the next matter is in ray or in the matter of an i  much the child abduction provisions of the hague convention are meant to protect the rights of children and parents but they're also meant to protect the rule of law and to prevent forum shopping in the instant case we have not just a hypothetical threat of forum shopping we have admitted attempt to avoid the ruling before in court by secretly fleeing that country with the child in question before the court had a chance to rule and forces judgment was do i understand the record correctly and please correct correct my understanding if i do know that in the hunger proceedings i'll call in paternity proceedings of the mother indicated to the court early on in the process that it was her intent to leave hungry with the child and come to the united that is not that is not correct the mother never said that to the court she never said that to the police who she talked to she never said that to anyone she never posted on face book that was never uttered from her mouth that is nowhere in the record i mean excuse me and her wrongful retention claim i understand especially the supreme court hearing certain separate agreement or court order that would have taken place that that's not exactly correct but ok when you explain that to me that a parent a natural parent in hungary would automatically have custody rights over a child so so if you are the for twenty two dollars twenty three cents are your experts said the father need we need to arrange for access to the child either by agreement or by court order is that not correct after after if you don't know if you was not if he was not the natural father he was if you was not admitted is the natural father to begin with that's true that's what you would have to go through ok but the bottom line is correctly from wrong that at the time she left for the united states there was no adjudication of any if you got custody rights but any parental rights by your client right and so so how could that be a wrongful removal if we had met that this is a unique case and this is a case of st impression but we believe that the purposes of the compassion would be extremely frustrated if she is allowed to remove the child and there is no rule in your favor any time someone even that they had no adjudicated rights by any court in a foreign country that parent could not take the child out of the country even though there's no one has managed mission there even the father of the mother of that child i think there is there there is unique circumstances in this case number one being he was the natural father which she knew but she lied about on purpose and left him off of the birth certificate the nd factor  there was already energy cation underway at which she appeared in hungary and at which the child appeared represented by a trustee in that circumstance the adjudication was already underway to solve the question of paternity and when that  courts have said is if there's a custody determination that's pending then that creates that type of issue but here we don't have a custody this is not custody proceedings which is you determine whether or not he was the parent but but that would be that would be extending this to a level i don't think any has ever extended well i don't that custody that parental determination would have automatically granted him a custody right under our gary in law you know what it was a disk would have been a disputed custody right it would have been there would have been a dispute about how much custody each one of them would have been able to exercise what he would have had to zero to fool custody not well he would have had under hungary in law he would have had a name x e it right he would have had a right to determine where the child lived and that is the right under the convention as the supreme court in this court has held that that matters for the convention to move to the defense regarding subjecting the grave risk of harm issue because if district court got that one right that resolves the whole case correct if that if you're right apply right but if it doesn't this is an effect that this court has said that prior spouse abuse directed at a child can support the grave risk of harm defense and we said that in the south and it happen ounce of cyrus out of her case if yes if that if that abuse has a high likelihood of affecting the child so the district court credited d kling concluding that it was a high likelihood both that your clients abuse miss her if she and i are returned hungry into the high risk of abuse and and i was development of a psychological disorder s abuse the district court the st three pages of the opinion outlines extensive abuse that the court found right the nd thing that i would point out is that the appellant has two other children in hungary and there's no allegation of any abuse towards them there's that's plain and there was evidence of that and and i don't know i don't know where the court would have gotten that conclusion that he hadn't been any told the credibility funds go out the window simply because there was no evidence of any type of abuse with regard to the other children that that's what that that is determining factor i'm not saying it's a determining factor but it but it goes against the difficult standard which the court already had of finding this exception it goes against meeting that clear and convincing evidence days of community services have not suggested this report in forget to look at that issue that's because this court specifically addressed the question of the little measures and found that they did not exist i would say that it was clear air in finding that he had a friend with the police were pursuing that and working with her on that the only reason that that was not didn't come to fruition is that she fled the country in secret and that record from hungary and police departments in that's in the record that statement around here i don't know how much family law you do but you apply for a protective order and you go where you're going to get a temporary one almost automatically if you allege certain facts like spousal leadings and those sorts of things there's no we're working on it i don't know exactly how it works in hungary but but she had all the cooperation of the care hungary and police department that they were capable of giving and yes which may be insufficient under the convention well i don't think that the district court examined the hungary and police department no i don't know good luck charlie was the basis for it but if he goes in and says i try to get a protective order and i didn't get one it is certainly not out of the realm of possibility or that you know of anybody who practices family law or any family court judge or any judge who has participated in family that you're not getting it when you ask for settled defense which the court found was a plausible here that defense was waived by the appellee before the trial even occurred there was two rounds of briefing it was never raised their it's her burden to present the evidence they presented no evidence of this at trial there was no mention of it in the two rounds of post trial briefing we were prejudiced by that dropping of the issue substantively there's a reason why it didn't come up a t all until the judge issued its his ruling and he had then he just found that the well settled defense applied to the child in this case substance lou there's a reason why they dropped that defense well settled does not apply to children this young the child is three years old at the time of trial they're generally not deemed to be old enough and mature enough to make the kind of ties that fall into the well self defense additionally they're living in a homeless shelter  life in the united states after being lawfully relocated here by his mother must be returned to hungary mr mahajan argues that the foreign court order that was finalized more than a year after that lawful relocation somehow turns  relocation into a wrongful removal or a wrongful retention under the hague convention it does not and the trial judge was justified in rejecting the petition on at least three independent legal grounds i want to quickly highlight for the court before i talk about the law here that the trial judge made credibility determinations after receiving life to witness testimony and he found the mr muhammad she was quote simply lying and those same lies this are now being peddled to this court after being rejected by the trial court  my friend discussed several of those lies one that ms herrera never told the hungaroring court or the police that she was coming to united states that's contrary to the district court's factual findings which you there's also exhibit b t which i'm not aware of what that is but it's primarily based on her testimony i think that there is also and maybe my friend can look up exhibit bt that might be the  court transcript next this issue about whether isabella knew that maha she was the father the trial court credited her testimony her testimony was that she did not know and mr monti actually threatened to kill her if it turned out not to be his child remember she was forced into sexual liaisons in december two thousand and thirteen which is exactly nine months before the child was born in september two thousand and fourteen so there is and was in her mind a legitimate question as to whose child that was whether it was his or whether was de valentine smith child remember this smith as much as drug dealer and basically hachi had isabella sleep with his drug dealer and i think the other thing i point out when these two men miss herrera was not in her teens and mr march she was approaching forty and just to give you a flavor of the sexual abuse that occurred so out of these credibility determinations that the trial judge made there is for important factual findings one that ms herrera was the victim of prolonged and intensive use of a psychological sexual and physical nature of the hands of mr macho and the reason that the record is so long in this case is because of how well documented that abuses to that because of that abuse was herrera never intended to raise her child hungry she always intended to raise him in the united states worst of other lives three that if that child is returned to hungary he will be at a heightened risk of being harmed and for that the child is now at home of the united states and settled here thank you so back to the question of telling the court so one of the bases of the trial court's decision that miss her had told the court was exhibit b t which is the hungaroring court transcript so i point your attention to that again page let me ask you this and i know we don't have to address this if the defense of great risk of harm applies a test that says in the absence of a visual residence in the new country then there would have to be a subjective agreement among both parents that he be allowed to stay there we don't have that in this case he doesn't have any country official residence that he can reprint return to hungary because residence i guess my point is that we don't know exactly what supreme court if they determine that a child of this age can have the two engines what the test is going to be absent that it's a test is you look at the intent of the parent or parents right at the time of the relocation who had the authority to say where the child lived if there is unified intent so the case in my understanding is not about whether joint parents who are the only custodial parent can decide where the child lives it depends on if there's a diversion of the parent's interests brought to the united states and therefore he should return is that not a possibility i don't think it's a possibility because then hungary wouldn't be the country of official residence either because there was never any shared intent to hungary would ever be a brits with a child with the parents were before the removal right which would be the default at that point right but i think if you look at redmond and white i think the point is that a springing custodial order so is a case where you have parents from the get go right you have to be parents from the get go the problem is we have  you know retroactively but even if all that aside because of the well are the two affirmative defenses that isabella established the child would have to return anyway and in talking the grave risk of harm there were three bases for that determination by the trial judge there was a predictive determination in which there was no clear error that isabel was likely to be abused again if she was to return to hungary and that fits well within this court's case  law that that is sufficient for grave risk of harm there's also a nd ground we have on repeated witness test expert witness testimony establishing that it's likely that my hachi will abuse the child directly and then the rd ground which we raise in our brief is also you know a late breaking course see if you go in which was just decided by this court this summer after we closed briefing nine hundred and thirty f three thousand five hundred and thirty three and in that case you have a young child like we have here there's a grave risk of harm and in that and then turning to now settled so we have no we did not waive this issue at trial ms herrera raised this in her answer and while it's true we did not devote briefing to it before the trial court the reason that it's not prejudicial to my hot she is the fact that the analysis under the well settled defense are now also defense is the same as whether the child is a climatized in a new country and you'll see in our briefs there's extensive briefing at trial as to whether the child was  actually the same evidence and so it wasn't prejudicial to my hachi for the court to reach that  so if you have shared parental intent and then you have a deviation from that you have a wrongful remove all that child if they go taken that child can still establish a new have a child residence in a new country if they become a climatized to the new country  so we discussed that away sorry you're asking me if there's case law are you asking me whether there's actually no in the record here yes or so again these are factual findings made by the judge on which there was no clear error that the child lived continuously in new york's and this is that page forty six to forty seven of the judges trial judge's opinion but he basically elicit about a dozen different things his continuous residence in new york the time the fact he spent most of the time at one address the live in a safe and secure location that he was enroll in kindergarten that ms herrera is supported by her father financially that he has friends in new york that his primary language is english and he speaks only a few words of fun garion that they are both lawful permanent residents of the united states that he has medical insurance and also expert testimony about how well adjusted he is and also if you look at that list alvarez case which we cite in our briefs it's a very similar factual situation you have a young child whose contacts the united states include primarily school family medical care and which the court found that the thank you i think there's some confusion i'd like to clear up about the big chill residents so bijou residence it's very rare for there to be a finding that a child has no habitual residence when they're born and that is what the court found below here that when he was born in hungary lived there for a year on year in parents they'd always lived in hungry hungry and citizens the court still found that he had no who bitch or residence because there was confusion or intent or or a cloud of confusion around where he's going to live in the future but the court in doing so relied on a rd circuit case del boy and that case involved medical tourism the mother went to another country to have the child just to save money on birthing expenses and in that case the child didn't have a visual residence in the country of birth because the country of birth was not the mother's a betrayal residence but in almost any other every other cases address this issue they distinguished del boy and found that the birth country grants bijou residence to the child upon birth i would point you to for example nicholson which is a st circuit case holder true that this would be a unique case for removal in the united states but as this court has held on a novel issue interpreted in the convention we should look to our sister signatory states for how they've interpreted the co and all four instances were where this fact pattern has been presented they have found a case for removal based on custody of the court adjudicating the paternity or custody dispute a not going to someone move to another country and then there's a custody determination make it a violation when you your client can go into state court right and and try to make some custody argument in new york city court right is not open to him that's that's true but the purpose go ahead ok the purpose of the convention is to determine what is the proper forum for that custody determination and the proper forum is the place where the child was wrongfully removed  from there already is there are already was a proceeding going on about the custody of this child and it was in hungary and she skipped out on those proceedings i would also point out t enacting statute for the convention contemplates that wrongful retention wrong for removal should apply even before an order granting that custody has been enforced additionally the president report which is the authorit commentary in history on the convention specifically states that the remedies of the convention should apply to cases where they are removed before a custody determination can be made by prior to a determination that a determination of paternity is the functional equivalent of a determination of custody yes our expert testified that automatically take you into state court so they are with me on this and we've got paternity and there's a fight over c but you but you automatically have a convention right to determine that that that you're not her you cannot take the child out of the country without your permission so under the convention time there's a somebodies coming in and claiming paternity you know that person automatically is fighting custody that's what you want to say automatically it is it is part of custody it is not their expert she's referring to custody in the sense of like fifty percent fifty percent weekends holidays that type of custody division physical custody of the child that's what she's referring to she's not she's not referring to the right of a parent to decide where the child lives that is the right under the convention that matters and that right is automatically conferred by parenthood i would refer you to her and my parentage was incomplete right to her parentage was being determined by the hunger in court it was a part of the lawsuit it was a question of who was the father of this child because that was left blank  thank you thank you both will reserve decision this case