before before we start i've spoken to my colleagues about this so this is a message from the three of us and not just from me we think that there has been too much sealed in this case in so far as the briefs on appeal are concerned we understand why some things are sealed so for example allegations concerning the abuse of the child the child's mental health situation we understand that completely but with regards to other matters like for example the district court's determination of what nick what i'm all in law meant and how that plays into the hague conventions provisions and all of that the procedural history of the case those sorts of issues the evidentiary rulings that don't deal with sensitive information that stuff in our view does not warrant sealing so we're not going to give you any homework over the holidays but by the end of let's say the second week of january i think but let's say the fourteenth which is a monday each side has to file at the same time revised redacted briefs for that redact only the materials or the information dealing the child's alleged abuse and mental situation mental health issues so if you have any issues or whatever you can get together and ask us for clarification but i think you know where we're headed there are some there's just some stuff there that the public should be able to read about and know about in figuring out what we've done alternately with with the case all right by the way let me just say one more thing i'm sorry and that is we've read the record and it's on redacted form or at least the relevant parts of it this courtroom is not sealed today so you can refer to certain matters in generalize ways so as not to create any any problem for yourselves or for your of your clients or for the child and will know what it is you're you're talking about whenever you're ready  the appeal so we're here on a appeal of an order granting petition for return of child i also wanted to thank the panel for expediting moral argument in this case eight we have several grounds for appeal the first in the lead one is the one i'd like to spend the most of my time on today because it involves a what we would this and speaking to the particular the rights or custody rights prong of the test and it the language in there says what it says it's a flexible standard but it keys on the word rights and there have to be rights for there to be a petition granted it's an element and the language in the hanley case is a jet is for general application and you have to move to step two of the process which is in every case different in other words that hanley's precedent but in handily and the other cases that have been cited except for one we're talking about the application and analysis of other countries laws indeed just a quick question because you just sort of focus on that were rights and i understand your argument the word rights in article five doesn't stand alone rights relating to the care of the child so the in the ultimate sort of law firm partner move i said to one of my law clerks i seem to have it in my head that the supreme court wants construed the phrase related to and they said basically everything relates to everything else lo and behold that case does exist it's an interesting case in the supreme court cites black's law dictionary and black's law dictionary says that relating just means connected in some way so i understand your distinction between rights and obligations or duties but why aren't there rights here that are connected in some way to the care of the child especially given to fifty three and under god i'm all in law says you know obligated to care for the child that just seems pretty close to me especially when connected by this phrase relating to well there's two reasons that i would i would answer your honor's question the first one is the word right is not in article two fifty three its obligations of morrison to sixty one the right the the no but it's the the words in two sixty one that are overriding of anything we would submit is power of the mother so without regard to riot my client was the was not the petitioner but  so she didn't have to establish any rights but but under two sixty one which is what the court determined but the district court and this court sufficient to create a right of custody it doesn't suggest does it nor does the language of two sixty one that is exclusive of other rights i believe that it yes i think it does and in the lower court opinion the court said petitioner therefore had the absolute right under guatemalan law to determine else place of residence residence a right of which respondent was admittedly where i think the district court used the word absolute right and then in the in the eleventh circuit opinion it says article two sixty one of the civil law code notes that children shall be in the power of the mother where the mother is unwed unless both parents agree that the father should have custody consequently sixty one gave the mother a sufficient right to do what the father here is trying to do namely prevent the wrongful retention removal i think what it says is she was the petitioner in that case that the mother was the petitioner in that case but i think and i think what what to sixty one has to be right even independent of about of about it has to be read as exclusive of any other rights because how could you read it any differently would undermine the power of the mother language you could never have a situation and it's a shout shout beyond the power of the mother so there's no there's no there's no other reading but i have i understand where you're going and where you're coming from i think and if the convention didn't say anything to define the term rights of custody i think your argument would be on pretty good footing because custody means something different than just care of a child it means who has the lawful authority to have the child  in his or her home but there is as to new some mentioned a partial definition of rights of custody it includes those relating to  care of the child and so on care comes into play does an article two fifty three become relevant to fifty three becomes relevant but if you read it it's imposes obligations and it's it's the leonard it's the language of that are that the reasoning of the leonard case that we we've both discussed in a briefs and that medically it's on appeal but in that case the court went through in the country's laws in that case and think it was it was turkey different provisions that did provide right because they say use the word rights and it and it's focused on other provisions where they used they used the word obligations and they said yes this qualifies under the hague standard for rights it does it but these obligations do not and that's the same reasoning that we're asserting here but one step further which is the courts are obligated while there's a flexible standard the courts are obligated to read all of the provisions of a country's laws that apply in harmony if you can't do that if you can't grant the petition and that's all we're saying is two sixty one and it's power of mother language and two fifty three cannot cannot co exist or be read together if you're go recognize a right under two fifty three that could trump the power of the mother language it's a let me ask you this i mean i'm trying to figure out how this plays out in real life so if two fifty three only imposes obligations responsibilities the the  penalty for violation of which is criminal responsibility right that's what two fifty three says it's wrong and simultaneously you say that two sixty one gives the mother sort of an absolute trump then does that mean that the mother can so see through her power the custody of the child that she can unilaterally put the father in criminal responsibility in violation of the criminal law for not caring for his child i don't think it i don't think it addresses that situation and i don't think that that would be a sin a situation where if the mother takes exclusive power of the child and eat the the father could not exercise it obligation i don't think that that would expose him to criminal liability i think what it's saying is if you neglect your responsibility then you  when you're able to exercise it then you could be exposed to criminal penalties i mean to fifty three says the father dot dot dot is obliged to care for and support his children and will be responsible according to the criminal laws if he abandons them morally and materially and fails to fulfill the duties and hara to his parental authority so he's got obligations of care education discipline to the child that if he violates he is responsible for criminally and if the mother under two sixty one can put a wall around the child and say tough new gays then isn't it possible now i can see you might have a good jury argument that well she's preventing him from doing his duty under to fifty three but when we're talking about trying to read to statutory sections in harmony that seems like we're kind of driving a wedge between them to me just in terms of common sense but you can't our point is you can't read one without the other if you if you read right the word rights into two fifty three you're ignoring that the power of the mother language you have to be if the if the father die has no custodial rights rights why was his authorization needed for the child to obtain a passport  i don't know that that's a that's a custodial i don't know that's a right that spelled out anywhere i think just as a at as a unwed mother as just as the father that was required  i think that imposes a right and clearly that doesn't speak to the interplay between two fifty three and two sixty one which is what the district court that's how the district court got to the legal conclusion that she got to  there's one other thing i'd like to mention which maybe goes into all this and handling handling it i would call to sixty want to trump card i would i would call it that i'm calling it that it says power of the mother you can't read it any other way if it's a hobson's choice it's got to be decided for the mother because it says power of the mother that's exclusive should be and it's a situation where there are no unwed it's not the same if they're married and that's quite a mo in law that's what it provides now there was also a trump card in the hand the case which had it been played correctly would have rendered the rights analysis moot in that case and that was this if you read further on and handily after handling was about guardianship had to do was timely object to the guardianship and he didn't do it he tried to he tried to argue that he had implicitly done it by taking the child away but the court said no it wasn't timely but if you had it would have been a simple exercise of i object to this guardianship and he would have had the same kind of trump card that we're arguing it is inherent in into sixty one wasn't there testimony was nothing to base that on in other words and the briefs have said this to that is that what amal is a civil code state is no case law or country there's no case law to construe it  so there was no basis to have accepted that expert opinion and also it's the court's in this analysis the court can look to the four corners of the of the argument there's no i agree with you on that last point it certainly is i mean rule rule forty four one calls upon questions of foreign law to be decided as issues of the law but are there any specific rules understanding th guatemala is a civil law country with a code reigns supreme and that absent extraordinary circumstances not present here judicial decisions don't bear on the interpretation of the code are there any specific rules of statutory construction that govern in guatemala that we need to be aware of his i didn't see any that were alluded to by the parties either in the district court or on appeal there i'm not aware of any your honor in the record either so it's  garcia case was a northern district of georgia case which was relied upon by the district court as well fairly heavily in that case that was spanish law and in that case there was an agreement between the parties to share rights there was also spanish law provides unless explicitly waived by one party that there are in all circumstances i believe joint rights so so that that case just that's what i said at the top is the hanley case that set the standard but every case is different when you look to the country's laws and here you can't read to sixty one the way that the court's read it because it doesn't it ren important case for this court it's important because twice before in this nation twice before there has been an attempt to restrict article five easy an attempt was made in case called whalen versus len where chief judge lynch also explained why this concept of patry a protest stance which is a concept utterly a new an in our jurisdiction comes within  article five and i do want to first address judge jordan your question at the end it is important that we say that we understand that different countries whether in the united states or guatemala have utterly different systems that use different semantics and different concepts of jurisprudence guatemala is a civil jurisdiction it does not have rules o statutory construction what happens no different in scotland also is civil law jurisdiction the law develops after it's been published in the civil court and so what did the capture in the whitest possible sense paris vera says in the her explanatory report of the treaty capturing the widest possible sense is a single right just one one one one that's all we need because that gets us through the second prong of article three so what so what in your estimation in two sixty one does power of the mother mean what does power of the mother means unilateral rights with respect to all control of the child forever so it's sort of like the ultimate custodial rights but not you say exclusive of some rights existing elsewhere i'm smiling because you've hit the nail on the head we see exactly your use of that word custody is different from the way guatemala understands the term the way ireland understands the term in handley because custody restrict the remedy to find a way to bring every possible case into this amazing treaty when it was drafted as you know the belief was maybe two or three countries in the world would sign on to it we have a hundred nations now and off those hundred nations most of them judge and use and don't ever use the word custody in their laws doesn't appear and so five eight takes us to well what do we mean in the treaty by rights of custody which interestingly is put in the treaty in single inverted commas and it's done saul and that's done s because this is a text based treaty as as justice kennedy explained in abbott this is text base we look to what this treaty is trying to say in the plain words and up and down the land we have judges saying i can find a single concept here that captures the second prong of article three that gets us to rights of custody because as you said in hanley you have to be fairly careful of imposing american concepts of custody and american concepts of the semantics of custody on other nations for example before this court was divided between the fifth and eleven circuit just comes to mind no because i was reading the amazing story outside about judge kravitz just before we started and the fifth circuit in texas for example the word custody doesn't exist it talks about conservatorship and if you look at other countries dealing with texas cases and returning to children to texas they have the same issues with what does that mean is there something in the word conservatorship that brings in the right to care for the child the other point judge newsome you mentioned relating to again we say that's very important because i'm sure you've had in your minds about obligations versus rights but we say that the concept of obligation is even stronger than the concept of right and so must be about it if the father here had the obligation to care for the child support the child educate the child discipline the child what does all that mean it means bound to forge this child's and i don't want to overstate it but forge this child's destiny in his life he was jus t boned to influence the child's language culture traditions country how can that not be a right is being filey to by the unilateral remove all and when the whole idea behind the treaty is to stop a parent's obligations to care for their child so i'm i guess i worry that i'm wading in the philosophical waters here that i'm not sort of equipped to swim and but is your position then that  must necessarily implies i'm a if the if the father must provide care or education discipline then of necessity sort of philosophically in the ether he he may do those things yes because there are different types of parents there are good and bad there are involved parents and an involved parents there are parents who do less than criminal actions but certainly to a very poor job in advancing the child's life and so yes that is our position because otherwise again we get into this very concerning area of limiting the scope of this treaty because every one of these cases is different but everyone hinges on can we find one right just one and so when my learned friend said for example that essentially if you advance article two fifty three then you are a vis a rating article two sixty one i can see why that would be an argument in the concept perhaps of internal law in a country but it's not relevant in the context of the hague case because all the treaties are asking you to do is find one right and that ri and the argument went that no you can't possibly say that something negative is a right and justice kennedy explained no that would turn the treaty on the hate on its head because the whole idea is a uniform approach that ensures consistency and that captures the widest possible at result so although of course abbott it was six three like your typical case look for anything even if we don't understand this concept in our jews prudence and article two fifty three clearly enunciates obligations on this father to bring this child up your your argument as i as i understood it in the breeze at the end of the day is that even if article two sixty one trumps article two fifty three in a case of a conflict between the mother and the father for example with regards to education that doesn't mean that article two fifty three doesn't create rights of custody it just may mean that underwater mana law one right  superior to the other where there's a clash yet that's exactly right and the reason for that is if you look at many civil law jurisdictions they have patrick protest us they have they have this other concept the they all apply in the context of the hague case even though they may have priority in the internal jurisdiction of that particular country so  it really is this circuit that in handily took the impetus to say we have to look in the broadest possible sense i think many many ill hague practitioners were very worried that these guardianship rights in ireland would be considered something lesser than an article five the right to care at but you said the opposite and our concern coming in here today is that any attempt to restrict because that's what we're talking about restricting the very wide scope of this treaty will ultimately undermine the treaty and why does that matter to us here why does it matter to get the child back to guatemala where it matters because we want our children back from other countries and the way this treaty is to be addressed is internationalism it may not be the flavor of the month but this treaty is based on an international approach to the protection of children and to prevent unilateral action by one parent and judge branch your thought your question about the passports was very important because it is clear that the mother still needed the involvement of the father to get the guatemalan passport how can that not be in an off itself a right to care for the child because you don't want children crossing international borders without passports we don't want the child going back to guatemala without being admitted without any difficulty into the country was there any testimony at the hearing i haven't read all of the testimony at the hearing about whether or not an jurisdiction like what amala she would have needed the mother would have needed the father's express consent written or otherwise to remove the child from the country right in our expert attorney live i says that there she would have needed that right that when you look at the guatemalan constitution this is in her rebuttal affidavit and when you look at the various other articles in the immigration court that she couldn't do a unilateral removal but of course we're talking here about a wrongful retention a wrongful retention because that the facts of this case is not my point my point was not about removal of versus under sedation i understand what you're trying to get at but to the extent that the father would have had to provide consent for an initial removal of the child for a significant or indefinite period of time from the country that might go to the question of whether or not article two fifty three provided him with some rights of custody yes your  explains exactly that point to judge jordan so of course what the lower court did here is exactly what it was supposed to do and it notes in a footnote that i have found one right i don't need to look at anything else article fifty three article two fifty three is enough that gets me through a bit chill residents it gets me a a right under article five a and we have to be very careful to say it doesn't give me evidence of a custodial right because now we're getting back into the semantics problem the lower court said it gives me an article five the right clearly there was exercising  rights and for all those reasons we say please a farm this is a great opportunity for the court to continue to emphasize that this treaty should be advanced in the widest possible sense thank you  i don't think the abbott case or the wailing case frankly any of the cases that have been cited to the core involve a situation like what we're dealing with here which is how do you read and when to go back to it how do you read article two sixty one in this case where the children will be under the power of the mother where they are not married or under a non marital union of which there is no question in this case that it applies how is and why isn't the answer to your why or how question how do you do you read these two things  harmony judge jordan's answer which is somebody has got to be that's george w bush said somebody's got to be the decider so he's the decider but that doesn't mean that cheney and rumsfeld and the rest of the crew don't have a say father's got a say and mr collins says a say in these things like care and education and discipline under fifty three of the article five good enough because in a case like this it right it completely reads out that ultimate power and i agree with mr cohen the way that eat defined article two to sixty one is the most of it down to unilateral absolute right to decide the child from forever so that  i'm saying is that has to be exclusive of all other rights and then you go back to where the court found there wasn't any testimony by the way judge gordon i believe mr cohen was reading from affidavit i don't recall that that particular provision that he read was was was testified to no but that's what i understood him to say that brought to the extent that any such evidence is in the record in the affidavit and not in live testimony at the he but i don't think a minister ariel part of the immigration code that provides a passport requirement on both the mother and the father plays into this and it certainly doesn't play into article two fifty three and i go back to the plain language of article two fifty three that is obligations of both parents all this stuff about not negative rights the word rights not in there it is in all the other cases and finally power of the mother the plain language of that has to be respected and simply put granting the petition if it's or it's all right thank you very much but before we finish i just wan recognize that as all of you know these are very difficult cases both legally emotionally practically and have to be decided on a very very short fuse and we want to thank all of you for your representation of the parents in this case i know your client certainly appreciated and and we do as well