accordingly this court need not reach mr duncan's claim under the convention against torture and if i may or honors i'd like to focus his argument on the question of derivative citizenship in light of the to begin t states parent when the child has been in the legal custody of and has resided with the adopting parent we do not have a physical residence requirement in the statute governing mr duncan's claim for derivative incarcerated severed or dissolved the subtle the submissive of the rights and obligations between his father and himself that is not in accordance with our understanding of the constitutional rights that are accorded to biological parents over their natural children maryland law has abound that the mere act of a parent incurring an involuntary separation such as entry into incarceration sure they've been appealed up as distinctive concepts we have a question of whether there was physical custody there was not a determination of legal custody allow because the i found it was not necessary as that and diagram when you are a parent or you have an inherent set of rights including custody at least under maryland law in maryland legal this breaking down a general  that would imply that when the when a parent is with their child they are the individuals who at that point have that decision making power i would not use it as a preclusion just say that only when that over ten years i think there has been that physical presence that these days all you prove that i would agree with the factual predicate your honor however physical presence means something different within his father's a legal and physical custody the question is whether when mr duncan's father entered incarceration whether these custodial rights were dissolved or terminated for purposes  between a parent and a child does not mean that physical custody somehow suddenly dissipated you your honor and to step back a little bit further to the sense that a parent has constitutional rights over their child you case does show the flip side of that where you have a the stage moving to terminate parental rights they say the act of term a nation what it means that a parent could no longer exercise physical and court my name is lindsay donahue on behalf of the attorney general there are two issues before the court today first whether mr duncan satisfied the derivative sufficient citizenship status requirement that he'd be in his father i think the operative fact there it's is different than it apparent to is who is it on a business trip a military person who is deployed to answer your question i think what is the proper standard of review that in a reviewing body should use right and they decided that when the court has to really wade into facts to figure out who didn't want the reviewing body uses a deferential standards yes turning to the citizenship issue i'd like to start where my colleague left off considering the statues both mr duncan and the college before it the case that lead not your encouraged continuing parental involvement at a one month separation would not be enough to truncate physical x y z physical custody where the he had lived with his father for the entire time he was in the united states so you would your honor we don't khalid and this case represent opposite ends of the spectrum i'm not sure what happens in the middle well if you had some high school students were schools i school period was studying abroad and this goes to just pop up second question about a military deployment as well the operative difference there in the government's view is that whether or not they have a right or in an obligation where they can exercise child someone separated only by distance can still choose when to call their child when they can visit when they have the child visit them the mr duncan's father was unable to do that because when actually we don't have that here when we have here is a father who by my counts made three decisions and his child's life that his childhood would go to a nigerian boarding school for a time that he would play football and that he could buy our jordan's does require while the child with the parents in a c person who is exercising the karen control was not mr duncan sr because his grandmother she was law and who provided a house for him i did consistent financial support and took him to and from school to and from practice who made arrangements paid for his care when he went to nigeria for those reasons mr duncan said cannot show that he was in the physical custody of his father to satisfy the definition that is required i would also like is there not a question here supporting your child i'll be at not directly next to your child or going to bed and simple never unite as a form of caring for your child and just because you're incarcerated does not mean that you're a lot of an affection and care of your child is abrogated especially when your exercising those through sending money daily or almost every other day phone calls this it's and exercising decision making from on on a daily basis though through someone else that is an exercise of care and control then i think the fact that yes it does need to be analyzed distinctly or honor in that it was added for a reason congress would not have done it correct your