse is ever a factor in considering whether the child's is at risk of harm it may well be under particular factual record that the answer to that would be no but is that not the law that the court is consider that to be the law you know that the court found that there was no grave risk of harm to these children because but they did not really address the issue of whether or not the spousal abuse should be a factor really the classic case and this will in versus lynn where the first circuit case where there was some we know of one incident from the father to the mother but there was no situation here where we have finders point of view they could find that there is no grave risk of heart to trial but i think there's an underlying legal issue unless i have this wrong that the court should consider that once he makes a finding of spousal abuse or seems to support the fact that is  plaintiff petitioner advance undertakings so the court is satisfied that canada and we're talking about canada here can deal with this case when everyone goes back remember exhibit fourteen that only if there was a finding of risk of harm as i understand the hague convention i deal with a lot of these things back and broken by the way yes is that if they find that there is a risk of harm then the court has to consider what the candidate would have means of u watching it on dealing with that issue i understand that but what i'm puzzled by is there seems to be a circuit split on the underlying issue of whether or not spousal abuse triggers an inquiry as to whether or not the child can be adversely affected emotionally  psychologically and i think there's a tension between the first supreme and the eighth circuit and i think the supreme court has something about that also just look i agree with there is a split on that there's a split on habitual residence there's a split in our sister states and sister circuits and basically every key point in this treaty currently here it seems that the wife has said she would not go back to canada no matter what as i understand the record so does that in her testimony but when we do have to point zero point we appeared for the show cause hearing mr powers and i implored the lower court to appoint counsel for her and if that caused some brief to liesl be it because it was from the other side diving right in on the question of a climate to zation and i'd like to try to dispel maybe some confusion and start from the backend which is  climate is ation alone supplant evidence other evidence can it carry the day and i think and i know rather when you read moses it's the conclusion of moses where you get the answer and the answer is that you cannot simply ask whether the children had in some sense quote become settled in in the new country and i from using a climate is asian as the sole factor to consider this summer it is slow on the way in the other direction they say that parents intent isn't the only factor and that in certain cases where the intent is doubtful you is ation may change the calculus it's your honor it may change the calculus if you take it into consideration with all the surrounding circumstances so i wasn't it wasn't requested that it do so there may have been a climate as asian facts that were developed in the record but there was no instruction to the district court to use the climate is ation alone in making it analysis and it's our position that you don't need to read reach a common position when you have sufficient evidence regarding shared intent and here the district court found good evidence regarding shared intent if it found that because miss baffle had been subjected to abuse over the course of a decade repeatedly by mr asimov that when she went to canada and september two thousand sixteen which she had done multiple times before in an effort to get her son and returned the united states without abandoning the united states as her bitch residence that when she went there in september two thousand and sixteen she went there with reservations at best for mr mr asimov's case so even if we assume that that was not clearly erroneous and that there was no shared intent to move both children to canada if we read our cases the saying a climate would be no different with respect to the daughter are you saying it would be a harmless error is it mainly thought it was an error that the district court didn't address the climate is asian directly your argument is that it would be harmless here that's correct your honor  essentially trapped in a foreign jurisdiction for ten months due to abuse and unable to return earlier that would not result in a climate is ation and i will get that footnote to there the parent and child were sort of trapped as i recall the footnote right in that the same situation applies here first of all the mother and the daughter have zero ways had the same will residence they go together and to correct a council wasn't four years old it was five years so the first five of her six years at the time that the return to the united states occurred the daughter had lived in the united states the first five of her six years she had lived out of the presence of her father for the entirety of her life the daughter has always lived with the mother not my understanding your honor from from everything i've heard from my client the answer would be no however she hasn't been faced with having to ever be separated from her daughter so that was that the parent being abused that it harms the child but if the parent wasn't there to be abused it does seem like it affects that inquiry that factor would be neutralized but we are also relying on two others and one is that there is harm  there is a likelihood a risk of harm that occurs from the from the father abusing the mother and that's dealt with very well in the me case brief and i refer the poor to  circuit about that issue no your honor i think that we're we're on the on the cusp here with respect to considering the abuse of a spouse and given it more weight is that correct yeah i think from from reading the district court's opinion i came away with and i think this court would come away with the clear indication that the district court felt constrained in that when it only finds evidence of abuse against the spouse that that simply as a matter of law doesn't cut it and that he cannot find a grave risk with respect to the children but when you look at the the wealth of information that's in the his brief that suggest just the opposite i think that it should have been given more weight and more consideration and there was also there was the expert read the report that could believe we're talking about a ten year old boy who's been unsettled so i think that the import of the stall report from our perspective is one he he found this your position is that you like the son to be returned to the mother i guess right that's correct carol and just focus me on the reasons why you think that the law supports that in this case right  so it's our position that the law requires that there the settled intent to abandon an old settled or shared intent it's used interchangeably i think in the case of it settled or shared intent by the last place there was a shared intent for the son to have additional residence was in the united states and that he was taken by the sap sion to canada and he was kept there through manipulation and dominance and the exercise his physical abuse against the mother and that's what frustrated her attempts to bring her son back earlier and so you made those arguments in this record and it seems the district court disagreed and made a finding that there wasn't  and sorry that the mutual intent for the sun was to go to canada and sent didn't agree with these arguments in terms of the credibility of them so would you we review that under a clearly erroneous standard you do and what we challenged two primary factual findings underlying that ultimate finding of nova biju a residence that the district court made in those two underlying factual findings were clearly erroneous one is that the district court found that the mother miss baffle agreed way back in two thousand and ten that the son would live in canada and the other which relates to i think a point that judge block was exploring earlier the other of finding was that the mother made no objection until the occurrence of these proceedings to the son living in canada and that is just simply not true while the mother did not go to legal authorities here or in canada she went to what she had been taught in ghana to go to che white well well i guess that's right he didn't give them way so he had knowledge him and he accepted them but in the end he disregarded them in making a factual finding that she did not raise an objection prior to the occurrence of these proceedings she did she went to the authorities that she was supposed to go to pursuant to her custom let me ask you this other any cases of all that just the issue will look to what extent cultural the district court should consider the cultural aspects of a person's life it's that it's states that all of the circumstances of any particular case are to be considered this is a one seventy three one sixty eight if there's any dubai a t about the shared intense you look to the issue of a climate a solution and why because if we don't look to a climate is ition we would reach absurd results you could hove but that's why our treaty which is incredibly successful starts by saying the interests of children under this treaty are paramount it's a vote the interests of these children