reversed as the district court has committed clear error by failing to weigh the evidence and concluding that this child was not unduly influenced by his father prior to making a determination of whether the child was mature enough to object to his return to his home state of venezuela in addition and similarly the district court years in determining the child was of the sufficient age in maturity under the hague convention to allow the district court to consider the child's preference to remain in the united states both of these errors are clear and are grounded in a failure to review the record these mistakes stem from a presupposition of the outcome based upon the district court's interview of the child and thereafter combined with an expert's opinion bought in paid for by the father to justify its determination hague convention the federal register regarding a child's preference is clear under article thirteen that the application of this exception is not mandatory it is discretion  and the reason why it's discretionary as written in the federal register is especially important because of the potential for brainwashing of a child by the alleged abductor in that circumstance were child's objection to being then thought in this not of the judge didn't wait or didn't conclude whether the grave exception of returning this child to the his way law would be jim make a decision on that issue so the only issue therefore before you is the should indicate that this child was unduly pressured by his father over a course of eighteen months where contact was limited in the record between his mother when the mother's testimony in this case was completely ignored when you read this record i ask why is the mother who was the primary custodial parent of this child why is her testimony not within this record as to what she believes to the maturity of the child and our point is is that because of the und influence the father put on this poor child or a period of time that that pressure that pressure exerted upon him which is clear in demonstrative in detail in the record you don't even get to whether he's mature or not because that exception requires him to be free from influence this is not the case with the father only mabel contact between him and the mother this is not a case where the child had three contact with his mother this isn't demonstrative campaign by this father as evidence in that record over substantial period of time to exert influence and autonomy over the fought over the child's decision and the time we got into the court room he had changed his mind a factor that was completely ill not weighed upon by the district court that this would often change anyone who changed his mind the the child the child originally where is that not where exactly that's on the mother in the mother's testimony within the record her testimony was that when he st went to have his visit with his father that he  was excited about going and he was excited about coming back and he goes of his father and for a two month period which is clear in the record this child was not afforded the opportunity to talk to his only primary custodial parent this poor kid had ever known for two must to me that is the essence of brainwashing that began upon this child this child was told about court conversations this child was was prepared now didn't s coaching in the record but was of state the words were substantially prepared prior to meeting the only evidence that supports not just upset sending this child home in terms of his maturity objection was testimony  and paid for not i'm neutral opinion the opinion of the court appointed the neutral the only party that spoke with the mother the father in the child found this child not to be mature enough to make the injection but we said that you don't even get there because the record is so filled with documentary evidence or testimony regarding the undue influence upon this trial it starts st with the father's initial taking which the court does not weigh on this child this trial was taken in front of venezuela by permission and then wrongfully retained i believe that this is the district court needed to weigh in because the context matters as to how this child ended up staying in the commonwealth beyond the time he was supposed to be returned and then there's the statements multiple statements multiple testimony in the record where the father said at one point that i could get into legal trouble and eventually go to jail this point which is the only major point that's commented on by the district court to do you completely is completely wrong she concluded that she was unpersuaded by the testimony and night making the statement and only one confronted with his deposition testimony right in the record the specific words he said to this child that he reluctantly admit he may have set so i don't on that record that's completely inconsistent finding that this daughter did not influence this child by making multiple statements to him in addition the mother testified that this ten year old child a trial where she had been the primary only custodial parent like venezuela testified that when she spoke to him after not speaking to him for a period of time they spoke in illegally i submit to this court what ten year old child speaks in legal ease who is not under pressure and influence of his father and then also in addition in shockingly to me that he and mom testify their child said that he spoke with the father's attorney during this action this is pressure pressure burst pipes what happened in this case when it did district court say with respect to the neutral experts fine they essentially just missed it st of all they concluded that or finding was that the child just major finding was that the child just one of this to be over but that's she testified to it all we're finding in a report both within evidence were that this child was not of a sufficient age and maturity to object to his return found that there was pressure upon him by both parties and found that he had been substantially prepared prior to his testimony in front of the district court so to ignore the neutral the one independent voice in the room who had an opportunity to speak to these parties incredible bought and paid for expert opinion that may have some validity but it certainly shouldn't have the same validity under any standard of an independent report when you combine a work with the testimony in this case by the mother and the other witnesses i just want to be clear in my own mind when you talk about the independent neutral right are you talking about the guardian ad litum yes or so the district court  the child was prepared for his meeting with her and not had obviously been told about her role in the role of the judge but had not been appropriately coached this finding is consistent with the child was not coached is inconsistent actually with the testimony she didn't use the word cups but i wonder what the word substantial preparation means which is found on page two hundred and ninety nine dollars which was also at the guardian  set and i think the fact that the court did not weigh any further on to what that finding meant is consistent with the judgment that is clearly or use why why wouldn't the word prepared simply be used in the context the church katzman quoted that the child understood what the purpose of the visit was because we're combining it with the fact that it's one data point about a dozen data points where pressure was exerted on this child so that you have to you can't the guardian ad litum as to pressure say that that could have been internal pressure on the part of the child to want to please the parent with whom he was living yeah exactly and i think that's that's part of our argument here is that over the period of time where this father curtailed contact which is not weighed in at all by the district court where the father did was discussing the litigation but the guardian laid him on we said what the guardian said it there what the cause of that is would be speculation wouldn't i mean i think what you're saying makes sense but it's not the only reasonable reading or is it i think and i think what we're arguing is the only reasonable reasoning and leg of the testimony that was provided by the mother the guardian ad litem by the father's testimony by the father's credibility i don't think what i'm we have to ignore the testimony of the child himself and the district court's evaluation of it no i don't believe you do i think actually that the child's own testimony is indicative of the pressure that it was faced on during the course of the one thousand seven hundred and eighteen months prior to going to trial where he changed his mind about returning to where he said things like i would be super sad all that and not be feeling like he's losing anything in the fact that he is in the so again a fine with the father that testimony through his own discussions with the judge combined with comments that the mother i think the child can be thoughtful certainly and i think that that certainly is a consideration but the question is whether he was free unabated from pressure that the father put on him over that period of time i think that's that's whitney that's where when you valuate that there's no question that there was undue influence put upon the child so before you get to see the child's viewpoints because there's  be free and unfettered from the undue influence that was put upon him and that's what's clear and demonstrative in the record both what the guardian ad litem and and and the expert for the father also said this child was under pressure and  i do influence i think that the st the st answer your question i think the st thing i would look at is the fact and i think that was not properly done in this case is the fact that there is the notion here that the hague convention requires returning to the status quo that there's a there's a preference here that this is a narrow and limited exception when it comes to undue influence and i think are making the case to us about why the facts support the conclusion that that occurred here in the sense of being isolated from the mother being led to identify with the father being exposed information that would heighten his identification with the father because of the harm that could come to the father etc and meeting with the attorney preparation all of that you say supports a finding that there was undue plans in my right though that even if we found that there was that influence being exerted that's game over and it doesn't matter how mature the child may seem or how cogent they may seem or how free they are from that influence in making their judgment i think it's it's game over i think that can the convention there's a case out of the rd circuit which talks about that cited in our brief yank changeless which which talks about that i think that because to enter in quitting because it's such a narrow exception because the remember this is a we're talking about a treaty that requires you know enforcement and we're talking about not turning this into a custody case which i would argue that the court really truly did and i think when you read this judgment you take a step situated is free of that undue influence because if you don't you are subjecting your it's not of your giving but i think it's just it's not it's not fair at that point because the child can't be free of independent thought at that point and i think that's why the well settled which is not part of this matter the well settled exception comes into play which is not a case of well filament exception are they so because this is the only objection the father could have and only affirmative defense he could raise eventually that the district court should have given controlling weight to certain pieces of evidence that she claims cut in her favor but there he'll is only actually challenging  findings why not whether the child was officially mature for his opinions to be taken into account and then to whether the child sincerely objected to return so the only question before you is not you know whether you would have waited the evidence differently or even whether you would have reached a different conclusion and the only question is whether the district court clearly errored it based on her own personal interview with the child and the other evidence that the child was in church sufficiently mature for the purposes of the convention and sincerely wished to return so are you  that we don't consider the question as to whether there was undue influence exerted on him no you are you you ken consider whether the court clearly  determining that the child of sincerely objected to return which is where i think that that can come in actually i think there are two places where andrew and florence could arguably come into the analysis relevant here i think that are what i hear her counsel to be challenging is that there was undue influence of service on the child and that can be a factor in whether or not the child's objection is sincere and so it's part of case determined that his desire to stay in the united states is not the this is a quote a desire to stay in the united states does not appear to be the result of a new influence or coaching yeah but the i guess what i'm wondering th because i think the question i was asking your opponent which is one way to think about this would be you could have a situation in which undue influence was exerted on the trial but the child nonetheless was able to make  sincere decision material in an alternative way of looking at the world as if there is a big influence it's impossible to credit that the child can make it and yet a rd possibility is wealth to fairly evaluate whether the child was sincerely making a decision then there was a lot of smoke in the air about potential and to imply that it would be important for the district court to specifically address not how the child handled it but the level of pressure that the child was subjected to and then make a finding either it was an undue influence for if it was the child with him overcome and i think the worry maybe here if there is one for me is that last possibility seems like there might be some value in assessing the sincerity of the child judgement in a case in which there is a lot of smoke about potential undue influence to have a clear finding by the district court as to whether that influence was on do apart from how the child responded to it or not and i guess would it be possible to read this record to have the district court made such a finding and if not is their case on the dresses whether district courts should be made to make such findings whether they should be made to make such findings etc so i practice i misunderstand your question fact ultimate judgment to disaggregate i'm not saying that his record did or didn't but i'm just saying there would be a logic to saying well for me to evaluate the district court's assessment of how free the child was to handle the  i need to know how much influence the district court really thought was bearing on the child once i knew that i could look at the record and say well district court just didn't see how much influence really was being exerted on the child or got of exactly right that is the level of  that the parents are in conflict and that the child has you know felt torn between them in the past but that he has you know in her factual findings she says that he has you know she struck by the positive things that she has yet to say about the mother  about his experience in venezuela he's incredibly measured he feels like he can talk with mother or whenever he wants to he has his own phone and they and then at the end of the day i think she says you know whether or not the parent the father is so accommodating the child feels as though d you know he is absolutely free to choose whatever he wants to do so i think her her while she doesn't come out and meek the clearest statement shortages and hardships as aware that people including some of his friends are leaving the country he told the court he would feel relieved to hear allowed to stay with his father in the united states and not have to worry about being sent back what is that how do where does that finding factor into the analysis well so i think that that goes to the fact that a couple ways but i think mainly it goes to the fact that the child's objection is rational others but he also notes that they had to boil water and it's easier to find food here and he is in commune occasion with children's best friends who have been forced to leave venezuela his father testify that he admits he sort of talks to him about the situation and they are his own safety but you know in a host sort of inappropriate way that you would talk to a child about his home and i think you know it but it goes to his level of maturity and his  return that he can think about it thoughtfully and that is your good way and that it it's it's rational that there are rational reasons for why he might be wanting to stay here and it's not his only rational and the judge also knows that he talked about how he had moved forward to hinds in five years and he felt really ready to be settled and he was very subtle here and you know other factors so i think that that goes to she's not making the decision that's not really quite it to anything that establishes that the district court failed to consider the mother's testimony as the district court decision and her questioning of the child which i i i encourage the court if they haven't already to read it and show it is that she did fashion do you feel pressured by enter either kerry communicating the parent and the child you know says very clearly you know i used to feel like i was torn in a lot of their actions i think the record shows that this child has unfortunately been pulled into  and he said you know i just really thought about it for a long time and i really didn't have to be one of the teams i can be on my own team and you know repeatedly said that you know warmly about both parents and he just wanted to stay here i don't  i just i mean i am happy to kind of go through a lot of them in detail but i don't see evidence that the judge disregarded the mother's testimony here one thing i will say is to the extent that you know this is a narrow exception of the  to that he you know remain united states to what extent can he you know two years from now seek a reconsideration of some sort let's say he and what you know the child told the judge in this case is that the father and child wanted to go back the father would send him back and that's been the father's position on record you know if that became a challenge out of the something for the family supports to handle if the child decided they wanted to return are you aware of any other course you know address the objective criteria issue intensive cases that should be judged by the fact finder in a case they keep basis that is what the convention contemplates and you know at as they note in the commentary there they tried really hard to find the minimum age at which the child with wishes would not be considered and they couldn't come up with one because they thought that it would be arbitrary and they decided to leave these cases to the discretion of the fact finder i think it would probably have practical matter be very challenging given the the disparate types of cases before the court and the different facts and the different circumstances of the children in these cases to come up with one facts that always must be considered in each case so i think that would be a practical challenge but you know on the merits of it and it was important here on the merits of his argument i think you know barak thank you your honor i would just start with the this case required by the district court a clear finding that the trial here was indeed free of the father's undue influence in the case or point you the time the gauge of the child when he was taken the time the lot in the mother's testimony which i believe is not in not ancillary it's think it's very relevant material which was addressed is the fact that the mother testified that the child had changed his mind that originally again he wanted to return to israel it was only after contact was completely cut off that two months later and over the time period with the father the opportunity to exert the influence upon his portage that he had  a change of mind as to whether to be sent back or not it was like that point he was objecting in fact the mother testified when asked it was her opinion where he wanted to live it changed obviously because that this is the mother obviously because the  respect one possibility is that what you're saying is the district or not withstanding accurately understanding the level of employment the child was subjected to clearly erred in concluding that he was free from it that the one possibility of what you're saying another version of what you're saying is the district court in finding that the child was free from the under the influence clearly erred in describing the level of influence the child was subjected to illustrate me as very different arguments and i'm having trouble figuring out what you want us to conclude as between both neither one and not the other yes my conclusion here is that the father unduly influenced the child period stopped that's what the evidence in this case that's what the evidence the mother ship does with the evidence the neutral guardian and i'm sure i don't know even  the fathers i'm sure i don't know if i'm not putting my question well but that answer doesn't to me answer my question ok ok so the district court found aware of the end of influence issue that the child made a free decision and i know you are saying the district court clearly erred in that respect and i'm trying to figure out where you are locating the source of her error was it in her description or finding as to the level of influence the father exerted or is it as to her finding with respect to the child's capacity to act free from even if she accurately identified the level of influence the child the father exerted wealth i think she didn't provide the dress the level  influence that this father had in the child and therefore she stopped there so she couldn't get to the point of whether this child was improperly influenced or unduly influenced by by the father never going that's the time to dress and i  think that the the was not a clear finding here that this child was free of the not doing things and i think she need to analyze that st and foremost and then i think to your point then she needed to address potentially because it's such and there are exception make i would just i would just stand up please i would say that a public policy argument i think is indicative of the failure here that if there is an objective set of criteria which can be taken into consideration on a case by case basis it should look at the age of the child the viewpoint of both parents the passage of time the taking the quality of time with the former custodial parents during that period of time independent neutral evidence the custodial orders and that concludes argument in this case attorney barrack and attorney bakley just connect from the hearing at this time