time this case has come before this court is a difficult one involving systemic domestic violence and the safety of a young child hangs in the balance at bottom its appeal comes down to whether money and an italian court order provide sufficient guarantees to protect a child and his mother from a serial abuser whose own expert testified to his island tendencies uncontrollable temper and an inability to appreciate the consequences of his actions to his child as the court well knows the domestic violence is about power and one spouse using that power to exercise physical and psychological control over the other my client miscall on is a young mother a u s citizen who escaped her violent life in italy at the hands of the a pal really is just not a she came to her home country with her then two year old son who's a dual citizen of italy in the us and then this child back to italy where his mother barely speaks the language and has unlimited resources and support will only reinforce the notion that and wealthy powerful man can continue to exert physical and psychological control over his abused wife so long as he says he'll abide by court orders and has the financial means to put some money on the table there's no dispute in this case that returning to the lease but it's not just that he says that he would comply with the court orders right the district  gave limited cooperation to a social services investigation back in two thousand and seventeen but there after he continued to abuse my client is a clean and psychologically and so you know he has a history and the entire course of conduct in this case by him reeks of violating the law the physical abuse and psychological abuse is all in violation of the law so i would submit there is no history of compliance with any residence to determine custody wouldn't it be pretty remarkable for us to rule on the basis that an order by the time in court is not going to be effective so i think to answer that question honors no i mean st of all i think safety the safety of the child trumps comedy and we're not asking this court to make a decision or determination about the competency or the ability of the italian court to effectuate its order the  issue here and the issue that the court below got wrong was whether that order would have any impact on the abuse or he or the petitioner the only way that a protective order works is if it serves to deter the conduct that it's meant to prohibit and in this case the evidence at trial that was the basis of the grave risk finding and the evidence that the petitioners own expert games was that he would not be deterred by by such an order he was found to be violent to be impulsive to he did not appreciate the consequences of his  and i think that what to record a trial showed and what the petitioners expert testified to is there's no there's no factual basis to trust it will be complied with you know as the as the court found he doesn't that you have a difficult difficult argument so let me make a couple points your honor may st of all i think the purpose of the hague convention is also to protect the welfare and the safety of children i think that can't be lost in the in the presumption of return your honor started your question by well if he breaches the protective order can my client just run into court in italy and you know have the court take care of that well i don't mean to be morose your honor but what if he kills her if threatened to kill her he has told her brother that if she comes back to italy she will leave in a pine box if we wait for him to violate the protective order it's too late and so while i agree that the courts in the cases that we cited like davies and simcox  order had not been put in place yet the courts in those cases operated under the assumption that a protective order would be in place and so i think the distinction between the fact that a protective orders are already in place here but hadn't yet been put in place in those other cases is a distinction without a difference because the courts in those cases assumed there would be one and so i submit your honor that it's to do if we're waiting for him to actually violate the protective order we've waited too long and the record at trial was very clear that there is not he is not a reliable actor who we can trust will abide by the protective order what your honor says perfect sense that a rational person would say well i'm not going to do something because are the consequences of his own expert testified that he doesn't appreciate the consequences that he's impulsive and he acts on a whim and has an incredibly violent temper and so while you know rational world your honor what you're saying makes sense it doesn't apply here i mean this is a petition or and and i you know i appreciate that we've submitted a lot of paper over the last two appeals but this isn't just a petition or who is incredibly violent i mean the the the the record this case  italy and the nd was to direct the parties to apply for a protective order in italy the district court did both of those things most importantly they directed the parties to apply for a protective order in italy which the party harm that the child should not be returned it gives it discretion to either let the child remain in the united states or even in the presence of a grave risk finding return the child to back to the to allow the child to remain with the abducting parent and quote even if the responded were to establish one of the affirmative defense of the language of the treaty specifically says that the district court  defenses that is sort of how the miller to measure is provision developed in the case law and the nd circuit has mandated that even in the presence of grave risk findings the court is bound to examine the  of undertaking possible to allow the child to return to the country but a residence in order to achieve the goals of the hague convention which is a prompt return for the child to be subjected to custody proceedings in that complied with all the orders already in place has acted appropriately on all the supervised visitation there's been no complaints on him improper behavior on part of the father during the past two years of litigation in this case and so the discour factual findings on this issue are very clear the district court was not concerned with the father complying with the orders of protection at all the various orders issued by the town court which is distinct distinguishable to the other cases such as davies where the district court found that there was a grave risk and found explicitly that the father in that case would likely not abide by the by any protective orders or any undertakings and therefore found that no undertakings were sufficient a st off i think you know we could all speculate as to what may or may not happen in italy but i think the record is clear and i think that this court's factual findings on this are clear that this court did not believe that there was a real risk that mr sata would violate these orders and the not only is there not a real risk of that happening but the ramifications of that would be severe as one of the judges that previously stated  to basically eliminate any possibility that he would have a continuing relationship with his son which all the experts in this case the factual finding support that the father and the son had a very loving relationship a very strong loving relationship on all those supervised that vision for him to take that risk would be completely illogical and certainly not supported by the record already in place so there is going to going to be oversight in italy this is not based upon as so many prior cases have been on promises made by the left behind parent by the by the by the abuser as these are not promises that the to support simply has to just trust will be complied these are court orders that the father will have to comply with or be found in violation and suffer serious consequences  certainly one can imagine again reciting the fact that i did before that a loving father would not take any risk to remove himself from his child's life by violating orders in the middle of a sure but the social services i mean the records for the social services rip record ended with the parties centrally making up and saying that they were in a better place and were in a loving relationship so social services did their job the social services ended and the district court said the main issue in this case was when the parties were together it was a volatile relationship and although the discord found that most of the abuse happened from the father to the mother this to court cannot say that the mother was not physically or was not abusive towards the father because she was and so the volatility of this relationship is what poses a problem to the child the fact is when the mother in the child go back to italy the parties will not be together they will not be in physical always that theoretical potential but i mean i think what we have to what i'm relying on is the fact that the just court did not give that weight and then that did not find that risk to be credible some point i think the district court's discretion and analyzing what the risks are and what measures are sufficient to protect the child absent a clear error and absent respondent or the mother's  honor this is not a theoretical potential we're talking about the risks here were conclusively proven and and down by the court in the st trial and the subsequent ruling ordering the child back is just inherently irreconcilable with the findings that the trial court made about mr saad is temper his violence his inability to understand the consequences of his actions and his i mean it's the same judge that made those findings but also who also concluded seeing all of that evidence that the elite of measures were sufficient and that he was going to comply so are you saying that it was just schizophrenia what's would that he would do certain things or not do certain things were sufficient and this court overturned that decision and remanded it and so when she got the case back the nd time she didn't take any new evidence there was nothing about his behavior in that would give anyone any confidence that his behavior would be modified and that the protective order would have any deterrent effect and so i don't believe you know and we  in the united states i mean i ranted at mr scott it was on his desk behavior in the very limited time he was in the united states participating in these proceedings and you know doing a bare minimum of visitation with the child back in italy where she has she has a language deficiency she has he has the entire infrastructure of friends and wealth and ability to deal with the court system and she has a complete disadvantage there and so i think the fact that he was able to control himself for the minimum amount of time that he was in the united states does not give a scare you into what will happen in the stressful situation to the ongoing custody n the i think we should step back and and think about what this case would stand for if the district court's decision is upheld you have a wife a mother and a child who fled to the united  states moved into a domestic violence shelter proved in a court of law by clear and convincing evidence that she was repeatedly and viciously abused and that her child was a grave risk of harm and all that has to happen for the her to be sent home and for the child to be sent back in spite of agreeing to protective order and paying some money the grave risk exception will be will be gone if that's all that has to happen for a victim of domestic violence to prove greater risk for her or her child to be sent back ok parties were directed to to request from the italian courts as i said we are not here to ask this court to pass judgment on the ability of the italian courts and the competency of the italian courts the basis of our appeal and of our position below is about the character of the petitioner we are not asking this court to make a finding that the italian court is or is not capable of enforcing its own orders the the the  issue here is whether or not the petitioner has the character to comply with that order no matter what the court does and we think here that the evidence thank you i think we have the arguments thank you