alleged that the child taiji r was wrongfully removed from her betrayal residence in mexico we have two issues today before the court first of all that the district court the child was born in two thousand and nine in mecklenburg north carolina where she reside with her mother until october of two thousand and twelve at that time mr sierra was excluded from the united states he had been arrested in mecklenburg north carolina for domestic assault on my client in fact at the time the child was born my client had not heard from mr sierre in some time  three months i think at least until she was notified that he was in jail in atlanta georgia charged with conspiracy to commit money laundering and possession of a nuclear weapon mr sierra was also in this country on lawfully just played yourself out of court on that he's also named on the birth certificate correct that's true judge but that only makes him the father if you complies with the other the other stipulations in the uniform par which is found at one sixty point two zero for the texas family code he would have to be married to the mother either before or after the birth of the child for that to make him the father the explains that's correct your honor one sixty the well i understand that at the time where is your client now she says lives in montgomery county texas your honor and where men come in county yes ma'am she and legal yes she's a written legal resident alien and the child reside  until september of last year when the when he was deported she allowed him to go with the father home since she referred to him as a phone there and a hearing she did your honor and i think the judicial to if that were the case on some ridge know this went to trial right it did your own well if you had some objection to parentage it seems to me you could have gone through the processes in the district court and gotten a d n a test the district has no jurisdiction to deny no it quote has no jurisdiction but at the same time this is not a serious issue frankly we considered it's a sense of central issue in the case judge i think it's a lie and frankly and you know your client is in deep trouble if she's lying to the court saying that this man is not the father you don't put the fellow's name on the birth certificate if he's not the father i don't know how the dame got on the birth certificate judge was certainly not present when the child was born but the point is that makes it even more obvious the mother was i don't know she says she gave the kid back to him several times she had several opportunities to to take the child back to texas with her and she availed herself of none of them she did take that opportunity judge and brought the child back from mexico and that's why this petition was filed by mr sierra well yeah and she i mean the circumstances are certainly disputed about what happened in july but she didn't tell him she was coming down for the birthday well she arrived there for the birthday party and saw the condition the child was in became the alarm about to take the child back after having not lived with there for three years suddenly and having had the opportunity in colombia about six or seven months earlier to take the child back and she did declined every time the child was sent to mexico to begin with john  because she was having problems with her speech and there was a program available in mexico to help the child with her speech and that was the reason she went back with mr sera to begin with but we still feel that the issue parentage here is suppose you should have a notified the authorities and said that he was a had kidnapped the girl and that may when she didn't do that this is just i mean obviously the hague convention pre supposes that it is a dispute between parents ok or people with custodial rights over a child no question about it but every single step of your lawsuit except for this claim that the man on the birth certificate is not the father every single step of you can basically concedes that your client was allowing the child to live with him that area and therefore the predicate for the h convention is essentially established i don't know that that's true judge i would be well it's either that or he's kidnapped or there's only two ways about it well i suppose that could be true judge but as i said the hague convention refers to custom your rights ar ising from alien not going to make new law about parentage in a case where your client testified on the stand you know had all these opportunities to take the little girl back to houston and never never once did it she finally did judge well she finally spirited away evidently but her testimony was the condition she found the child in required her to bring the child back and that's why she did it but your honor so with all due respect on september twenty ninth two thousand and sixteen when the right and you could have come to the fifth circuit for a stay it wouldn't have gone in this panel it would have gone to another panel so you know our reaction has nothing to do with that but that was true judge we could have done that but by t we would have been able to prepare that to the court the district court's order would have already been executed in the child back in mexico we didn't feel that would be you know exactly the only real issue is whether there's evidence was sufficient for the mexico permanently i do not agree that this is her vigil residence in fact all she did was comply with the recommendations of the department of homeland security and i've cited the course in our brief where if the one parent is traveling outside the country with a child many countries require a written travel is the last station from the parent who is not present this is done in family cases all the time to assuage the problem of child and then time goes by and she goes down there about one two years you know five years ago that's true judge but being separated from your toddler at this point of a life is just hard for a mother completely conflicting my client testified that the child was to return when she was four years old which would have been about a year after she went to mexico and mr sierra said there was no agreement as to the amount of time the child was to live there there was no meeting of the minds and no shared tent as a matter of law as far as the travel is authorization goes which the court relied on that's all it is it's a travel authorization when they travel from mexico to my client's native colombia she signed another with what  points describes it points to the fact that the parties intended that her residence would be mexico absent shared intent the court has to look at the tell me the facts the facts the child remained there for however long it was they travel to other is evidence in the record my client said hundreds and hundreds of dollars to support this child she certainly did not abandon the child and she wanted her back when she went to mexico she for and the record is this is in the record the dental records of that child his seven year old child her teeth  rotting out of her head she had seven cavities filled jihad head lice she was emaciated michael i brought her back here and as i told the district court my opening statement we did already this more as a rescue their removal and that's what it was i have to say that i've been a member of the bar of the southern texas for thirty years and to see that child taken her mother's arms with the close of her back by a federal marshal and summarily roof the courtroom was one of the heartbreaking things i've ever seen my client is devastated by this well i am no doubt but what happened in all the years preceding covered that the child was down there for the purposes of speech therapy i have come since when does mexico have better speech therapy than the us adult minor standing was or was not a program here available for the child she was three years old at the time but since her she had a chance to go to mexico and get this treatment that's why she was there b that's because they were she went down there and found out when they were both in colombia i mean the way your brief portrays and they were they were thinking they would get married and then something had a big fight and decided not to get married but she still s child back to mexico that's true judge there was talk of marriage to a pole why didn't she take the girl baby with her at that time that i don't know the judge been in hindsight certainly if i'd been counseling her at the time out and said bring iraq immediately well i mean you would think you know judge harmon is a mother to you and you with just whether you look at it from their perspective or rationally it just seems sort of strange because then six months later  she did want to as i said that's the condition she found her in like i said we thought this was a rescue not a removal i don't think yet insufficient again i would urge this court should have granted our motion to dismiss on for a moment comediennes not only was for most or you can probably tell that the court is always uncomfortable with these cases because of the family law implications and certainly we are not experts in family law thank you for this court i was going to be my first point but let me just if i could just to greg's for saying correct a couple things he said he said that the the child went back to mexico because she needed speech therapy does nothing in the record about that he talked about dental records and lights and my only tradition again there's nothing in the record about that he's said that but there's nothing in the record about which the child is so bitchy resume is not confined to parents although as someone pointed out of usually is that the parents you don't have to have custody that's why you have to have convention cases where you have to stop until there are some state court hearing on parentage but let's side arm on about that what you need to consider is exactly what is the maryland and it was not the other parent of the child take the child away from her voluntarily for two years to live in mexico or just that's not saying a lot of mothers and fathers i've never seen one  the questions by teleconference or video it was by video is a very elaborate and mr caswell my co counsel is very instrumental in setting that up and i'm very appreciative to him and so he can't come back to the united states one of the reasons this hearing took so long to actually come to fruition was the difficulties in setting this up because no one had ever done it before so he can't come back to  the habitual residence issue because the hague convention says that if you have rights of custody under the law of the child overwhelming white in the evidence in fact if judge harmon had ruled that the united states was a child's permanent residence in two thousand and fourteen i'd be standing here telling you that finding was clearly erroneous because the only evidence that child residence was the us was the mother's completely unsubstantiated statement that her permission to let the father the child in mexico was not meant to be permanent but every piece of evidence supports that and we've talked about this the mother son authorization allowing him to take the child and that's one way ticket the mother comes to mexico at the end of two thousand and twelve stays for i think the mom makes no effort to take the child back the mother visits in mexico june of two thousand and thirteen stays a few days the child but mother comes in july of two thousand and thirteen for the child's fourth birthday stays i think a month or six weeks again sighing conclusion then at the end of two thousand and thirteen they meet again in colombia there was some talk about getting married but they didn't and then the father brings the child back to months but only after the mother signs another travel authorization without which the following would not have been able to leave colombia with with the mother of the if the mother wanted the child only of outside of much help this was as good an opportunity she's ever going to get and she didn't tell you that the child goes back to mexico of the father put some red shoes the kid for school keep your medical records up to date with their pictures of the child's room with all the toys and  missed that when the mother brought the child back to texas you call it a kidnapping they call it a rescue remember she didn't need to travel all there is a sion to travel with the child from another i don't know if she we get back to this issue of rights of custody and i can't help thinking that while the hague convention doesn't expect lee discussed parity just think is judge jones observed it almost assumes parentage well that's something we can assume here i don't is that if quote paren it is an issue in many of these becomes an issue and i've seen another at least one other hague convention case in this court that involved divorce or cases i don't see how it could judge the state court has concurrent jurisdiction to hear these matters just as this court does just but typically one client one i mean almost exclusively it the the contests arise because one party i outside the united states but certainly that would be the basis for the action judge but again i think people rights of custom exist as a convention says these must arrive from a legal relationship and whether her that he's the child's father that doesn't necessarily make it so i practice a lot of family law and this is a bad idea i've said i'm not an expert in family law but your client did allow this little girl to live with mess for three or four years that's true judge and i think the cases say that the tale of the period of time the child spends in the other country is not necessarily determinant of those facts the district court relied principally on three things here the travel any confusion about why the child is leaving the country the district court relied on three factors primarily the child was in school in mexico when she was in school here also that they thought about buying a house there were no real estate deal was ever consummated and the travel awesome zation travel last mission is nothing more than that travel travel is both ways but my concern is if we're wrong here if we are wrong and that this guy is not the child's father what have we done we have condemned this child to a life time but he was having custody issues it's not really so she's an american and the sooner she turned sixteen she can put herself i mean i'm saying sixteen because she can run away from home she can put herself back on the bus and go read the right of right back to the us i think to the extent mr cicare has her under his thumb that's not very likely what do you mean by that down screaming for over three years we have video of that that that is correct against all that's true judge but i think the important fact is she did go down there and she did retrieve the child based on the condition she found her living in we would ask the court nine o'clock tomorrow morning