year old daughter in reaching its decision to deny his petition district court fall into a pretty standard trap that many courts fall into which is to look at it as a custody determination as opposed to the venue determination which is hard by the hague convention as a result the court made two fundamental errors first it found contrary to this court's precedent and it's on factual findings that m the preferences of the nine year old child even though there wasn't sufficient evidence of her maturity or that she really had the required particularized objection let me ask you about the question you know you've got to you've got a structure here the record doesn't say and i wasn't there but reading the transcript make you bad for your surgeries but that's that's fine but reading the transcript it appears that the questions where the magistrate sound because in a couple of instances within the transcript counsel suggest that maybe the court should ask a question here or there what concerned me about as i never saw the most would actually ask do you object to be withdrawing to mexico and i was wondering but but nonetheless  felt that he needed to ask you know if you look at his question in his question is are you happy here or are you happy there and tell me about your father and with respect to the magistrate does actually are the wrong questions the questions he should have been asking are what is your objection of returning to mexico if you could return to mexico in the custody of your mother would you have an objection to that and then actually asking her to make some comparisons and contrasting to life in mexico versus life here instead he went as i started with he went directly at the sort of custody determination who should the child live with and who really is the best parent and that is not a decision that the hague convention gives to the united states courts under that i have some difficulty with the notion that the word objection has to can look at the total colloquy there and make the legal judgment as to whether or not there was an objection in the sense that the hague convention calls far which means you've got  separate that out and at least distinguish that it's going to be independent of the underlying judgements about who ought to be the better to have custody i will agree with you your honor that there is not a magic language acquirement and perhaps with a nine year old you don't ask do you object because that may be a concept that's a little bit above a nine year old by the same token if she's not mature enough to understand it would you give that much weight to it but i think the court has to ask questions that tease out the objection as i say comparing and contrasting life in the united states mexico making these sort of rational determination of my life here versus my life back home and trying to make sure that it's a distinction between a choice between the young  person between parents whom they want to resign or between places where they want to live the choice under the hague convention is places not parents because once you get into deciding who they want to live with know and that's what happened here i'm just trying to get the principle i think if it does not rise to a grave risk and her mission which you didn't hear the principle is it's got to be a place because under the convention those issues of i don't like my father i don't want to live with my father i'm scared of my father those are custody determinations and the conventional cars that american courts trust that a court in the home country here mexico will take that those facts into consideration and and make the appropriate determination of with them a child well it is our discussion in vasconcellos helpful in your mind to this because there i thought the court our court in an unpublished decision was saying just as you said there doesn't have to be the magical word objection but what there has to be is some particular ization by the child of one place or another so in this case if you've got maturity shown by the kid being able to say i like math fractions so are really just looking at objection and then the magistrate firsthand and i think the guardian ad i'm light on was there too right that's c everybody is there and this magistrate then says that's particularized where you prefer to be i prefer to be in texas i'm happier here i like it better under vasconcellos that looks like it's a credibility call that we wouldn't overturn to a certain extent at least but is there anything suggesting immaturity as to this child if they're talking about math and fractions is there any suggestion of undue influence or psychological not there's none of that that i see in this record to me it's whether to child objected or not that's just how i well no i i would i would disagree with you there's a question too on whether she objection and whether or not that's there's sufficient maturity but there is a difference in a nine year old not thirteen year old the courts have tended to say for thirteen fourteen fifteen we're really not going to require much in the way of proof of maturity and we're going to allow these sort of this is what i want and we're going to trust that a thirteen year old knows what he wants unless there is as an angle in the england some reasons but where we have younger children courts have tended not to do that and they have tended to want more on the maturity and i guess that interest me what's your best circuit case that says it's these two are interactive that the younger then the more objection there has to be what's your authority for that proposition that it's going with my view of this i'm happy to be dislodged if the tougher question is is what does the hague convention mean by objection and did did our panel which explored it as particular preference is that not right is affinity insufficient and there's got to be something more demonstrative let me give you one case and then i'll turn your best and i circuit case from the third circuit yang  and in that case the court discussed that the ten year old had ordinary ten year old concepts as opposed to something that would demonstrate that that child had more than ordinary maturity now to turn it into your question what and we don't have a horse in these consuelos we don't have the full record but what we do have is that the court found that demonstrate an understanding of the proceedings and her right to state an opinion which really isn't just isn't in the record here second it did it he did go to that child went to at least as found in the description of the facts both at the district court level and with this court at this court that he had some very particular ised this i'm happy here i'm happy there is not that level of particularized objection it might not be but we have to find clear in her in the magistrate who's the one sitting in this room talking to the child with lawyers present and a guardian on them so what's the relief we remained back and they've got to ask more specific questions now i think if you look at england which involved a thirteen year old child as well as and that thirteen year old child had the same sort of i prefer the united states and her somewhat reasonable in the issue is the child was not just confused but had mental disabilities and the child had a d h day which is not looked about it looked at it and again england tended to conflate them as well and what england is if you look at this child and this child has a ph d and had an unsettled home life which may have made her less mature than it said what it also said she did not have particularized objections what she had and the same as we have here are questions she had she had a general preference proper age and maturity and has decided he does not want to return and then to quit the clear and convincing evidence and so that what struck me about that particular formulation and was the side of not to return was meeting that object standard what sealed what the court still apparel appellant was referring to were to a farm of offenses that are provided under section thirteen day of the convention one affirmative evidence that the child is sufficiently so mature and has a particular ised objection and in this case there is not sufficient evidence to support either of those problems and you want to be sure child is a has decided he does not want to return appears that it had to be a demonstration that clear and convincing evidence but what was required to be can so convincingly demonstrated was that the child did not want to return and that the saying but as england pointed out it's has an objection to return and is sufficiently mature for those child that child abuse to be determine if it is in fact a separate problem which they know their own yes it's a tough case and my concern you can see questions are as to what level of deference we owe to the first hand observer the child on justice affirmative defense other than england are you aware of any circuit case that has reversed a lower court's maturity of the child objection i am here on behalf of the child i was appointed by the magistrate court as the attorney ad litum for the child and the court has with laser focus nailed exactly the issue that is really dispositive of this case where you can maybe weren't quite laser enough like it seems we have a pretty weak argument on the first question about whether the magistrate judge properly concluded what should have been concluded this case was about was about a mistress who was essentially in a relationship with an adulterer that being the petitioner the child was a pawn in this relationship and  the contact that the petitioner tried to allege demonstrated exercise of custody rights and the court at the magistrate level focused on the eighteen months preceding the removal of the child relocated about three hundred miles away with the mother because the petitioner had threatened to kill the mother on numerous occasions now this should be of great importance to this court because in that eighteen month period the father made no meaningful effort to maintain contact with the child he instead made meaningful efforts to exhibit control over the mother the child's testimony was clear that during that time and i just want for record purposes to illustrate that distance we're talking about a distance of between here and shreveport that's how far away this mother fled to be away from this man and the abuse the child made it clear during the hearing and i know that this is not an issue of custody determination however i think intent of the parties has to play into the magistrate's determination of whether custodial rights were being genuinely exercised i would submit to the court that this was a sham there are no photographs of this child with the family of the petitioner the petitioner kept the child and the mistress a secret from his family from his spouse never introduced the child into his core family only showed up on a monthly basis simply to exude control over the mistress and to continue his relations with the mistress if this was a cohesive family relationship where he was exercising parental rights and control then there certainly would not have been a five hour gap between the parties as far as i see are agree with the basic principle that though there are relevant to the ultimate question of wh fifty nine off thirty nine ninety nine it is a ninth circuit case but it very well lays out the settled standards for evaluating the child's wishes and it also lays out a very specific case with respect to the removal this case says that unless removal is imminent now there is the correct that the family does not have a legal status here but nothing in the record established that imminent will move all was to occur and this case stands for the proposition that if there is an imminent with mobile then that factor should not be relevant not relevant to which speak to the convention should be relevant to the decision to return the child to the to the to the original jurisdiction of mexico in other words what the petitioner cited in their brief as a factor in this case in the child's ability to decide whether or to object to return to mexico was this looming question of the status of the mother and child however the score plainly said that that should not be a factor unless there is an imminent and we don't have that in this record at what the court's permission i'd like to address some of the issues that the court raised is that going to drive i can't find authority to that point but i would say this you're absolutely right your honor that is what the hague and its intent is to protect is to protect people who flee for risk for danger to the child and there is nothing in this record to suggest that this mother and child can't acquire lawful status in this country they entered legally they entered on a tourist visa yes they overstayed there's nothing in the record to suggest that down the road after this court renders its opinion that the child the mother cannot acquire meaningful legal status she's in a relationship with a man who as i understand it is a citizen act we had moved you to address what looked like a bigger hurdle which was whether or not the facts here validated a finding of abandonment and in spite of how on severely charged the facts are it seems undisputed that the that there was no risk to the child from the father as the court found and that the father had paid for all the schooling so what's your case to put has to get to put to bed a little bit this first issue that would say that you've got abandonment even if the father is paying for all schooling i think the record isn't clear that he paid for all schooling i think the a petition or even acknowledged in his own brief if i'm not mistaken that the schooling was paid for partially paid for and that when the child relocated to five hours away those payments became less less you have any case that supports abandonment on the theory that you've described no i don't your honor i would suggest simply suggest this i think that sealed the case out of the circuit lays out the standard very well that the father has to exercise those custodial rights over the child at the time or prior to the removal in this case we have an ample record that at the eighteen months preceding the removal the child was not under any sort of meaningful exercise of parental rights by the father he was five hours away he made no effort in any mexican court to establish paternity he made no effort to establish meaningful visits he never had the child overnight he never requested that the child come to his home and stay with his family to come that we look to for the one who it is and that is where i think petitioner has some rights by both parents where i think petitioner has gone astray in their argument is that they have made this essentially a legal determination as far as standard of proof and burden this is a strictly factual determination and the court is very very well noted that it is it is only under clear error what this court must determine in order to reverse the magistrate's finding is is there no plausibility whatsoever that the child was abandoned if this court can find no plausibility that them because the question of whether he did or did not do so i would submit that he did not exercise meaningful parental rights or one of the law in mexico contemplate ya it's difficult for me to i know that there was an offer in the again the for the father the petitioners case fail to meet that standard because what he essentially was doing was using the child as a means to exercise control over the mistress was not genuinely interested in having a relationship with the child or else he would have put forth a record of that and he didn't look elsewhere we look at the second issue of the age maturity of the statement as our i'm very happy to look at that issue your honor because i think that is a very germane issue and i think that that is the deciding factor in  to the magistrate's finding the court is very well concluded that it is a clear error standard and the degree of maturity is a factual determination i was present for the in camera hearing and i can say to the court that counsel did not submit questions in fact the court made it very clear that counsel could be present however they sat behind the child the child did not  discussion about what questions are being asked which i was nothing in the record that i can recall of any advanced questioning and i would say this with all deference to the magistrate if the magistrate had concerns about the maturity of the child because the magistrate was present the magistrate would have then been prompted to ask those questions about the maturity if we are to rest on the record that we have in the four corners of the record cases have requests for psychological reports where those not made here there was no requests for psychological reports i don't want to interject myself into the record here but i would submit that if i has the attorney at law ad litum for the child at the attorney ad litum for the child if i had concerns about the maturity level of the child the psychological stability the issues of coersion i would have most certainly moved for that but the record the well one legally i would you have a case where you're below ten were child is d mature enough to object it's below ten i don't think that there is a case that says it just even factually i don't think there's a case that that demarcates age to start she remember in this transcript when the court asks the magistrate says what is truth me or a question to ask a child anybody there isn't really much of a response of answer the child said well it's when you tell the truth and i think if that were the the single sole arbiter of the child's maturity perhaps her response to the baby then let the relevant questions become how does the child of jack and how many times who is this child asked do you in any way do you not want to go back to mexico i think the magistrate court made a finding based upon not only the direct responses of the child with respect to the issue of the return but also the court made very clear findings that's that that support the child's fear and reluctance to return to mexico because the magistrate judge also asked the question of whether the child was happy when they lived in mexico and the child answered going to guess but the child also added and i'm  from the findings during the in camera interview eight s f s stated that she rarely saw petitioner either and tory on a chihuahua that never lived with her rarely did anything with her only interested in seeing the responde and there was clear evidence in the record that the child was afraid of the petitioner because when he showed up he showed up drunk but she said she was afraid she said that directly and that he had pushed the mother in the presence of the child all of those things globally would suggest to the court and i think the court had reason to rely on that as an influence that this child didn't want to go back to mexico because going back to mexico meant further abuse further control of her mother by this man so although the child didn't and there's no requirement of a magic word of objection this child clearly noted that she preferred the united states and she articulated why mexico made her sad and it was all rooted in the treatment of the father of both the mother and of her and if a titian is going to rely on england as their bedrock case i would submit that that is not a good footing because england dealt with a child who was severely vulnerable to und world the situation that it's a mixture of both i don't know how you what we do with that i think what what petitioners attempted to do is to say that because the child expressed that she wanted to stay in america with her mother at some of her that she was making a custody decision i think that's going too far because the child expression wanted to stay in america for other reasons and the child clearly expressed why she was afraid to go back to mexico hold her very clear and compelling reasons that the magi precedents would be against me in the circuit but the child went further and gave very graphic detail of the reasons that mexico was not good for her and those reasons were clear on the record now they do overlap with custody i acknowledge that but we have to be mindful that we're dealing with a child who in her world everything everything radiates out from her home from her custody from her level of protection it is her family so everything radiate from that from that focal point however i believe the magistrate if the magistrate had concerns about maturity the magistrate would certainly inquired further if the magistrate had concerns that there was not a clear a clear statement of objection the magistrate would have inquired further but i believe that the record and the magistrates findings which this court must find and give deference to under the circumstances there is not clear and convincing evidence that the magistrate erred in this case there wasn't a magic word absolutely true there was no magic word of objection uttered but nevertheless it was very clear that the child had a stated it looked into returned to mexico because of the abuse and because of the fact that she was  essentially a pawn in this relationship and that that was not at all what she wanted to return to now i think that the court very aptly cited the vasconcellos case because this case  really does boil down to exactly what the factual standard is in this case in in the other cases cited and discussed including the syce yang case there was a issue with respect to maturity but i don't believe that that issue ties into the facts of this case specifically because again and ad litum attorney was there the court had ample opportunity to assess the child and made no finding that they need to be if additional inquiry into the maturity of the child therefore i think the petitioner in this case has failed to carry their burden with respect to establishing exercise of custody and i believe that the respondent as very well established that there was a band  case and that the child's preference and the child possessed the degree of maturity to make that preference in this case and i would ask that this court honor the ruling of the magistrate court and the adoption of that ruling by the district court because it is clearly supported by this question for me is there another circuit court opinion overruling a decision that the child was sufficiently mature the only one that i've found is england but i think this case is england because the findings in england are dental call to the findings here and that's because the court the district court in england had found that the child was that she had objected and she's old enough and and this court held that judge clarifies findings one way or another it's because it's a question of evidence your honor and as as england noted burden of proof matters the court does not start this determination from evidence from which a court could sign maturity as this panel's noted the question about her what is the truth and that's i think a very telling question because she didn't come up with a good answer and that goes to maturity i think the other one and all respect that is such a you still across philosophical question i would i might ask you what is truth but i don't think we need to take up that i'm not sure that's the best example of someone not being for mature it is an example your honor that courts have looked at where you find courts finding that children particularly younger children are sufficiently mature they asked that question and they're convinced the child that they take the child gives an answer that's not a non sequitur what's your sense of what the child has to be mature enough to know looking at this desire and whether she is sufficiently was mature to state a desire of not returning to mexico she what level of knowledge maturity conceptually does that would i think it requires first of all that the child be able to give a an whether she or he has formed a sufficient knowledge of the surroundings of relationships of what is good and bad for that person and state a desire at that level when i'm trying to find out if she's mature enough to go to college we're trying to see if he's with your enough to do what's necessary in the hague convention which is to state his so that's a mimicking of what the evidence would be to support that necessarily but it does seem to me to be a little bit slippery all of the how you match up the maturity to the issue before us i mean i think i think that in it's a little bit of a more fixed concept because the convention itself doesn't set any real guidelines but i think what you want the child needs to be able to have that maturity is to be able to answer truth versus like question the child needs to be able to make a comparison and contrast of life between mexico and be able to distinguish and i think that's very key in in my friend's comments over here that she has to be able to make a difference and that really understand the perceiving that there is a difference between where am i going to live and with whom am i going to live because there is nothing in any of the hague convention law that says if the child is returned she goes to her father the hague convention and a common result and could easily been the result in this case as both parents both mother and child returned to mexico and a mexican court sorts why because i can learn more languages here in something else it sounds like you know a fairly mature particularized choice but that is with that is objection we may well have the right to do it regardless of whether there's rejection but i wanted to know just what your reaction to that invitation to my mar you did to the letter if i have seen the letter my reaction is i think that this court should avail itself if it wishes of any opportunity to learn more of the law the structure or relating to the hague convention if and if the court system the united states is set up what appears to be and i'm not entirely familiar with the concept just an educational program or at least mentor judges is how i read the letter i but certainly have no objection i would point one thing out and is that letter mentions the name of the child which i understand is a violation of local rules and i think they are all in agreement that the child's name should be redacted or at least that letter sealed