proved his case for return and the burden shifted to cardozo to prove one of the narrow exceptions to return the exception of the issue here is article thirteen be under which cardoza has the burden to prove a grave risk of physical or psychological harm magnitude of the harm the case law is clear that the physical or psychological harm must be severe and substantial as a serious abuse or neglect that's a probability of harm there must be a real risk of harm in the immediate future when the child returns for the cost the termination probability is proved through record of frequent and pervasive abuse the judge applied an incorrect standard here she held that a non negligible probability existed of some injury occurring some day after the return she did not examine whether there was an immediate risk of harm that would be severe and substantial which is the proper standard but even if she had applied the correct standard under the  on this record card did not make it clear and convincing proof of a grave risk are the opinion credits just one severe instance of violence by mr two thousand and four and the record from the trial contains allegations that specifically discussed only three other isolated incidents since two thousand and two all involving corporal punishment cardozo did not establish that any of these instances were particularly severe and three events over twelve years does not show frequency much less pervasive pattern of serious child abuse the opinion that attempts to fill in the lack of evidence with vague testimony about spousal abuse of corporal punishment this is not clear and convincing evidence first the opinion relied on  and involved his cardozo who is no longer living with mr paul who feel this since it alone does not prove that this child now faces a severe and immediate risk of physical harm if he is returned to mexico that's the only instance of violence in the judge's opinion and if we look at the record there's only three others pacific allegations of violence the second incident was in two thousand and twelve miss cardoza sr described that she heard mr displaying the children with a belt for not eating their lunch the incident was not evidence by any eyewitness testimony or even corroborated by miss cardoza there's no evidence in the record as it's a varity of a corporal punishment or if it was any different than the type of belt disciplining that miss cardozo admitted to doing herself of the children the third incident was in two thousand and fourteen when the child was three years old mr falk allegedly hit the child as a reprimand for failing to feed roosters no facts in the record indicate how severe he was hit how he was hit or if it caused any heart finally the record included miss cardoza hearsay testimony concerning a two thousand and fourteen incident where allegedly hit the daughter and bruised her leg there's no evidence as to the circumstances of this incident and there's no eyewitness testimony other than this two thousand for domestic violence incident and three corporal punishment incidents over twelve years the record included no specific factual testimony about incidents of physical abuse the opinion relied on vague testimony that cardoza hit the children with a belt very hard that he did it a lot cardozo proffered no specific dates no frequencies of the alleged abuse and no accounts of this parity or this child being injured in any way at any time the corporal punishment this record was not severe and as i said it's entirely and that's the opinion credit one specific instance twelve years ago that was fear other than that the record again contains vague allegations he would always chase me he harassed me he would mistreat me he would hit me in front of the children  cardozo put forth no specific days no specific frequencies of spousal abuse no explanation of the magnitude of the harm and no evidence of any specific psychological effects on the child because these spouses are separated the case law provides that the danger of the child being psychologically harmed from exposure to spousal conflicts is a lemonade or significantly diminished here to find psychological harm the judge relied on the child becoming sad when questioned and changing his demeanor as he discussed the mastic violence and returned to mexico there's no evidence in the record about the child suffering any specific psychological injuries receiving psychological treatment or or receiving psychological treatment a child witnessing spousal abuse standing alone is insufficient to prove a grave risk of psychological harm and the child becoming sad simply does not meet the burden of clear and convincing evidence of an immediate risk of severe psychological are finally cardozo also adopted ducted this child's older sister with united states she then sent the daughter back to mexico voluntarily and at the child's request to live with mister this daughter in any way in the last two years that she legend in mexico and the court concluded that sending the daughter fact was a mistake and that was a clearly erroneous factual finding as the mother did not testify that this is a mistake and the fact of the matter is that cardoza return this older child to live with and there's no evidence that any harm whatsoever came upon her this goes straight to the heart of the magnitude and the probability of a grave risk of harm to the s evidence that would show a grave risk of severe physical or psychological harm to this child child instead cardozo enter into the record a lot of vague allegations that didn't include any details on frequency or severity of abuse and this is not a best interest of the child analysis absence specific backs indicating an actual rape or is going to media harm this child should be returned to mexico for custody germination  the judge for a second how can you credibly argue that you had no i've no opportunity to object to the judge's interpretation of the child's testimony or somehow that it was incorrect when the judge offered the parties the opportunity to either view the end camera interview or to or to object to the questions that were asked we did have the opportunity to object to the questions that were asked however the conclusions that she makes from those questions but she asked questions are you afraid of dad now are you sure a little she concludes this child is sad and he changes his demeanor and she uses that testimony improperly to find that this child is going to face a great president a psychological are every charge in mexico without any psychological testimony and without anything indicating that this child has even suffered any harm or will suffer arman tutor and further that pertain to the child with missing spousal abuse here the spouses are separated if the child returned to mexico rather than about the conclusion that was made and i think that's an important distinction to recall the court heard a lot of testimony a lot of evidence about was married to somebody else she the abuse continued after the daughter was born and the abuse continued after eight the minor child addition  this card as it got returned her to mexico and at that point this code was a daughter and that that the daughter i believe was thirteen or fourteen years old so she threatened her own life if it wasn't allowed to return that's correct and the mother it then agreed that's correct so where is it in the record and that supports judge coleman's finding when judge coleman found that she felt that it was more likely the cardozo exercised poor judgment or made an irrational decision when wayne m s is expressed desires against her needs to return or to the father where is that nowhere where is that supported in the record to make that case as well record shows that he beat the child and contrary to the argument that you previously heard it the record shows that he beat the child once at least were more severe in the extras were of the mother force that was used in beating the child the court notes that she credits that testimony as well language from the opinion from the judge promised about a non negligible risk and says that that indicates that judge coleman used the wrong standard but that language can be true would some day lose control and inflict actual physical injury on the children or at least from the daughter could not be thought negligent in other words in van to send this court found that there was a non negligible risk of physical harm just as the district court found here and that was enough to establish the grave risk of harm exception other courts other courts other circuits have similarly found more in a run in the eleventh circuit out of the alcoholism and a violent temper established a grave risk of harm even given in the absence of any physical abuse the child the facts here or more severe then both of those cases again here we have twelve years true but there is no requirement that there be any expert testimony about harm to the child especially in the instance where the harm to the child was done to the child directly where there is physical harm done to the overreached the distributor reached when it refused to allow her to present expert testimony that she had asked to present that's not the case here nobody requested any expert testimony in this case and your special if the court specifically with regard to the non negligible probability issue the court was coating the fan dissent case with venice and made that remark in the context of a discussion on undertakings and whether undertakings were appropriate with sending something is highly probable not did anybody forbid you from bringing up evidence as to how m s is doing in your client's custody no your honor but i would offer that they have the burden of proving i understand but both sides have an door threaten the family with a knife and stabbed the mom's coworker he said this is much more less serious facts than the belt belt things that occur here in the garage and case the the father was engaging in daily binge drinking and he threatened the life of the infant child there but they're very different facts with regard to he keeps categorising as abused throughout the relationship but there's not a specific evidence of frequency and how often views occurred in this question about the return of the daughter as she alleged the mother allies of the daughter threatened her own life she was using that to show that she exercised good judgment and setting my child back to the either back to back to mexico it was not a not that it was a mistake and that  she testify that the daughter threatened her own life or not she did she know that but that was used to show that she had made the correct decision and setting this child back to mr what we lost and just thank you thank you thanks to both counsel cases take it under advi