                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-22-2007

Yang v. Tsui
Precedential or Non-Precedential: Precedential

Docket No. 06-3962




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                                             PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                       No. 06-3962


                     TSAI-YI YANG
                           v.
                    FU-CHIANG TSUI,

                             Appellant


      On Appeal from the United States District Court
          for the Western District of Pennsylvania
                   (D.C. No. 03-cv-01613)
      District Judge: Honorable Thomas M. Hardiman


        Submitted Under Third Circuit LAR 34.1(a)
                     May 16, 2007

 Before: FISHER, NYGAARD and ROTH, Circuit Judges.

                  (Filed: August 22, 2007)

Andrew D. Glasgow
AAI Law Firm
239 Fourth Avenue
Investment Building, Suite 1207
Pittsburgh, PA 15222
       Attorney for Appellant

Walter A. Angelini
Angelini & Angelini
3067 Pennsylvania Avenue
Weirton, WV 26062
      Attorney for Appellee



                  OPINION OF THE COURT


FISHER, Circuit Judge.

       Fu-Chiang Tsui (“Tsui”) appeals the District Court’s
grant of the Child Return Petition (“Petition”) filed by Tsai-Yi
Yang (“Yang”) pursuant to the Hague Convention on the Civil
Aspects of International Child Abduction (“Hague
Convention”), Oct. 25, 1980, T.I.A.S. No. 11,670, 19 I.L.M.
1501.1 Tsui claims that the District Court erred in its
determinations that Tsui wrongfully retained Raeann Tsui
(“Raeann” or “the child”) and that Raeann should be returned to
Canada despite the “wishes of the child” exception. We
disagree, and for the reasons that follow, will affirm the District
Court’s judgment.


       1
      The implementing statute is the International Child
Abduction Remedies Act (“ICARA”), 42 U.S.C. 11601, et. seq.

                                2
                               I.

       Although Yang and Tsui have known each other since
they were children in Taiwan, our focus is on the events that
occurred after they both moved to Pittsburgh. Tsui attended the
University of Pittsburgh and earned a Ph.D. in Electrical
Engineering in 1997. Yang arrived in Pittsburgh in 1994, a few
years after Tsui. She also attended the University of Pittsburgh
where she earned a Master’s of Science in Information Science
in 1995.

       Tsui was married and had a child around the time of
Yang’s arrival in Pittsburgh. However, a romance ensued
between him and Yang in 1995, and Yang became pregnant.
Tsui and his mother invited Yang to move in with their family,
which included Tsui’s wife and child. Yang accepted the offer
and moved in with the family sometime before she gave birth in
1996.2

       Yang gave birth to Raeann on June 11, 1996, in
Pittsburgh.3 Yang and Raeann lived with Tsui and his family
until December 1996. At that time, Tsui, Yang and Raeann
went to Taiwan. Tsui only stayed for two weeks, but Yang and
Raeann remained for five or six months. Yang and Raeann then
returned to Pittsburgh where they lived with Tsui and his



       2
        The parties disagree on what month Yang moved in, but
the disagreement does not impact our analysis in this case.
       3
        Raeann is a United States citizen.

                               3
mother.4 In August 1997, Yang and Raeann traveled to Taiwan
for a funeral and because Yang’s visa was about to expire.
Although Yang did not initially intend to move to Taiwan at that
time, she and Raeann remained there for four years.

        Yang wanted to maintain the relationship with Tsui by
telephone and although they spoke once a month, he did not
want to continue the relationship. Raeann was too young to
communicate with Tsui by telephone. Tsui also traveled to
Taiwan on several occasions. However, despite knowing where
Yang and Raeann resided, he did not visit them. Yang claims
that he also provided no financial support for Raeann during this
time period. However, Tsui claims to have given Yang
approximately $6,000 while she and Raeann were in Taiwan.

       In 2000, Yang decided to immigrate to Canada with
Raeann. Yang was unable to return to the United States and she
believed that the clean air in Canada would help a skin condition
that Raeann had developed. Tsui claims, however, that Yang
actually was trying to move closer to him.

       In July 2000, Yang went to Canada for several days in
order to activate her visa, but then returned to Taiwan to prepare
for the move. Yang and Raeann moved to Surrey, British
Columbia. Yang was unable to find a job in her field, but she
obtained a part-time position at McDonald’s. Although Yang
provided primary care for Raeann, she had some assistance from


       4
       Tsui’s wife had returned to Taiwan after a disagreement
with Tsui.

                                4
friends and neighbors. She enrolled Raeann in kindergarten in
September 2001.

       Additionally, at Yang’s request, Tsui started providing
financial support for Raeann. He gave Yang approximately
$6,000, a computer, and other gifts. Yang and Tsui maintained
contact by telephone and email on at least a monthly basis.
Although Tsui and Raeann’s contact remained limited, he gave
Yang a digital camera to enable her to send him pictures of
Raeann.

       Yang became ill in August 2001, and was diagnosed with
malignant thymoma in September 2002. The tumor was in her
chest and caused Yang to suffer from myasthenia gravis, a
condition which resulted in muscle weakness in her chest and
neck. Additionally, the tumor caused her difficulty in speaking
and swallowing. Yang’s doctor explained that the tumor had to
be removed, which would require major surgery. The doctor
anticipated that she would be hospitalized for seven to ten days,
and that Yang would be unable to work during the two to three
month recovery period.

       Yang turned to Tsui for help with Raeann during the
surgery and recovery period. In an email dated October 9, 2002,
Yang told Tsui: “[i]t would be better if you can pick up and
take care of Raeann. I can’t work for at least two and a half
months . . . if anything happens to me, at least you can still raise
Raeann.” Although at first resistant to have Raeann move in




                                 5
with his family,5 Tsui finally agreed to come to Surrey and bring
Raeann with him to Pittsburgh. As Tsui was picking Raeann up
in mid-October, he recommended having her remain in
Pittsburgh until the end of the school term. Yang agreed, but
when doing so she did not know that the school term in
Pittsburgh did not end until late January.

        The same day that Yang entered the hospital, October 23,
2002, she sent Tsui an email. The email explained the she
packed up Raeann’s belongings in three bags. The bags
included winter clothes, summer clothes, shoes, and toys. She
also stated that some of the items may be unnecessary. The
email contained the following postscript: “Raeann doesn’t like
long sleeves.” Tsui arrived in Canada on October 26, 2002, and
Yang’s friend who had been watching Raeann met him at the
airport. The friend took Tsui and Raeann to see Yang at the
hospital where she was recovering from her surgery which took
place on October 24, 2002.6 Yang gave Tsui documentation to
enable him to register Raeann in school and to travel with him
to the United States. Tsui maintains that there was no
agreement that Raeann would stay with him for a set period of
time. He claims that there was no limit on how long Raeann
would remain in Pittsburgh, but rather the agreement was that
Raeann would remain in Pittsburgh until Yang fully recovered.
It is undisputed that the parties agreed that Raeann would reside



       5
        At this point, Tsui had reconciled with his wife, and they
resided in Pittsburgh with their two sons.
       6
        Raeann had not seen her father since August 1997.

                                6
permanently with Tsui if Yang died.7 Tsui and Raeann traveled
to Pittsburgh on October 27, 2002, and Tsui gave Yang $1,000
before he left.

       After Yang was discharged from the hospital on
November 2, 2002, she spoke to Raeann daily by telephone.
However, Tsui’s wife felt that daily telephone calls were
burdensome to their family and thus Tsui limited the calls to
every other night. According to Yang, Raeann was homesick
and wanted to return to Canada. Yang told Tsui to bring Raeann
back to Canada and even offered to come to Pittsburgh to get
her. She threatened legal action if he refused. Tsui claims,
however, that Yang did not request that he return Raeann until
April 2003, when he received a letter from Yang’s attorney,
Andrew Sandilands (“Sandilands”).

        On November 20, 2002, Yang intended to travel to
Pittsburgh to bring Raeann back. She was unable to make the
trip, however, because she had difficulty breathing and went to
the emergency room. Apparently, Yang’s medical problems
remained and she was admitted to the Intensive Care Unit
(“ICU”) on November 22, 2002. She was in the ICU for one
week, and remained in the hospital until December 28, 2002.
Although Yang was unable to speak, others contacted Tsui on
her behalf. A social worker at the hospital spoke to Tsui who

      7
         Tsui admits that Yang expected to recover fully within
two or three months. However, he claims, based in part on his
knowledge of the condition because of his work in the medical
field, that he knew Yang’s condition was serious and that the
recovery would be longer than Yang expected.

                              7
indicated that he would bring Raeann to Canada if Yang’s
condition worsened. Tsui also told Yang’s brother and her
friend that he would bring Raeann back in December.

       On December 2, 2002, Yang was able to speak, although
with great difficulty. On that day, she spoke with Tsui as she
was worried that he did not intend to return Raeann. Tsui
assured Yang that he would return Raeann at the end of January
when the school term ended. Tsui then took Raeann on vacation
without informing Yang that they were going away, and she was
concerned when she could not reach them for several days.
However, Tsui did send Yang pictures of Raeann in the middle
of December.

       On December 17, 2002, the day before the pictures
arrived, a package addressed to Yang arrived at her friend’s
house. The package contained a “Complaint for Custody,” filed
in Pennsylvania state court on December 11, 2002. It also
included an “Order for Generations Education/Mediation
Seminar,” which is a service offered by the Court of Common
Pleas of Allegheny County for parents involved in custody
disputes. According to the Order, Yang was to attend a
mandatory seminar in Pittsburgh on January 4, 2003, and a
mediation session on February 11, 2003.

       Yang was unable to attend the seminar due to her health.
After her release from the hospital, she underwent twenty
sessions of radiation therapy. Although she contacted the
“Generations” office to explain that she would be unable to
attend the seminar, neither she nor her attorneys contacted the
Pennsylvania courts or appeared at the seminar or mediation.

                              8
According to Yang, after she spoke with the “Generations”
office, she believed that the proceedings were adjourned.
However, the proceedings were not adjourned and Tsui received
a court order on February 6, 2003, which granted him custody
of Raeann. The order included a proposed visitation schedule,
but Yang never agreed to the schedule.

        Yang hired Sandilands upon receipt of the Complaint for
Custody. On January 6, 2003, Sandilands sent a letter to Tsui
demanding Raeann’s immediate return. He also initiated
custody proceedings in Canada. The Canadian proceedings
consisted of five hearings and continued from January to
March 11, 2003. Yang attended every hearing, except for the
first one. Tsui appeared only through counsel, who represented
him at all of the hearings except for the first one. On March 25,
2003, the Supreme Court of British Columbia granted interim
custody of Raeann to Yang. Based on the decision, Sandilands
again sent a letter requesting that Tsui return Raeann. Tsui
claimed that this was the first formal request that he received to
return Raeann to Canada.

       In May 2003, as Raeann was still residing with Tsui,
Sandilands filed an application with the Canadian Attorney
General’s Office seeking to have Raeann returned under the
Hague Convention. Yang filed a petition under the Hague
Convention in the United States District Court for the Western
District of Pennsylvania on October 23, 2003. The District
Court initially abstained from exercising jurisdiction. The
decision was appealed and oral argument was held before this
Court in Philadelphia in September 2004. On appeal, this Court
reversed the District Court’s judgment and remanded the case

                                9
for further proceedings. Yang v. Tsui, 416 F.3d 199, 205 (3d
Cir. 2005) (“Yang I”). Yang traveled to the United States for the
oral argument, and this was the first time she had seen Raeann
since October 2002.8

        Yang returned to Pittsburgh in November 2005 and
sought a visitation schedule. As the parties could not reach an
agreement, Yang filed a motion requesting that the District
Court help establish a schedule. Yang was granted visitation
with Raeann three times a week for several hours. The visits
occurred at the District Court’s chambers during the week and
at an alternative location on the weekend.

       The District Court held a hearing on the merits at which
the parties and other witnesses testified. It also conducted an in
camera examination of Raeann. During the examination,
Raeann testified that she wanted to remain in Pittsburgh. The

       8
        While in the United States, Yang also attempted to see
Raeann at Tsui’s home and Raeann’s school. She even went to
the homes of some of Tsui’s neighbors in order to try to see
Raeann and to leave her gifts. At trial, Tsui claimed that Yang
left threatening message’s on the answering machine at his
home, and even followed his wife’s car. Tsui sought and
obtained a Protection From Abuse Order (“PFA”) from the
Court of Common Pleas of Allegheny County. The PFA, issued
on October 8, 2004, prohibited Yang from seeing or speaking
with Raeann without Tsui’s permission. Yang was served with
the PFA when she returned to Canada. Under the PFA, Yang’s
contact with Raeann was very limited, and she was eventually
allowed to talk to Raeann twice a week for a half-hour.

                               10
District Court issued a written Opinion and Order on August 25,
2006, in which it granted Yang’s Petition.

        In its Opinion, the District Court began its analysis by
determining that November 20, 2002, was the date of retention
in this case. This factual determination was based on the
parties’ testimony and Tsui’s admission that Yang demanded, in
mid-November, that Tsui return the child. The District Court
then turned to the issue of the child’s habitual residence.
Because Raeann was only five years old when she left Canada,
the District Court found that she was too young to possess an
intent regarding her habitual residence. Therefore, the District
Court turned its focus to the parents and whether they both
intended to make Pittsburgh Raeann’s home immediately prior
to November 20, 2002. The District Court held that the
overwhelming evidence in this case demonstrated that the
parties only intended for Raeann to stay with Tsui for two or
three months until Yang recovered. Tsui and Yang only
intended for Pittsburgh to become Raeann’s home if Yang
passed away because of her illness. Based on these facts, the
District Court determined that Canada was Raeann’s habitual
residence on November 20, 2002.

       The next factor for the District Court to consider was
Yang’s custody rights at the time of retention. As such a
determination is based on the custody laws of the country in
which the child resided at the time of removal, both parties
called expert witnesses to testify about the custody law of
British Columbia. The District Court held that under British
Columbia law Yang had custody of Raeann on November 20,
2002, because Raeann usually resided with Yang. The District

                              11
Court also found that Yang was exercising her custody rights at
the time of retention. Therefore, the District Court held that
Yang had satisfied her burden under the Hague Convention of
proving that the child was wrongfully retained.

       Based on its determination, the Hague Convention
required the District Court to order that Raeann be returned to
Yang unless an exception applied. As the burden to prove that
an exception applies was on Tsui, the District Court had to
determine whether he had met his burden of proving the
applicability of the “wishes of the child” exception.9 It believed
that any objection that Raeann had to returning to Canada was
based on Tsui’s wrongful retention. The District Court refused
to apply the exception because its application in such a situation
would frustrate the purpose of the Convention. The District
Court also explained that even if this was an appropriate case for
the exception, Tsui had not met his burden of proving that
Raeann was of sufficient age and maturity for her views to be
taken into account. Further, the Court found that Raeann’s
views has been formed by outside influence. Additionally, her
reasons for staying, which included comfortable living
conditions and friends, were not sufficient to satisfy the
requirements for the exception. Therefore, the District Court
concluded that even if the exception could apply to this case, the
requirements for its application were not met.




       9
         The District Court also determined that no other
exception applied. As Tsui does not appeal that determination,
it is unnecessary for us to address the other exceptions.

                               12
        As Tsui did not prove that an exception applied, the
District Court granted Yang’s Petition and ordered that Tsui
return Raeann to Yang by September 5, 2006. Tsui then filed
this timely appeal.

                               II.

        The District Court had jurisdiction pursuant to 28 U.S.C.
§ 1331 and 42 U.S.C. § 11603(a). We have jurisdiction over
this appeal pursuant to 28 U.S.C. § 1291. We review the
District Court’s factual findings for clear error, but our review
of its conclusions of law is plenary. See Whiting v. Krassner,
391 F.3d 540, 546 (3d Cir. 2004). We will not reverse the
District Court’s factual findings as long as its “account of the
evidence is ‘plausible in light of the record,’ even if convinced
that we ‘would have weighed the evidence differently.’”
Karkkainen v. Kovalchuk, 445 F.3d 280, 289 (3d Cir. 2006)
(quoting Anderson v. City of Bessemer, 470 U.S. 564, 574
(1985)).

                               III.

       The two main goals of the Hague Convention are “to
secure the prompt return of children wrongfully removed to or
retained in any Contracting State,” and “to ensure that rights of
custody and of access under the law of one Contracting State are
effectively respected in the other Contracting State.” Hague
Convention, art. 1.10 It is well settled that the Convention was

          10
            Both the United States and Canada are Contracting
States.

                               13
not designed to resolve international custody disputes. See, e.g.,
Karkkainen, 445 F.3d at 287. Rather, the Convention was
designed “to restore the status quo prior to any wrongful
removal or retention, and to deter parents from engaging in
international forum shopping in custody cases.” Id.

       A person claiming that a child has been wrongfully
removed to or retained in the United States can commence
judicial proceedings under the Convention by filing a petition
for the return of a child in a state or federal court which has
jurisdiction where the child is located. 42 U.S.C. § 11603(b).
In order for the petition to be granted, the petitioner must prove
by a preponderance of the evidence that the removal or retention
was wrongful. Article 3 of the Convention defines the removal
or retention of a child as wrongful when:

       a. it is in breach of rights of custody attributed to
       a person, an institution or any other body, either
       jointly or alone, under the law of the State in
       which the child was habitually resident
       immediately before the removal or retention; and

       b. at the time of removal or retention those rights
       were actually exercised, either jointly or alone, or
       would have been so exercised but for the removal
       or retention.

Hague Convention, art. 3. Further, “[a] petitioner cannot claim
that the removal or retention of a child is ‘wrongful’ under the
Hague Convention unless ‘the child to whom the petition relates
is “habitually resident” in a State signatory to the Convention

                                14
and has been removed to or retained in a different state.’”
Karkkainen, 445 F.3d at 287 (quoting Gitter v. Gitter, 396 F.3d
124, 130 (2d Cir. 2005)) (emphasis in Karkkainen).

       We have laid out four questions that must be answered in
a wrongful removal or retention case. Id. A court must
determine (1) when the removal or retention took place; (2) the
child’s habitual residence immediately prior to such removal or
retention; (3) whether the removal or retention breached the
petitioner’s custody rights under the law of the child’s habitual
residence; and (4) whether the petitioner was exercising his or
her custody rights at the time of removal or retention. Id.

       The determination by a court that a child was wrongfully
removed or retained does not automatically mean that the child
must be returned to his or her habitual residence. Rather, once
the petitioner has proven his or her case, “the burden shifts to
the respondent to prove an affirmative defense against the return
of the child to the country of habitual residence.” Id. at 288
(internal quotation marks and citation omitted).11 “These
affirmative defenses are narrowly construed to effectuate the
purposes of the Convention, and even where a defense applies,
the court has the discretion to order the child’s return.” Id.
(internal citations omitted).


       11
        In this case, as discussed below, Tsui argues the
“wishes of the child” exception applies to this case. Hague
Convention, art. 13. Therefore, Tsui’s burden is to show by a
preponderance of the evidence that this exception applies. See
42 U.S.C. § 11603(e)(2)(B).

                               15
        On appeal, Tsui claims that the District Court erred in its
determinations of the last three questions in the wrongful
removal or retention analysis.12 Specifically, Tsui claims that
the District Court incorrectly found Canada to be Raeann’s
habitual residence immediately before her retention, that Yang
had custody rights, and that she was exercising them at the time
of the retention. Tsui also claims that the District Court should
not have ordered Raeann’s return to Canada as he met his
burden for proving the “wishes of the child” exception, which
would enable Raeann to remain in the United States even if she
was wrongfully retained.

                                A.

       We first need to determine whether the District Court was
correct in its determination that Canada was Raeann’s habitual
residence immediately before the retention in this case. If we
hold that Canada was Raeann’s habitual residence on the date of
retention, we must then continue the analysis to determine
whether the retention was wrongful. Karkkainen, 445 F.3d at
291. But, if we hold that the United States was Raeann’s
habitual residence at that time, the analysis is complete as the

       12
          Tsui does not appeal the District Court’s determination
that November 20, 2002, was the date of wrongful retention.
This finding is supported by the record, as November 20, 2002,
is the first time that Yang demanded that Tsui return Raeann,
and we will not disturb it. See Karkkainen, 445 F.3d at 290
(explaining that the date of wrongful retention begins when the
child remains with the respondent against the petitioner’s clearly
communicated desire to have the child returned).

                                16
Hague Convention would not apply because her retention in the
United States would not be wrongful as defined by Article 3.
See id. Such a determination presents a mixed question of fact
and law. Id.

       As we have said on several occasions, such a
determination is fact-intensive and “‘necessarily varies with the
circumstances of each case.’” In re: Application of Ariel Adan,
437 F.3d 381, 392 (3d Cir. 2006) (quoting Whiting, 391 F.3d at
546). A case such as this, where the petitioning parent had
consented to let the child stay abroad for an undetermined
period of time, is especially fact-intensive. Mozes v. Mozes, 239
F.3d 1067, 1077-78 (9th Cir. 2001).

        We have defined habitual residence as “the place where
[the child] has been physically present for an amount of time
sufficient for acclimatization and which has a degree of settled
purpose from the child’s perspective.” Baxter v. Baxter, 423
F.3d 363, 369 (3d Cir. 2005) (internal quotation marks and
citations omitted). The inquiry focuses on the child, but also
must consider the “parents’ present, shared intentions regarding
their child’s presence [in a particular location].” Id. (internal
quotation marks and citations omitted); Karkkainen, 445 F.3d at
297 (explaining that courts must consider the parents’ present
shared intentions).

       On the date of retention Raeann was five years old. The
District Court found, under the facts of this case, that a five-
year-old is too young to have an intent regarding her habitual
residence. Although contrary to our finding in Whiting, where
we held that a four-year-old child is able to acclimate, it does

                               17
not change the propriety of the District Court’s finding as other
facts make this determination a correct one.

        The record indicates that Raeann had only been in
Pittsburgh for a few weeks when the wrongful retention
occurred. Additionally, there is no evidence in the record to
suggest that any special circumstances existed which would
enable her to acclimatize quickly. Cf. Karkkainen, 445 F.3d at
295. In fact, the only evidence in the record is that Raeann
missed Yang, wanted to return to Canada, and that she was
enrolled in school in Pittsburgh. Based on this evidence, it
cannot be said that Raeann became “firmly rooted in her new
surroundings” prior to the date of retention. Id. at 292 (internal
quotation marks and citation omitted). Furthermore, neither
party argues that Raeann had acclimatized to Pittsburgh at the
time of retention, but rather even Tsui agrees that Raeann did
not possess an intent regarding her habitual residence. As there
is no evidence of acclimatization, that Raeann abandoned
Canada as her habitual residence, or that there was a degree of
settled purpose from Raeann’s point of view, we find that from
Raeann’s perspective Pittsburgh did not become her habitual
residence prior to the date of retention. See generally
Karkkainen, 445 F.3d at 293-96. In other words, the record
would not support a finding that Raeann had been physically
present in the United States for an amount of time sufficient for
acclimatization and which had a degree of settled purpose from
her perspective. See Feder, 63 F.3d at 224.

       As the record does not reflect Raeann’s perspective on
her habitual residence, we must focus on the “parents’ present,
shared intentions.” Baxter, 423 F.3d at 369 (internal quotation

                               18
marks and citations omitted). We have said that there can be a
change in the habitual residence of a child when the parents
have a settled purpose in moving the child even for a limited
period of time. See, e.g., Feder, 63 F.3d at 223. In order for a
purpose to be settled there must be “a sufficient degree of
continuity.” Id. (internal quotation marks and citation omitted).
Additionally, a child’s prior habitual residence must be
effectively abandoned by the shared intent of the parents for her
to acquire a new habitual residence. See Mozes, 239 F.3d at
1082; Whiting, 391 F.3d at 550 (explaining that acquiring a new
habitual residence implicitly requires the abandonment of the
prior habitual residence).

        The District Court found that the agreement between the
parties was that Raeann would stay with Tsui only until Yang
recovered. It rejected Tsui’s argument that the parties intended
the stay to last until Yang fully recovered, which may have been
an extended period of time. Rather, the District Court found that
they anticipated that Yang would recover within two to three
months. The District Court’s finding is supported by the record.
First of all, Yang testified that she expected to recover within
two to three months. An email from Yang to Tsui reflected this
anticipation by saying that she would not be able to work for at
least two and a half months. Even though Tsui denied that there
was ever a conversation regarding the duration of Raeann’s stay
during direct examination, an affidavit he submitted in the
Canadian custody proceedings indicated that he was aware that
Yang expected to recover fully in a couple of months.13

       13
       In his Brief, Tsui states that his medical background
made him aware that Yang’s surgery and illness would require

                               19
Therefore, the District Court’s determination is plausible in light
of the record.

       The District Court’s finding also comports with the case
law. Even though the period was indefinite, it cannot be said
that the purpose of Raeann’s traveling to the United States
possessed “a sufficient degree of continuity to be properly
described as settled.” Feder, 63 F.3d at 223 (internal quotation
marks and citation omitted).14 Rather, the shared intent was that
Raeann would remain in the United States only as long as it took
Yang to recover, which was anticipated to be two to three
months. Additionally, there is no evidence that Yang and Tsui


a much longer period of recovery than she anticipated. This
knowledge, he claims, demonstrates that there was no shared
intent that the recovery would only take two to three months.
As there is nothing in the record that indicates he shared this
information with Yang, we find Tsui’s outside knowledge
irrelevant. The question is shared parental intent, and if Tsui did
not share this knowledge with Yang, by definition it offers no
insight into such shared intent.
       14
         Additionally, because Raeann was five years old when
she traveled to the United States to stay with Tsui, she was not
what we have categorized as a very young child. See Whiting,
391 F.3d at 550-51 (providing that a four-year-old unlike an
infant can acclimatize). Therefore, the fact that “shared parental
intent that a very young child will reside in a new country, even
for a limited period of time, is sufficient to establish the child’s
habitual residence in that country,” does not apply to the present
case. Karkkainen, 445 F.3d at 296.

                                20
intended for Raeann to abandon Canada as her habitual
residence. “[E]ven though the exact length of the stay was left
open to negotiation, the court is able to find no settled mutual
intent from which such abandonment can be inferred.” Mozes,
239 F.3d at 1082. The evidence simply does not demonstrate a
shared mutual intent to change Raeann’s habitual residence.

       It is undeniable that Canada was Raeann’s habitual
residence before she went to stay with Tsui in the United States.
As there was no shared mutual intent by the parents for Raeann
to abandon that prior residence, we agree with the District
Court’s determination that Canada was Raeann’s habitual
residence immediately before she was retained by Tsui on
November 20, 2002. Therefore, Yang met her burden of
proving Raeann’s habitual residence.

        Tsui’s arguments to the contrary are unpersuasive. First,
he claims that the facts do not support the District Court’s
finding. His claim is based in part on the fact that Yang packed
Raeann’s summer clothes for her trip to Pittsburgh. As
Raeann’s trip to Pittsburgh was during the winter, he claims that
this indicates that the intent was not limited to merely a two to
three month stay. The District Court dismissed the argument by
noting Yang’s email to Tsui explained that Raeann did not like
to wear long sleeves. On appeal, Tsui attacks the District
Court’s determination because the summer clothes included
shorts. However, Tsui ignores the fact that the email also stated
that some of the things that she packed were probably




                               21
unnecessary.15 Even if we agreed with Tsui that this evidence
could support his argument, we will not reverse the District
Court’s finding because it is supported by the record. See
Karkkainen, 445 F.3d at 289 (internal quotation marks and
citation omitted).

       He also points to the fact that Yang helped to enroll
Raeann in a Pittsburgh school and that she agreed that even if
she recovered sooner Raeann should complete the fall school
term in Pittsburgh. The fall term at the school Raeann attended
in Pittsburgh did not end until January, a fact which Yang
claims she did not learn until after the agreement was made.
Even if Yang knew that the term went until January, this is still
within two to three months of October, when Raeann began
residing with Tsui. Therefore, this fact does not actually help
Tsui as it does not contradict the District Court’s finding.

      Secondly, Tsui attempts to analogize this case to
Karkkainen. Such an analogy is improper because the facts of

       15
         Tsui also points to the parties’ agreement that Raeann
would remain with Tsui if Yang died as evidence that they did
not agree that Raeann would only stay with Tsui for a couple of
months while Yang recovered. However, the agreement as to
what would happen upon Yang’s death was a different
agreement than the one at issue in this case. As the condition of
Yang’s death did not arise, that second agreement never came
into effect. What the parties intended if Yang did not survive
does not reflect what the parties intended during Yang’s
recovery period. If anything, the second agreement provides
further explanation as to why Yang packed summer clothes.

                               22
the two cases are too dissimilar, and as we have said these types
of cases are extremely fact-intensive.16 Our main focus in
Karkkainen was on the perspective of the eleven-year-old child
who we determined had become acclimatized in the United
States. 445 F.3d at 293-97. There is no such evidence in this
case. Additionally, the shared intent in that case was that the
child could determine, after spending the summer in the United
States, whether or not to remain permanently in the United
States. Id. at 297. Such a mutual intent is nothing like an
agreement that a child reside in Pittsburgh for a couple of
months until her mother recovered from surgery. Therefore,
although the cases share some similar facts, such as the mother
assisting with the child being enrolled in school and the packing
of items beyond those needed for a short stay, Karkkainen does
not control the outcome of this case.




       16
          Tsui’s reliance on case law from other jurisdictions
suffers from the same flaw. The other cases are factually
distinguishable. See, e.g., Koch v. Koch, 450 F.3d 703, 718 (7th
Cir. 2006) (holding Germany was children’s habitual residence
as parents moved there together with the shared intent to remain
for at least three years); In re Bates, No. CA 122-89, High Court
of Justice, Family Div’l Ct. Royal Courts of Justice, United
Kingdom (1989) (finding that two-year old’s habitual residence
changed based on parents’ intentions and overt actions,
including obtaining a place to stay). In both Koch and Bates, the
parents took steps together to change the habitual residence of
the children. That is simply not the facts of this case, and
therefore we are not guided by those decisions.

                               23
       As the record and the case law convince us that Canada
was Raeann’s habitual residence immediately prior to
November 20, 2002, the Convention is applicable as she was
retained in the United States. Gitter v. Gitter, 396 F.3d 124, 130
(2d Cir. 2005). However, we must complete the remaining steps
of the analysis in order to determine whether the retention was
wrongful within the meaning of Article 3.

                                B.

        The next step to consider is whether Yang had custody of
Raeann.17 Custody rights, under the Hague Convention,
“include rights relating to the care of the person of the child and,
in particular, the right to determine the child’s place of
residence.” Hague Convention, art. 5(a). To make a custody
determination, it is necessary to carefully examine “the country
of origin’s custody laws to determine whether the party seeking
the child’s return had custody rights in that country . . . at the
time the child was [retained].” Adan, 437 F.3d at 391 (internal
quotation marks and citation omitted). When the country in
which the child habitually resides has “more than one territorial
unit, the custody rights laws of the territorial unit apply.” Feder,
63 F.3d at 221-22 (citing Hague Convention, art. 31).

       17
        We again note that a determination of custody rights
under the Hague Convention is not a determination of who
should actually have custody. See, e.g., Adan, 437 F.3d at 391;
Hague Convention, art. 16. Rather, we are only deciding who
had custody rights in the country of the child’s habitual
residence in order to determine whether the child was
wrongfully retained under the Convention.

                                24
        Under the Convention custody rights are different than
“rights of access.” Rights of access “include the right to take a
child for a limited period of time to a place other than the child’s
habitual residence.” Hague Convention, art. 5(b). Rights of
access are visitation rights, and the protection afforded for such
rights under the Convention is less than that afforded for
custody rights. Adan, 437 F.3d at 392. When custody rights are
violated, a court can order that the child be returned to his or her
habitual residence, while a court cannot order the return of a
child when access rights are violated. Id.

       In this case, as Raeann was an habitual resident in
Canada, but more specifically British Columbia, British
Columbia’s law governs the determination of custody rights as
defined by the Convention. See Feder, 63 F.3d at 221-22. Both
parties offered expert testimony on British Columbia custody
law, and it is undisputed that its Family Relations Act is
applicable. The Act states in pertinent part:

       34. Persons who may exercise custody

       34(1)

       Subject to subsection (2), the persons who may
       exercise custody over a child are as follows:

       (a) if the father and mother live together, the
       father and mother jointly;




                                25
       (b) if the father and mother live separate and
       apart, the parent with whom the child usually
       resides;

       (c) if custody rights exist under a court order, the
       person who has those rights;

       (d) if custody rights exist under a written
       agreement, the person to whom those rights are
       given.

       34(2)

       If persons have conflicting claims to custody
       under subsection (1), the following persons may
       exercise custody to the exclusion of the other
       persons unless a court otherwise orders:

       (a) the person who has custody rights under a
       court order;

       (b) if paragraph (a) does not apply, the person
       granted custody by an agreement;

       (c) if paragraphs (a) and (b) do not apply, the
       person claiming custody with whom the child
       usually resides. . . .

R.S.B.C. 1996, c. 128, s. 34.




                                26
       Yang and Tsui both claimed to have custody rights under
section 34(1). At the hearing before the District Court, both
experts testified that because both parents claimed to have
custody rights section 34(2) applies.18 Therefore, we need to
determine which subsection applies. No custody order existed
on the date of retention making section 34(2)(a) inapplicable.
Tsui argues that an agreement existed making section 34(2)(b)
the relevant provision. However, Yang argues that section
34(2)(c) controls in this case.

        We will first address whether there was an agreement
between Yang and Tsui regarding the custody of Raeann. It is
undisputed that prior to Raeann’s travel to Pittsburgh, Yang had
sole custody of Raeann. That is Yang and Tsui lived separate
and apart, and Raeann resided with Yang. See R.S.B.C. 1996,
c. 128, s. 34(1)(b). Therefore, we need to determine whether, as
Tsui claims, there was an agreement between the parties that
transferred custody to Tsui.

        The experts testified that, like the Convention, the
custody laws of British Columbia differentiate between custody
rights and visitation rights. According to the experts, a custodial
parent is the parent who is entitled to make the major decisions
regarding the child and who oversees the day-to-day care of the
child, while a non-custodial parent has access or visitation
rights. However, both experts testified that a child’s “visit” with

       18
          The District Court applied section 34(1). However, we
find that section 34(2) applies because of the conflicting custody
claims. The factual determinations made by the District Court
enable us to apply section 34(2) in our analysis.

                                27
the non-custodial parent can be for an extended period of time,
such as summer vacation.

       There was also testimony regarding what constituted a
custody agreement under the Family Relations Act. According
to the experts, a custody agreement does not need to be filed
with a court or even be memorialized in writing. Rather, an oral
agreement or unsigned documents, such as emails, will suffice.
However, the main factor according to both experts is whether
the custodial parent intended to transfer custody rights to the
non-custodial parent.      Tsui’s expert testified that the
determination of whether such an intent existed is a factual
determination to be made by a judge. She also explained that
factors such as whether the custodial parent authorized the non-
custodial parent to make major decisions, such as where to
enroll the child in school or what doctors to use, can
demonstrate such an intent.

        Tsui argues that the evidence in this case demonstrates an
agreement to transfer custody of Raeann to him. As proof he
points to the authorization that Yang signed which allowed
Raeann to travel to Pittsburgh with him. That document simply
stated “I authorize Mr. Fu-Chiang Tsui to accompany Raeann
Tsui to travel to the United States.” Tsui’s own expert testified
that the authorization was ambiguous and did not clearly transfer
custody rights. Because of that ambiguity, she stated, whether
the writer intended to transfer custody was a factual
determination to be made by a judge. The District Court in this
case found that Yang did not intend to transfer custody when she
prepared and signed the document. Based on the record, we
agree with that determination.

                               28
        Tsui also claims that the general agreement that Raeann
stay with him included the transfer of custody rights. Such an
agreement necessarily constituted a change of custody, he
claims, as it required Tsui to make major decisions regarding
Raeann. However, the record does not demonstrate that is true.
For example, as Tsui vigorously argued in his Brief regarding
the habitual residence determination, Yang participated in the
enrollment of Raeann in a Pittsburgh school. And, although
Tsui believed that Raeann should remain in the school for the
entire fall term even if Yang recovered before then, he sought
Yang’s approval for that decision. There is evidence in the
record that Tsui took Raeann to doctors for a skin condition.
However, the record does not indicate that such visits occurred
during the relevant time period between October 27, 2002 and
November 20, 2002. Nor does the record reflect that Yang had
knowledge of such visits or that she approved. The evidence
does not demonstrate that Tsui had control over the major
decisions regarding Raeann. The requisite intent to transfer
custody is absent. Rather, as the District Court determined,
“Raeann’s trip to the United States was intended by her parents
to be an extended visit coextensive with Yang’s convalescence
and not a transfer of custody for an indefinite period of time.”
Yang v. Tsui, No. 2:03-cv-1613, 2006 WL 2466095, *11 (W.D.
Pa. Aug. 25, 2006). Absent an intent by Yang to transfer
custody, a requirement that Tsui’s expert testified was necessary
and to be determined by a judge, it cannot be said that the
parties had an agreement as required under section 34(2)(b) to
create custody rights in Tsui. Therefore, section 34(2)(b) is
inapplicable to this case.




                               29
        We now turn to section 34(2)(c), and we must determine
who Raeann usually resided with at the date of retention. On
appeal, Tsui does not contest, nor can he, that Raeann usually
resided with Yang prior to the date of retention. The District
Court held that Raeann usually resided with Yang, and it is clear
from the record that it was correct. In fact, for most of her life
Raeann resided solely with her mother. From April 2001 until
the end of October 2002, Yang and Raeann resided in British
Columbia. The time that Raeann spent at Tsui’s house in
Pittsburgh from October 27, 2002 until November 20, 2002,
cannot be said to constitute her “usual” residence. Based on the
facts of this case, Yang is clearly the parent with whom Raeann
usually resided. Therefore, under section 34(2)(c), Yang had
exclusive custody rights within the meaning of the Convention.

                                C.

       As we have determined that Yang in fact had custody of
Raeann, we now reach the final question in the wrongful
retention analysis: whether she was exercising those rights at the
time of retention. Under this prong, Yang’s burden is easy
because “the test for finding the non-exercise of custody rights
under the Hague Convention is stringent.” Baxter, 423 F.3d at
370 (internal citation omitted). “‘[V]ery little is required of the
applicant in support of the allegation that custody rights have
actually been or would have been exercised.’” Adan, 437 F.3d
at 391 (quoting Hague Int’l Child Abduction Convention: Text
and Legal Analysis, 51 Fed.Reg. 10,494, 10,507 (Mar. 26, 1986)
(hereinafter “Hague Convention Analysis”)). The petitioner can
show the exercise of custody rights by demonstrating that he or
she kept or sought to keep, some sort of regular contact with the

                                30
child. Baxter, 423 F.3d at 370. Essentially, nothing short of
clear and unequivocal abandonment will prove that the
petitioner failed to exercise his or her custodial rights. Id.

       The evidence in this case clearly meets the standard.
Yang attempted to speak with Raeann whenever possible, even
when she was in the hospital. When she was out of the hospital
she spoke with Raeann every day, until Tsui limited the calls to
every other day. Therefore, she kept or attempted to keep some
sort of regular contact with Raeann. Nothing in the record
suggests that Yang clearly or unequivocally abandoned Raeann.
Therefore, Yang exercised her custody rights.

         Tsui argues that Yang was unable to exercise her custody
rights because of her illness. That is, he claims that Yang was
not able to take care of Raeann from the end of October 2002
until the date of retention, and even after that period. However,
this is not sufficient to refute Yang’s evidence that she exercised
her custody rights. As the test for finding the non-exercise of
custody is stringent, Yang’s illness simply does not meet that
high bar.

                                D.

      We hold that Yang proved by a preponderance of the
evidence that Tsui wrongfully retained Raeann within the
meaning of Article 3. As there was a wrongful retention, the
Convention dictates that Raeann must be returned to Canada.




                                31
Hague Convention, art. 12.19 However, the Convention also
gives the District Court the discretion to deny such an order for
a variety of reasons. Hague Convention, art. 13. The
respondent has the burden of proving that the child should not
be returned for one of the enumerated exceptions listed in
Article 13. Karkkainen, 445 F.3d at 288. If the respondent
proves one of the affirmative defenses, it is within the discretion
of the District Court to refuse to order the child be returned to
his or her habitual residence. Id.

        On appeal, Tsui maintains that he proved the “wishes of
the child” defense by a preponderance of the evidence and that
the District Court abused its discretion by entering the order for
Raeann to be returned to Canada despite such proof. Although
we have not previously considered this defense, we believe that
the District Court did not err by refusing to apply the defense.
Therefore, we will affirm the order mandating that Raeann be
returned to Canada despite her desire to remain in the United
States.

       Article 13 includes what has been called the “wishes of
the child” defense or exception. The Convention provides:

       The judicial or administrative authority may also
       refuse to order the return of the child if it finds
       that the child objects to being returned and has


       19
          As we held in Yang I, the “well-settled determination”
is not relevant to this case because Yang filed her Petition within
one-year of the date of wrongful retention. 416 F.3d at 203 n.4.

                                32
       attained an age and degree of maturity at which it
       is appropriate to take account of its views.

Hague Convention, art. 13. As with any of the affirmative
defenses under the Convention, this defense is to be construed
narrowly. See England v. England, 234 F.3d 268, 272 (5th Cir.
2000). The exceptions are construed narrowly so their
application does not undermine “the express purposes of the
Convention.” Feder, 63 F.3d at 226. Additionally, even if the
respondent meets his or her burden of proving the affirmative
defense, the court retains the discretion “to order the return of
the child if it would further the aim of the Convention which is
to provide for the return of a wrongfully removed child.” de
Silva v. Pitts, 481 F.3d 1279, 1285 (10th Cir. 2007) (internal
citations omitted); see also Feder, 63 F.3d at 226.

        Although we have not previously considered this defense,
we agree with the analysis used by other courts that have
addressed its application. The child’s wishes can be the sole
reason that a court refuses to order the return of the child to his
or her habitual residence. See Blondin v. Dubois, 189 F.3d 240,
247 (2d Cir. 1999) (internal citations omitted). However, a
“court must apply a stricter standard in considering a child’s
wishes when those wishes are the sole reason underlying a
repatriation decision and not part of some broader analysis,”
such as whether the child would suffer a grave risk of harm if
returned to his or her habitual residence. de Silva, 481 F.3d at
1286.

       An analysis of whether to apply the “wishes of the child”
exception requires consideration of the goals of the Convention

                                33
and a determination of whether the child is of sufficient age and
maturity for his or her views to be taken into account. Id. The
Convention does not set an age at which a child is automatically
considered to be sufficiently mature, rather the determination is
to be made on a case-by-case basis. “Given the fact-intensive
and idiosyncratic nature of the inquiry, decisions applying the
age and maturity exception are understandably disparate.” Id.
at 1287 (internal citation omitted). In making its determination,
a court should also consider whether a child’s desire to remain
or return to a place is “the product of undue influence,” in which
case the “child’s wishes” should not be considered. Id. at 1286;
see also Hague Convention Analysis, 51 Fed.Reg. at 10,509 (“A
child’s objection to being returned may be accorded little if any
weight if the court believes that the child’s preference is the
product of the abductor parent’s undue influence over the
child.”).

        The District Court heard Raeann’s testimony in camera,
and determined that she was “a bright, intelligent and pleasant
child.” Dr. Paul Bernstein, a psychologist and expert witness
used by Tsui, supplied a report in which he also found Raeann
to be quite intelligent. Raeann informed Dr. Bernstein that she
wanted to stay in Pittsburgh. Her reasons for wanting to stay
included liking her school, her preference for living in a house
rather than a small apartment, and having friends and brothers.
She also explained that she missed her mother and knew that her
mother was very sick, but she was happy in Pittsburgh and had
lived there for more than three years. Raeann’s testimony at the
hearing was consistent with her statements to Dr. Bernstein. At
the hearing, Dr. Bernstein testified that he did not think that
Raeann demonstrated any signs of coercion, although he

                               34
admitted that her time and experiences with her father had a
major impact on her desire to remain in Pittsburgh.

        The District Court found that Raeann’s testimony did not
include particularized objections to returning to Canada, but
rather it indicated that she possessed a more generalized desire
to remain in Pittsburgh similar to that of any ten-year-old having
to move to a new location. She had reasons to support her
preference to remain in the United States, but such reasons were
not necessarily sufficient to invoke the exception. See, e.g.,
Locicero v. Lurashi, 321 F. Supp. 2d 295, 298 (D. P.R. 2004)
(“The fact that the [thirteen-year-old] child prefers to remain in
Puerto Rico, because he has good grades, has friends and enjoys
sports activities and outings, is not enough for this Court to
disregard the narrowness of the age and maturity exception to
the Convention’s rule of mandatory return.”). Despite her
intelligence and demeanor, the District Court found that Raeann
was not of sufficient age or maturity for her views to be
appropriately considered. In other words, it found that Tsui
failed to meet his burden of proving by a preponderance of the
evidence that the “wishes of the child” exception should be
applied in this case. Therefore, the District Court declined to
apply the exception to prevent Raeann from being returned to
Canada based solely on her desire to remain in Pittsburgh. As
such a finding is not clearly erroneous, we will not disturb it.20

       20
         The District Court also found evidence of undue
influence. In its view, some of Raeann’s statements to Dr.
Bernstein demonstrated that she was expressing someone else’s
opinion. For example, it believed that her statement that the
“best school is in Pittsburgh” was mere repetition of what Tsui

                               35
       In addition, the District Court determined that this was
not an appropriate case in which to apply the exception. The
attachment that Raeann had to Pittsburgh and her family there
were created because of Tsui’s wrongful retention of Raeann.
The three weeks in which Raeann resided with Tsui, but was not
wrongfully retained by him, is not the time period during which
Raeann grew attached to her family and life in Pittsburgh.
Rather, it was the passage of time during the years of wrongful
retention and litigation of this case that created Raeann’s desire
to remain in Pittsburgh. If the District Court applied the
exception in this case, it would encourage parents to wrongfully
retain a child for as long as possible. A lengthy wrongful
retention could enable the child to become comfortable in his or
her new surroundings, which may create a desire to remain in
his or her new home. The application of the exception in this


told her. Dr. Bernstein testified that Raeann’s use of the word
“best” was not meant in the comparative sense, but rather
connoted that she thought her school was great. The District
Court rejected that interpretation based on Dr. Bernstein’s prior
testimony that Raeann was a borderline genius, and it thought it
was unlikely that she did not understand the comparative
meaning of the word “best.” As the record is sufficient to
support the District Court’s determination that Raeann was not
sufficiently mature for a court to appropriately consider her
views and that the application of the exception in this case
would frustrate the purposes of the Convention, absent a
determination of undue influence, it is unnecessary for us to
determine whether the suggestion of undue influence in the
record was sufficiently strong in this case for Raeann’s views to
be disregarded on that basis.

                               36
case would reward Tsui for violating Yang’s custody rights, and
defeat the purposes of the Convention. Even if the record
supported a finding that Tsui met his burden of proving the
applicability of the exception to this case, it cannot be said that
the District Court abused its discretion by refusing to apply the
exception. Rather, the District Court construed the exception
narrowly in order to “effectuate the purposes of the
Convention.” Karkkainen, 445 F.3d at 288. Therefore, we
agree with the District Court’s refusal to apply the exception in
this case, and its order mandating Raeann’s return to Canada.

                                IV.

       For the reasons stated above, we agree with the District
Court’s determination that Tsui wrongfully retained Raeann, and
that Raeann should have been returned to Canada despite the
“wishes of the child” exception. Therefore, we will affirm the
District Court’s judgment.

NYGAARD, J., Concurring.

        I join Judge Fisher’s excellent opinion for the court in its
totality and write separately in order to shine a brief spotlight on
the alarming absence of alternative dispute resolution practices
under the Hague Convention. The concerns we have for
children in domestic custody disputes are no different for
children caught-up in litigation under the Hague Convention.
Tragically, the difficulties parents and the courts face in
protecting children from instability and unpredictability are
magnified for children involved in Hague Convention litigation
because of the cross-border nature of their parents’ dispute.

                                37
       Globalization has lead to a dramatic increase in litigation
of international family disputes. See Revised Brussels
Regulation II, Council of the European Union,
http://europa.eu.int/eur-lex/pri/en/oj/dat/2003/l_338/l_
33820031223en00010029.pdf; Nigel Lowe et al., A Statistical
Analysis of Applications Made in 1999 Under the Hague
Convention of 25 October 1980 on the Civil Aspects of
International Child Abduction Preliminary Document No. 3 of
March 2001 (revised version, Nov. 2001), Permanent Bureau of
the       Hague          Conference,                  http://
hcch.e-vision.nl/upload/abd2001pd3e.pdf. I submit that such an
increase calls for creating better mechanisms for settling
international custody disputes. Of course, discussion of the
importance of ADR in international custody dispute litigation is
beyond the scope of this concurring opinion. I commend the
following article to interested parties in the hope that at some
point efforts will be undertaken to alleviate the tragic positions
of children who, like Raeann Tsui, are trapped in long and
destructive international custody battles: Radoslaw Pawlowski,
Note, Alternative Dispute Resolution For Hague Convention
Child Custody Disputes, 45 FAM. CT. REV. 302 (2007).




                               38
