before the court here today in the case one of the critical issues was whether they could bitch all residents had ever been florida for the for the child in question the parties critically there they had disputed whether or not what was the purpose when they when the parties had initially moved to florida the apple and said this was because we were we were going to get married we're going to have raise a child in florida and the apple in that case said no there no we were this was this was more of a trial they both traveled but he said that that she left most of her material in guatemala so in that case this court had found that the district court properly exercised its discretion there was conflicting testimony about that moved to florida so the court credited the app belly in that case regarding that move to florida and then found thus there had been no habitual residence that was established in florida now in contrast to that case of my age in this case it is undisputed that when the parties moved to maryland that they moved they were already already a married couple that they had the settled shared intent to raise their child here in the u this is this is the the most important factor in this case because once there is a head a bit which will residence once a parties have established some shared settled intent regarding the children then there are variety of ways that that habitual residence can change one way that it can change but it's an odd thing in this case in one way and that is that the parties made an agreement in your view or had a shared intent before the child was born but that also leads to the possibility that the parties can change their minds once the child is born and isn't that essentially what the district court concluded here that whatever may have been the husband and wife says shared intent in march of two thousand and fifteen by the time the child was born that shared intent had changed dramatically because of all of the events that had taken place isn't that essentially what the district court concluded respectfully yonder i think that's not quite what it concluded it did conclude that the the shared intent was regarding where the mother was going to live and the focus was not on whether the parties actually had a shared intent regarding the child actually what what the district court highlighted was that there was no reasonable expectation that  cunningham had could have that wife would actually return with the child and that he had no practical way to enforce his desire to have the child returned to the u s but the questions of whether or not he also but there are also some of the text messages in which and they're a little hard to decipher because of the translation issue of course but some of the text messages indicate that he was agreeing or at the very least acquiescing in her moving back choice text those and others those of some of them fair enough your honor for the october that there's a there's a separate question but answer that question directly there's no there's no acquiescence there's no discussion regarding the child  american passport american citizenship in japan and japan and then came back to the united states they came back purportedly for a wedding right correct correct your honor according to her testimony they came back for the wedding of her or his brother you know honored not according to her testimony in the court found her testimony to be incredible according to her she came back to the u s soley for the purpose of having him see the child and to finalize divorce papers and it was his testimony that she came back for the wedding that's correct your honor and the district court in this case that's a temporary return is it not if you're coming here for a wedding that has a beginning point in an ending well he was going to be short lived because of the volatile relationship but the important factor is that all this october all this behavior takes place after the parties had initially had a shared subtle intent to raise a child in the u s now mother goes to japan but but they had this year they had the shared intent they go to live in maryland in army housing and then all of these events are her whomever you place the blame on there were serious problems between the two of them and at that point it seems to me that whatever the parties had an intent about can certainly change and at the end of the day that's essentially what the district court concluded right that by the time the baby was born by the time she had moved back to japan things had changed dramatically from both both of their point of view yes your honor but there was no shared settled intent and i believe didn't testify about a shared settled intent that they had agreed to abandon the previous a bitch will residence and establish a new one in japan for the child the focus that the district court in the judgment focuses on it's entirely on the mother's move and critically it doesn't even it doesn't find that that they had a shared or agreed settle intent for the child to go back it was that yes he agreed that the mother could go back and he certainly testified as about his reasons but the court is right but that is why the fact that there was at one point in this case a hip issue a resonance is so cr because courts absent shared settled intent hold that the court has to be very slow to perceive that an actual habitual residence has been abandoned and that a new one has been established because otherwise isn't that what the judge did  fit all these facts and she was in for a five day hearing on this she had mate credibility determination she rejected some of your client's testimony accepted some of the same with regard to the mother except some rejected others and went put all these factors together came to h element of her finding wasn't of it was of was not a finding of fact we argue it was a legal conclusion that because of because husband had agreed for wife to go back to japan because that was going to be indefinite because he could have the hope for her to return but it was not reasonable it wasn't a reasonable expectation these were all these are all questions of not whether there's a shared settle intent it's a question of whether the court believed that it made sense or it was abandoned the case of case law establishes that while the in the record evidence has the unequivocal point toward that abandonment and in this case the record evidence did precisely the opposite now was standing at police reasons for coming back which in the court found apple e's  apple e's test of testimony regarding the reason to lack credibility well the fact of the matter was is that this child digs they continued to have communications while they were in japan they appellant continued to pay at barely affirmatively took the steps to make sure that she got american citizenship for this child that is so the social security card the passport and within a couple of months of the child's birth she's mine one way tickets for her as a child and her adult teenage son to return to the marital home in maryland now she had a different testimony at trial which the court found a lack credibility about why her purpose was coming back but the reason why it is important is because once there is that set that settled intent for habitual residence of the courts the lows to just find that it's changed because parties parties are often volatile i don't think there's any hague convention appeal that doesn't involve a relationship that turned volatile otherwise that wouldn't be the litigation in the appeal that resulted but  when they look for that shared settled intent we have a case where here i'm like a he said she said from maryland it was absolutely undisputed that they had had a shared settled intent to raise a child in the us now as far as going back mother has her testimony one way and appellant had his testimony another way but either way they didn't have the shared intent for that to raise a child in japan even if the mother did but in that case then the court would have to look at the record evidence will do we have unequivocal evidence of abandonment and there isn't there also evidence that his chain of command didn't want her coming back and was concerned about her coming back and wasn't thought in fact that the district court was able to focus on or at least consider whether there's evidence of the chain of command but your honor i don't argue that we're godless of whether the chain of command wanted the wife to come back that doesn't that doesn't go to the question at all of whether the husband had to share a settled expectation but he goes to the question of why in part he acquiesced and having her sent back to japan that it's vet is correct your honor yes it is a junior enlisted man here with the chain of command that a got involved very quickly on that decision for her to return and his own testimony about his return his concern because she had previously had a miscarriage and she was obviously making serious allegations obviously wanted to return japan  those are reasons yes that contributed to his going back and they but they don't speak to the separate question of was this a shared settled intent by the parties to abandon altogether the us as the place to raise the child your honor i see him i'm into kathleen crack of shots and bone appearing pro bono on behalf of happily rio kind him at just the start that the threshold issue here in this case as as explained by the trial court judge is whether and how the initial residence was formed and where the father takes issue is that although the trial court used the same lash erred intent analysis that the father the same sort of analysis that the father wants to use the father  different application of the test and the problem with the way the father wants to apply the last shared intent is that it doesn't fit neatly with the facts of this case and as the hague's that tells us her betrayal residen determinations are exceptionally factually explicit and the trial court recognized a noted in her order that when she was looking to the cases that used the last year and ten analysis that it didn't readily apply to  because those cases of vault from cases involving children who had an initial habitual residence which then later shifted which of course is different from what we have here because the initial question is how was a habitual residence initially established and in the father's argument continues to say that just glosses over and suggests that the united states has to be the initial habitual residence and bases that on an argument that once the shared intent was made in march of two thousand and fifteen the deal was done the die was cast and it couldn't be undone unless the father agreed otherwise and the fact remains that when you're dealing with this unique factually unique case that test doesn't apply the same way it can't be applied the same way because as your honor pointed out earlier this is different in that the child had not yet been born and when you look at the hague case you recognize from the text that the hague contemplates trying to address situations where there has been a family unit that has broken down and someone is trying to move a child across the nation and in fact in holder they specifically note and it's one of the cases that's relied upon by  by the father is at the conventions concerned with the situation where the child is taken from a family and social environment in which its life is developed that presupposes that the child has actually been born you can't have social when they first moved to maryland despite the turbulent relationship they both believed then thought and agreed that the child would be born and live in the united states correct right the district court made that initial initial finding  his argument i think is almost tantamount to saying this is the you know laughter that shared intent was reached this is the unilateral move of one of the parties and the unilateral move one of the parties can't destroy what had previously says that  shared intent that's essentially the argument correct tell me why you think that that's either in correcting in correctly there is a factual matter or as a legal one it was a legal matter because he's trying to apply the last year intent to a the criteria to establish an initial capital residence vs the one required to shift one it's it's not and you dispute them in the case law it's clear if you're trying to shift to have a chill residence you have to it's much higher burden but for purposes of the stablish in itial habitual residence this court recognize that if it's too burdensome then you're going to have a child who can never require a betrayal residence and then it's going to open the door for the parents to play with it referred to as abduction ping pong with the child and so there factually district so you've got the last shared intent test or analysis but you can't apply it in the same fashion so the trial court did not she applied it to the facts of the case presented to her and facts of that case as this court already noted a moment ago that shared intent was long since gone by the time the child was born and so when the mother went back to japan it was mutually agreed the mother would go back to japan and what's more when she returned back to japan she returned to a country that she had spent her entire life and from time she was born and was raised to raising her adult daughter raising her teenage son and their young child for all but two weeks of the failed relocation attempt back in maryland so factual unique from the other cases that deal with the last year to ten analysis when it's applied to a child that's been born abroad you difficult to see where in the trial court made recognized that when the mother went back to japan she reestablish residency with japan she notified the local authorities prior to going over in march she had told him she was moving to the united states when it was agreed that she was going back to japan she notified him that she was back she resumed employment she readily resumed the social structure that she had had for thirty plus years in okinawa she resumed the residence that she had been sharing with family members so by the time the child was born she already had that already in play and just picked up where she had left off for all but of two weeks over in maryland and when the child was born she went secured benefits for the child health care for the child and started raising her child there so for purposes of what obama says in terms of establishing an initial her betrayal residence and also de with for that matter you look to see when the child is if the child is born that they have had a chance to be in the country on some footing of stability and certainly were a mother goes back to the country she had spent her entire life with the exception of those two weeks of the failed relocation effort there is that footing of stability so when the child court was looking at it from the last year to ten analysis the last shared intent of the march two thousand and fifteen for the child to be born and raised there was long since gone and had been replaced by a shared intent for her to return so in terms of applying it she had to apply to the facts that presented in the case that we had so it cannot be applied in the same fashion that the father urges because it would be inconsistent with the hague convention again the hague convention doesn't contemplate when you look at the plain text of it there's nothing in the text of the hague to suggest it ever intended to impose a habitual residence on a child for a country that he's never been to so you also look at the other cases that recognize that a child when they're born in a conflict that the child should be deemed to have a habitual residence of a country that he's never been to and by the time the child was born in this case she was back in japan in a country on some footing of stability so then the question became for the trial court she had to separate time frames to be dealing with march of two thousand and fifteen she already addressed it so now she's dealing with october of two thousand and fifteen the parties had a lot of back and forth in terms of different  versions of events but ultimately the trial court correctly found looking at the over eleven it's that if nothing else there was an agreement that she was going to be going back to japan on october twelfth and it wasn't until he met privately with his mother for over a half hour that he suddenly sensor texas says you can't have my baby baby says goodbye go home no go home no goodbye and the court readily recognize that is the very sort of conduct that the hague tries to deter that article seventeen speaks against which is that you're not supposed to go and engage in self help and go and utilize local custody proceedings to try and gauge the legal advantage and retain child if the father did not want the child going back to japan he had an option he had a legal recourse contrary to what council's been saying he had an option he could have filed a petition under the hague but you can imagine how that might have been greeted when you're dealing with th unique situation of a child who has not yet been born and again you're faced with the reality that the hague was never intended to address a situation where you have a beauty and that's broken before the first child ever been born you need only go look back at all of the premised on the notion that the child is a bitch will residents had to be the united states because they had an agreement back in march of two thousand and fifteen the die was cast the deal was done it's written in stone and you can't change unless i agree and that is not what the h the the shared intent was long since gone by birth that is one hundred percent correct and that's why the cases of who's o and this court's decision in sewell are so important because they look at that could the question of  and vigil residents whenever there's been a breakdown in the relationship and insult other reason why the district court had found in this court had affirmed that the vehicle residence had changed from the us to germany was because in the two and a half years after the child's birth the parties had obviously come to a shared settled intent that the child wouldn't he be raised in germany but the district court was the magistrate meditates ruling had been that if we was looking at it at birth he would have agreed that yes the last shared intent had been for the us there was no shared intent by the time the child was born so at at that point in the case had he had had there been a hague convention petition filed the vigilance would have been the u april it's a very quick flick a flash of a moment but i respectfully disagree with the assertions that with mom saying i'm going back to japan with the chain of command saying she's going back to japan with and with the husband saying ok go go back to japan for now  that at that point he should have or could have filed a hague convention for relief i have a question he said the husband said go back to japan and you had it for now where is the evidence that he said for now what will his his testimony was  that that he expected to be temporary he expected at the time this occurred and the words going back to the time where were the army kind of ticket when we took it back to japan where was where is the evidence that the for now parties initially have a shared intent well then yes there are the you know my our position has never been the die is cast that's it period shared intent can change the parties can it can change together agreed to a different a shared settled intention or absent that shared intent the there must be for the shared intent where there must be a meeting of the minds regarding the bitch of the child submit to residents that's and it other cases that i cited but absent that shared intent there can still be a change in habitual residence but it takes the passage of time for instance or unequivocal record evidence that unequivocally points to an abandonment of the prior residents it's not just another part after the fact as to money otherwise the rule is just simply amounts to councils assertion that well the child must it must have been japan because the child was born in japan well at the time the child was born the child though there was no shared settled intent anymore that previous shared shared intent was the us tell me if i could summarize your argument your argument is this is a issue of the law not a fact from god because there's no evidence none whatsoever with regard to the establishment of either the initial or a change  will residence in japan because if if there were a material fact dispute then we would have to that's the lower court abuse her discretion would have to for a primarily effect of it a matter of law  no the big if this is a case where the wife had testified and i'm sorry the apple e had testified according to the way the district court bill believes that things happened that would be one thing if they if it was just a matter of weighing testimony making a determination yes that's court's discretion here the court found most of her testimony on these critical issues to lack credibility but i thought of erroneous lee applied the law and the judge relied on all the others including emails and tickets and things like that wasn't just the wife's testimony and she didn't and he the lower court rejected some and accepted others of her testimony right there is general generally correct yes you are