on the custody proceeding the last i heard is it is that had stalled because of some requirements at least according to mr lee mrs testimony of of a twenty thousand dollars or fifty thousand peso i don't know if you can call it a bond or what the right term would be under mexican law but my understands it is a has stalled and to my knowledge nothing nothing further as has happened miscellaneous is before this court today because the district court failed to recognize the grave risk physical and psychological abuse the child faced presented by the apple e's sustained pattern of domestic abuse and propensity towards violence and what standard of review do we apply to that these these areas that we're talking about here today are our legal errors and they should be reviewed to nobody in region is holding a district court made two legal errors first the district court applied an improper objective evidence standard there were acquired mr lima's to present a particular type of evidence that she was not required to present second the district court also imposed a heightened standard requiring evidence that the child himself had been physically abused along that line and what if any weight can we give the explanation by the district judge in denying a stay in which he said he considered all the evidence the fact that the child had not been abused just one item but especially on i think of what that the district judge said was that he did consider the evidence of the testimony of that of the children but that without without the more pertinent issue was a beaut physical abuse to the child's self and without abused or neglected the child himself as in walsh and as in van de sand it appears that the district judge may have been unduly influenced by this notion that there needed to be physical abuse to the child in order to find a grave risk and at a minimum that he underestimated the risks posed to children being around domestic abuse he seemed to unrebutted though that the child testified that he enjoyed time with his father that implied lee would suggest the fact of finding that he made between the two warring parents at the there was no specific finding about  whether the child had a fear of his father there was testimony that when his parents fought the child was afraid asked later on in cross examination there was there was a question about whether or not the child smiled at his father and whether or not the child enjoyed hanging out with his father that particular line of questioning went to whether or not the child was mature enough for the mature tile defense but there was no specific finding that that the child had no fear of his father it is your the thrust of your argument is grave risk because violence by spousal abuse could also under the law mean risk to child or is your argument grave risk to child because psychological abuse was shown here and never found against by the district court but i think it's both which is which do you think was more convincing as to your is that in this situation i think  for sure the sustained decade and a half pattern of domestic abuse that led not only to our client being being attacked and abused but led to one of his other children being attacked led to multiple family members being attacked demonstrating that there is he has violence knows no bounds whether it's men or women adults or children that sort of propensity towards violence absolutely demonstrates a grave risk of harm to a child objective evidence well the i think what's most important is the district court doesn't seem to up apply is there earlier and i want to my question i asked you how do you define objective evidence i think in this case based on what napoli argued in their closing briefs at the to the trial court most likely objective evidence meant something akin to collaborating evidence beyond the testimony of ms lee miss and and the apathy but that would be then he would have been correct right he has to disagree statements from witnesses husband wife both saying it's my personal opinion disagree and he says well neither one is objective and therefore you lose because the burden of proof is on you to show the risk to the child  father strike his mother so what case do you have any case under this convention that says spousal abuse requires a finding of risk to the child because the child happened to witness the abuse i don't think just a really difficult credibility call one spouse and other spouse as to violence among them no one testifying the children this child and her child gets on the stance is no at most i saw them fighting for their violence or his violence to her that's hard for me to say you've met your burden was a clear and convincing evidence it's very scary to child there are four other circuits that are found that that sort of evidence absolutely can lead to a finding of good b s but doesn't have to be certainly and i don't think we're trying to argue that it has to be under all circumstances we're arguing that it is possible all right you would you wouldn't you wouldn't be able to show clear and convincing you would be able to show clear air if this were just a fact specific finding as as to risk to the child you have to should establish that there was a legal error correct correct ok and we think there is a legal error here first in that we were required to put forth objective evidence which is something that there is nothing under the hague convention or any other circuit that i've found that requires objective evidence getting back to judge barksdale is question and what does objective evidence mean that i believe that it means something akin to corroboration beyond the testimony of the two of the two parents however in this case there was evidence cooperating testimony or corroborating evidence beyond the two parents in the form of the two children testifying and our client's sister testifying leaders have tried to argue that objective evidence is some sort of credibility determination or that objective evidence means unbiased and it cannot be the case that that  testimony from a victim can never be sufficient to find a finding of grave risk of harm to a child this a big if your critical threshold position is there's legal error which because he number he divides findings of fact illegal or what paragraph in his legal findings is the one that's erroneous because the objective evidence i think if i remember he talked it into fact finding correctly where is the statement of law that's wrong in the portion that he says is legal fine well the he doesn't state that in under the doesn't in any way disavow or so we're inferring these legal errors well i think they as to the objective evidence error there is what i believe that argued is that this somehow that statement in the briefing paragraph seventeen somehow means that it was unfair that it was biased testimony and that amounts to a credibility finding there is no credibility finding in in in the findings of facts instead what the judge says is you have each provided your touch your conflicting testimony and there is no other objective evidence so you haven't made you haven't met your burden i thought he made a finding of fact that i'm quoting my own notes that he did that the father did not provide i'm sorry your client did not provide any evidence that the father abused her nick the neglect of the child himself so reading reading from paragraph seventeen is not a fight isn't that pretty with the found no i would disagree with that with that with that characterization our client testified and then what the apple eat essentially denied those allegations he then goes on to say that because neither side is able to provide objective evidence respondents allegations of abuse fail to rise to the level of clear and convincing evidence of a grave risk this this unknown objective evidence standard is where the error is it cannot be the case that her testimony alone because there is nothing else to go along with that no other corroborating evidence cannot be enough to find grave risk on its own testimony of a victim who was who was mugged no other witnesses around it cannot be the case that a jury would not or a fact finder would not be able to convict somebody simply because there is no other corroborating quote unquote objective evidence to go along with that person's testimony and we believe that that's what the judge required here in addition at appleby's of argued that objective means unbiased again it cannot be the case that all testimony must be wholly unbiased in order to be found  where to find a grave risk finding it obviously follows that biased testimony could be incredible but it does not follow that some semblance of bias amounts to all testimony  chase and even assuming the district judge should not have used the word objective how have you how has your client shown by clear and convincing evidence not a preponderance clear and convincing evidence between preponderance and beyond a reasonable doubt that there is a grave risk of harm to this child i think our client provided a great deal of testimony as to the abuse that she endured throughout the decade and a half that she was with  in addition her middle daughter testified to herself being attacked by their father on a in an incident that involved our client being attacked as well the child himself at issue in this appeal has testified that he saw his father strike his mother all of this we believe is sufficient to find a grave risk but you've got to show by clear and you know and i would argue that it is a clear and convincing evidence clear conviction without doesn't feel the truth of the perfect that could lead other courts to making similar improper holdings under these objective evidence standards or this idea that there must be actual physical abuse to the child in order to find a grave risk of one of those cases you cite which is the closest where the unconscionable abuse to the spouse necessarily implies violence to the child even if the child has testimony that the child wants to spend time with the dad plays  dad wants to split time with the parents which of the which of the spousal violence cases is the most analogous to this case where the risk would have to extend to the child i believe that the most analogous cases the wall client but we just know that he said he's filed for divorce we don't know what the up to date is and how far those have gone in this case the district court affirmatively found that appellant failed to prove by clear and convincing evidence that there was a grave risk of harm to the child we believe that the correct view of this is going to be clear error because that rests entirely on what is clearly a credibility finding by the court rule fifty two would require some specificity other than just announcing the legal standard correct we would have to vacate remained for the court to give us facts if the court didn't add anything and say because i find the woman not credible we disagree  basically if the district judge just says i don't think they met their burden period we would assess that for clear air we believe the bit based on what the district court said and we i know the crux of this issue is paragraph seventeen of the finding based on that this court is permitted to make implicit findings based on what the district court said as long as that supported by both the evidence and the ruling that the district court made so when we were view this week that's the finding quote for me the finding in paragraph seventeen that answers any of these questions such as i don't find that the spousal violence extends to the child who are i don't find this boy had any psychological injury that imply abuse is there any finding of any of those natures here the paragraph seventeen is a finding of that actually quote me the best finding that applies to the facts beyond the standard of law me what he found the best out of finding that he it that he administered is that there was no finding of abuse of the child which is the more pertinent issue and we discussed earlier that there is also the state ordered that the court did clarify that he distinguish and said this evidence was brought i considered all of it and i find that there was no finding of physical abuse of the child nor grave risk of harm to the what we're doing here honors is analyzing the record as a whole and looking at everything that the court has given us including any anything that the district court would have said on the record anything the district court administers after to look to see what the what the it thought process based on what we do have from the court we can see very clearly if you look at paragraph seventeen exactly what the court was thinking it's very clear this is an attempt to just money what are otherwise clear waters that you had withdrawn the money w cites the legal standard i understand then it contained in that same paragraph is this very odd term objective i'm not sure what he meant by that or what type of evidence he wanted to see based on well there are court cases that have made this analysis they usually don't use the word objective but they do say independent evidence and those are found in district court cases within the fifth circuit and the types of evidence objective evidence that we look at typically are things like photographs well according to the evidence demonstrative evidence certainly expert testimony we just have witness testimony which can be objective or less subjective there's no problem with receiving it that way absolutely ok so where does that get implying he wasn't objective but he was when i'm still in appears from paragraph seventeen that he's actually finding that he doesn't know that anybody's credible sufficiently to to make up for this lack of objective evidence because he says we've got one side in another that that are in conflict and then absent any objective evidence from either party i don't know whether it who's telling the truth and that means that in the clear and convincing evidence burden has not the attempt to separate the objective evidence and the credibility evidence or credibility finding the problem is that those two are not synonymous objectivity and credibility but they're not mutually exclusive either so the reading is that we've got someone who needs objective evidence something that lacks bias something to overcome what is otherwise a win is that lacks credibility implicitly and i know that we had some discussion of the walsh case in particular and that's a case in the first circuit and it was cited later again in another case by the first circuit maois wherein the court distinguished walsh from that case by saying the difference here is that we don't have a finding an affirmative finding that these things occur so to make an analysis of whether spousal abuse constitutes grave risk of harm to the child or the way in which it might constitute grave risk harm to a child is going to be resting primarily and necessarily on whether that spousal abuse first even occurred as alleged here absent a finding that it did by you what would explain it but in saying this is one of many inconsistency is that we see it with throughout the record when we look at all the palin's evidence we're looking at a series of things that even a one individual witness her own testimony has an inconsistency is within it's impossible to say that everything she said is true because there are so many different things that are mutually exclusive and we would argue that's exactly the same thing that happened here believe she answered the question and it's plausible in a lot of the record that what the court district court believes that to be is some kind of interest that inconsistency one of several here the only question is before this court whether there was clear air committed in this finding by the trial court that there was not clear and convincing evidence of spousal abuse in the first place and certainly not sufficient enough to meet the high standard for grave risk of harm to a child because the question is grave risk of harm to the child and there is no spousal abuse exception that this rule over looking is how that spousal abuse affected the child in question and then the court ruled that there was no objective evidence of abuse the child there was no evident evidence whatsoever of abuse to the child including psychological harm so what we're looking at here is some a court that correctly applied the correct standard and when applied it mr thank you and here i was just a few quick clarifying points and i want to make sure that we are making it clear that we think that the error here is obviously that the court reached its conclusion that that our client did not meet its burden however in good it's how the court got to the conclusion that appeared as the problem it got there because it required this idea that there had to be something besides just the testimony of the two parents that's wrong because it's first of all it's not true there was more than just the testimony of the two parents and second of all it even if there were other testimony or other evidence it should not be the case that the testimony of a single of the two parents cannot the two a  finding of great harm the other way that the district court got into the wrong legal clues and was in this being unduly influenced by this notion that without the more pertinent issue of physical abuse to the child being present without more than that as was stated in order denying the stay that there cannot be a finding a grave risk at a minimum i think it needs to be made clear that that that can happen  he did assault their middle daughter i would say that all of this testimony is being done through a translator and i think when you read the transcript as a whole it's apparent that there were difficulties with that translator time with the translations at and if that were the case that the findings of fact inclusions of law should have stated so stated that you haven't met your burden because the evidence as presented through translator wasn't credible or whatever the issue may be but instead what the findings of fact tell us