retainment of a minor children occurred this court previously in two thousand and nine in the jenkins v jenkins case found that the petitioner failed to prove that the children actually been wrongfully retained and therefore as a threshold matter the petition was denied in that case the fact pattern is very similar to this both parents moved with their child from israel to the united states at some point afterwards the part marriage deteriorated and the mother of the child decided to return back to israel to live she wanted to take the child with her father refused to allow her to do so and she ended up on her own going back there she then filed a petition asking that the court order the child returned to israel claiming that the child had been habitual resident of israel this court after reviewing the case found that there was no actual retainment wrongful or otherwise since the parties had moved together to the united states that is exactly what has happened here isn't that a factual determination that mean the parties gave different accounts of the circumstances of their move you are right he said it was just supposed to be temporary correct he did say that  however the other testimony in this case which says significantly outweighed what the petitioner brought was that the move was not in fact temporary not only did the respondent testify that it wasn't temporary but you also had her family members mutual friends of the parties a government worker who had no reason to be biased at all all thought that this move was permanent neighbors that had met them it when they when they moved here all believed that this move wasn't temporary but that the intent was that they were relocating so is the standard clearly erroneous what is the standard well i believe the standard looking at cas case law is actually a mixture of the mixture of fact and law  previously in u s b talker in two thousand this court looked at determining a betrayal residence and found that that review should be dino and robert b tessa in this court said that it's a question of fact this i think that the standard appears to be a mix quite ok are you directing yourself now to who bitch will residence or wrongful detention well i'm starting out i believe there was never any wrongful retention at all to begin with the parties moved here together mr pantless on his own decided to move back to australia did not take the children with them john even asked it took a so then we were sort of with them my question is isn't that a trial court determination and what is the standard to review that i mean and then you went into the ritual residence so well and simcox in two thousand and seven this court said that when father said that there was a wrongful return to a right he did say that well if he says that and she says to the contrary at that a question of back there if the court could come down on either side that would be a question of that correct but i i mean i believe that the plethora of other evidence submitted including the testimony of a number of other witnesses can show that that was clearly erroneous and her finding the only testimony that it was possibly a big keisha and that it wasn't a name move and that she wrongfully rick would have retained the children was his testimony alone and that's it well it isn't i mean if he is more credible than her witnesses isn't that sufficient to support the trial judge's fact i don't believe that many you don't have to i mean just because you have one witness against four if the one witness is the more credible that that can be sufficient to that's what we rely on the finder of fact of the jury or the judge in a bench trial and but i do i'm going to i guess i'm asking you hypothetically if a trial or fact finds one witness to be more credible than retainment even if the parties were on vacation mr banta laris never made any arrangements for the children to ever return to australia there was never a decision as to if the children returned when the children returned where they would return to the us and then to testify that they had an understanding that they were only coming temporarily in the whole family was going to move that's what he testified right that's the way a trial works one person says one thing the other person says something else you have a judge who decides who to believe is that is that your whole argument here is that the judge believe the wrong person no that's no i don't i don't believe so i believe that in addition to that when she looked at as to our second assignment of error when she looked to determine what the bitch will residence was of the children at the time of the he alleged that there was a wrongful retainment of may of two thousand and thirteen that she was incorrect in determining that it was australia ok to  argue that she had to look at these three children as separate individuals no you see you may have no argument that that that a four month old that a child who's four months old and then comes and lives in a new environment for a year did you make any argument about that the that that child's a bitch will environment is going to be where she spent the last year what i believe through the testimony yes we i mean we did argue that the children were very young when they came to the united states and that therefore they had acclimated to the country in particular because of the child being only four months old when she arrived the other two children were three and five and the three year old suffers from severe autism and then therefore his her home was probably very difficult to ascertain and that therefore the intent of the parents was very important in determining whether that's a different argument ok and is that the you're pursuing that argument here too that you go by the intent of the parents yes i believe that it's necessary in this case to look at the intent of the parents when you're determining a betrayal residents why why wouldn't you just look at a child who was three and then comes to this country and  receiving treatment for autism and therapy and all of that which he didn't have before and what you know what a trial those who are generally remembered why wouldn't you just focus on on the fact life because the intent of the parents at that young of an age has a significant influence on what the children believes to be home a four month old can't create an understanding of what home is other than that environment set up by that parent likewise i believe because this child at even though he was age three he was very young but also because of his disability could also likewise not have created his own idea of home it seems to me that you gave up your best arguments clear that the judgment as to whether or not the intent of parents would be considered in cases where children were very young or perhaps suffered from come some kind of developmental disable was not being looked at in those particular cases because those children the facts didn't the facts in those cases didn't involve children of young ages necessarily so therefore i think this is the perfect opportunity for this court to look to the issue of parental intent  consider that as a possible factor even if this court isn't going to look at all to parental intent the fact that the court didn't follow article three of the hague convention which says that the children habitual residence will be the place that they are living immediately preceding the wrongful retainment that in and of itself i think is enough to show that the determinate determination that the bitch will residents was astray is incorrect the children were living in may of two thousand and thirteen in the united states and had been in the united states for fifteen months well over a period of a year and that argument you made yes children i think you have to consider the children collectively despite the fact that they are at different places mentally to determine what they think home is but i think the case together petition was for return of all three children together not returning our separateness arguments made to each child which i think there could be you're the appellant so you you frame the issues that there are any when you want but i would think  case like this you could you could view them separately but you haven't framed the appeal that well how does that work and we just have a curiosity how does it work when you have three children of three different ages and you view them collectively well i would think i think that the best way to look at it is the harm provided the harm to the children and separating them i think is is great and i think that therefore you need to look at probably the youngest two children because they're the ones that were going to be individually hurt the most by being uprooted and relocated even though the third child potentially he was very young you could argue that he could adapt  i think the other two children's needs and their need to stay together outweighs that but is that is that a factor of on a vigil i'm sorry what was the phrase the vigil resident yeah is that factor i don't believe because in most cases that have been looked at there was typically only one trial this case is different in that there are three children that are of different ages although they're all young but they are of different ages a four month old versus a five year old has a much different capacity for understanding in determining what they believe to be home to be and then you also have this issue where for the first time at least before this court you do have a child that suffers from severe autism who's devout that go into the determination of a habitual environment i think it goes into the argument of yes it does because it into terminating this court previously held in freidrich that you need to look at whether or not a child can whether or not child is acclimated to their new surroundings their new country and developed a degree of well settled purpose a four month old who stays in the united states for fifteen months of their nineteen month life is going to have acclimated to the united states and believe that to be home they only spend four months and much of which they're not going to be able to recall in australia in particular for the child that was developmentally disabled because of autism  his ability to comprehend what home was would have been very limited when he got here because of the therapy that he received in the programs he was involved in from the time he arrived during that fifteen months his ability  determine what was home would have increased substantially during that time so i think it does matter ok so how does that translate into three children do you send them home if the oldest has a good bitch will environment in australia i mean i don't understand i think that the oldest child i think there's an argument that the chal the oldest child also acclimated he was only five when he arrived his only formal schooling was in the united  states he started kindergarten shortly after he arrived so he also had been in the united states for fifteen months when the alleged wrongful retain occurred so fifteen months of the life of a five year old particularly if that's an entire year of school is also a significant amount of time for him to have acclimatised as well at that point time he had become a resident a vigil resident of the united states he was no longer a resident of australia at some point in the past he how did the trial judge deal with the fact that they had all been living in the states for a year before the wrongful detention i don't believe she addressed it at all i believe that the error in this case was that she was looking at where the children had lived prior to when they came to the united states she didn't look at in may of two thousand and thirteen where were these kids living and how long had they been there i think she completely overlooked that which goes against the wording of the hague convention that you need to consider where the children were hubby tool residence of at the time of the alleged wrongful retain it but also in friedrich that case law says you need to look at where the children were a bitch will residents at the time of wrongful retain meant if they alternate between two nations which in this case they had you need to look at whether or not they had acclimated to the new nation and a passage of time in geography can equate to a child acclimating and i think that's determinations and reached the correct conclusions not telling challenges of credibility determinations of factual findings including the factual finding of the children's hospital residence but upon is not shown clear or abuse of discretion by the trial court and it had a parents other than a comment in a footnote focused as this court of directed on the how the children had become acclimated whether they had a degree of social purpose from their perspective in the court accepted all of the evidence from appellant and her friends and family that provided testimony on that issue the problem was they didn't present testimony focusing on that period of time between the hero twenty twelve or so period when the family left australia and came to the us and then when the wrongful retention occurred with a b march april may twenty thirty in multiple points in the actual hearing the court stopped the testimony and inquired and said it appears that you're focusing on the defense of well settled and you're presenting evidence of what the kids are doing now what their life's are now being june july twenty fourth when are you trying to give me evidence of what happened between twenty twelve and twenty thirteen we explain what the kids lives were like in australia right why they were pitching residents of australia ok they were involved in many many different things in response to that appellant here trying to present evidence of earliest apparently intended to present evidence of why the habitual residence shifted so why the passage of time made from the kid's point of view the us their new addition residence right but she didn't actually explain she provided very little evidence of the kids perspective in the time prior to the wrongful retention i mean this criticism of the evidence that is relevant is what happened prior from the child so you're saying that she presented evidence as of the day of trial not as of may two thousand and thirteen yes exactly ok in the end it wasn't the same evidence it didn't include anything that happened in that year or anything and it included very little but there was no specificity of when things happened so the testimony just said while the kids are the kids are in school and they see family and they do this and that but it was never made clear to the trial court is that now or is that in the time period that i can actually consider prior to the wrongful return and it was that something that was called to counsel's attention it was it was clear called attention in the record in our brief we cite to that the actual testimony from the court saying i'm unclear are you going to the well settled defense which was the judge don't think applies here or are you trying to find evidence of a bitch or residence or something else and rather than clarifying and saying something of the effect of yes it's a bitch or residence this is the time frame the response was i'm sorry i'll move on which case apparently presume that it really was evidence of well settled and was evidence effect of as of the date of trial not the date of mitchell residence to allow for this determination so all the court had to consider was the all of the evidence that mr presented of you know again how do you how do you ignore that as a judge how do you ignore that you have a child who came to the states at four months old who's now been in the states for you know three quarters of the child's life i mean how do you ignore that how do you possibly say that the vigil in volume is ilsley or i don't think the court complete ignored that the court pointed out that the agreement was there was and not so much with the youngest child because there truly was very little evidence of the little child of the youngest because from a child of four months or one year the perspective would just be the family environment and what they are if the kids in a the baby's in a house in australia or in a house in the united states is there really any degree of subtle purpose to think was the reason for the court's footnote and robert i think you're agreeing that it goes by parental intent you agree that i'm just saying that that is a situation where perhaps it is permissible in the court was right when it said this may be a situation where we have to look at print on tat because a child might not a child that young age may not lack the cognizance of its surroundings to determine whether it is acclimated to a new environment if all the kids a father baby sees is what do you do about a kid who is in autism treatment that i mean that that from what i know about kids with autism i mean you know that becomes a pretty central part of that kid's life whatever facility or whatever sort of supportive environment he's in how do you say that isn't part of the big environment of the firm for one point part of that has developed because of the wrongful retention well no you mean that would be the case if somebody if she just took them but he's he was in the states for a year before it any of this happened when he was he was diagnosed with autism in australia they came back to the united states on the ns trip and then at some point and i don't believe was ever entered into the record when the further diagnosis was made and when testimony when any treatment began so it's unclear from the record if the middle child was in this treatment for one month two months it's just not there's also no reason that the child can't be taken back to his residence in australia and be put into the same type of autism support environment there it's a different question i mean that that goes to what's best for the child not what the child to be too will environment but in that case the christian or just go to whether there is this settled degree of purpose and and there was no testimony that said just to move did did the judge give any significance or weight or anything to the fact that the children had lived here for a year before the wrongful detention yes the court did weigh the factors in the submission residence determination and said the only evidence however of the united states was they were in some schooling for some personal a part of a year so they read a few months of schooling and they spent time with their immediate family so if we're looking at all the factors set forth by this court such as participation in social engagements ports other meaningful connections with people or places in the u s only evidence that came out was they were in preschool or another school for some part of the year and that they had a relationship with their nearby family that's it versus all of the evidence of life in australia which the court also weighed in said all of these elements were satisfied their social connections their participation in sports there were connections with not just family but family friends pictures are introduced to the children interacting with friends and while the children were in the us they remained in contact with their australian family so there was no hard break with that just because you're here in the us you're cut off from your family and friends in australia the family remain in contact via skype with their family in australia at least until around  the time of the wrongful retention so there it was truly weighing in there is no break line that says if you come to the us if you bring children in the us for x number of months that's it you're a bitch a resident says change the truly is highly fact intensive analysis in the court listened to all the evidence and just found that based on everything that's presented the connections the children's connections were with australia and in the time they spend the us there just weren't enough new connections to create this the climate is asian to make the children feel that yes we've truly become to the us we're now going to stay here we've broken our relationship with australia that's no longer her beautiful residence and it isn't truly habitual residence is a term of art it's not just your current geographical location or where you looking at all of these factors is this court is explained in this murder is this sort of retention issue that upon brought up it is a bit of a unique issue the jenkins you jenkins seems to be the only case where this sort of preliminary burden was was discussed in it appears that in the u s supreme court's more recent guidance and abbott the sort of foundation for the jenkins description of this retention no longer should apply because the court in june can seem to look at this right of joint custody and said ok you both had a right to determine where the child lived at this point in time one of you went back to israel when if you stayed here you both had a joint right to the joint custody situation we are well aware that our approach requires a parent in the event of a separation or custody dispute to seek permission from the other parent or from the courts before taking a child out of the country if it's habitual residence so here just as a wrongful removal under frederick could be found if upon a taking the children out of a straight without asking for wrongful retention occurred here when appellant denied mr penton there is his request of the children reunited with him in australia which was the court found to be there had been a residence so they can sort of have this dual first they relied on retention and then additional residence additional residence might have been the right finding it was in result was the same but jenkins is the only court that set out this initial step of finding a retention which really under the convention is just defined as the removal or retention without any real definition is considered wrong for when in the breach of custody rights etc etc etc so this that they think it's analysis just  and beyond talking about a beautiful residence the issues of this retention also from the children's point of view the children did come at least the oldest son did come to the u s for three months several years ago there is testimony internet and i can to you the way i'm sorry the eldest child travelled here previously for a three month period when appellants father passed away so telling came here for a month and mr banta laris and his son stayed here for three months in that case three months no one has made any allegation of that change his residence even though he was around his family in the us for three months so now it appears we're arguing out a period of time between three months and a year or so where is that line and again there's no brake line it's just looking at all of the factors and also in this case we know that the family was here as a whole first they started in hawaii were there for about a month came to the ohio area were here from approximate april through december with the family automatically wins i mean at what point does it become your new environment no you're not because i think that would be a subjective intent if there were an agreement for one or for here we're going poorly on the facts no no but let's say that's the intent they all agree they're going to go back after four years and then he says it's four years are up let's go and she says no and she wrongfully says i'm not going to do what i promised to do do they still go that is that still there him and i would think after four years you you look at the facts you look at whether they became a climatized of the u s and perhaps after four years they're true publisher residents had changed subject of a ten didn't matter if they intended one year for but on the facts of that case if everybody were here for four years it very mellow excuse me very well might be that from the children's perspective yet we've been here for years this is our home now and we just don't have that in this case they were here for a shorter period of time and part of that time from december and twelve until the wrongful retention they were keeping their dad was on the other side of the planet they were keeping in touch with him over skype they knew he wasn't around so i don't know how they would feel settled when they're not living there with their family in some mr pencillers just want to give us kids something an experience he had as a child an extended holiday in another country to experience their culture and here to visit with family never anticipated that his desire to be a good father be used against him as a way for his wife to keep their children the u s with her and her new romantic partner that she found while living here in a conclusion other than that reached by the district court would simply eviscerate the wrongful retention provisions of the hague convention and provide the means for a parent to steal away his or her children from the other parent without recourse to the convention by proposing a vacation of an extended length in another country that just can be the law in the district court's judgment should be  opposing counsel indicated that the respondent simply failed to present enough evidence or any evidence of what happened with the children's lives from march of two thousand and twelve when they came to the united states and may of two thousand and thirteen the date of the alleged wrongful retainment that is simply not the case first of all you would like used to be aware that this was a five hour hearing which is a very limited amount of time to be able to present testimony exhibits and other evidence on such an important issue are you to object to that in the case or filed a motion requesting additional time which was denied by the required i mean if you're if you are going to argue that the trial court wrongfully excluded evidence or wrongfully refused to consider evidence we have to know what the evidence would have been t understand what you're saying i think my argument is that she allowed us five hours and the petitioner presented first which meant that we had whatever time was left of that five hours not knowing how much we could actually get in during that time there was no opportunity to go any longer than five hours so during the hearing consummate are constantly watching the clock to try to determine you know how much time are we going to have to get this in front of the judge today regardless of how much was presented during that time though there was a sufficient amount of evidence i mean i just you know i'm looking at your brief the statement of issues presented for review there are four issues presented there and i don't see that the issue on appeal that i'm asked to rule on today that the trial judge abused her discretion by limiting you to a five hour here i mentioned it under the door you mention that we decide issues if you wish to get a ruling from us you have to specify what issues you want to rule and i don't i don't see it is it here or not is an issue no ok i get all that it's waived ok well at least they please that's my position if you want to cite me authority the opposite be willing to consider it ok what i what i think is more important is that between march of two thousand and twelve and may of two thousand and thirteen the testimony before the court was sufficient not just sufficient but was extensive enough for the court to determine that the children had acclimated to a new country and that they had become well settled from their perspective  and robert b tests in the court looked to the car cannon case out of the third district and looked at the things the court should consider and determining if a child has become acclimatized and those things included primarily the children's schooling the social participation in sports programs and excursion meaningful connections with people places in the child's new country and also the amount of personal belongings brought there was significant amount of testimony both elicited through the petitioner in cross examination as well as from the respondent in all the other witness says that the children only the children's only formal schooling occurred in the united states there was testimony that the child's the oldest child started kindergarten and had completed an entire year of kindergarten during the fifteen months that he was here in addition the middle child started preschool completed a full year the four month old had been enrolled in a daycare and had been in that daycare the entire fifteen months that she was here resident that she is limited to the period prior to the wrongful i believe that is i believe that is correct but i believe that with the testimony that she would not listen to was testimony that said in particular regarding the child that was artist autistic that a plan had been developed through the heart the how department of education that was an ongoing plan and i believe my client was trying to explain that he had started here he was diagnosed and he started hearing this plan and this is everything that he had done and that the important part of the plan was that there was ongoing treatment and certain steps that he was to meet and i think she was trying to explain how he had come so far in going through that plant that was initially developed when he got there and i believe that that was what she was determining was in in in unmissable but there wasn't really a point in time where she could have said as of may of two thousand and thirteen this is how well he had progressed because it's the progression of the children was of the child was on a kind of a continuum i believe in terms of that that that needed to be considered that this planet been developed and that the important part of it was that there was a progression and that he maintained consistency because that was necessary for an artistic child consistency with teachers therapies and therapist was was what she was trying to see was so important and why that fifteen months meant so much to this particular child