you hunt you get through colleagues at my law firm mcguire woods who were originally appointed by the ninth circuit so i got involved in the briefing and now i'm honored to present the argument  dominion yes it's very cold and wet there this week so i appreciate the central issue in this case is the quote habitual residence of two young children under the ha convention on the civil aspects of international child abduction the district court held that ten month old girl ers e and six year old boy a l c were both bitterly resident in sweden and ordered them returned to that country at that time the children had been living in the united states with their mother all three of them american citizens for more than a year at least six months of that time with the express consent of their swedish father the children were not have bitterly resident in sweden well now now they've been back in sweden for quite some time what is it that you're asking us to do i'm asking you to reverse the judgment of the district court which is a return order to sweden and to remount to the district court with instructions to enter a return order that is to cancel the effect of the district court's order by returning the children to the united states so for ten month old girl ers she had never been to sweden when the district court ruled that she was a bitterly resident there she was not resident in sweden in any sense let me go back to th against your client again and put him back on a plane back to sweden that's potentially true yes your honor but the argument that we're making for e r s see is that as a matter of law she cannot possibly have been bitterly resident in sweden when she was so we're not expecting any further proceedings as to ers e a l c we believe acclimated in the united states such that when he was returned to sweden he was not a habitual resident of that country and so it's possible that further proceedings would be necessary for l c d especially in light of the procedural errors made by the district court in this case but at least as far as see our argument is that is a matter of law it's not possible that she was a bit chilly resident sweden as this court stated in moses quote a bitch of all residents cannot be acquired without physical presence and so if we look at the application of the two step moses tied to your s c in this case the first step of the moses test looks to the country that the petitioning parent wants the child returned to here sweden it then asks has the child lived in that country with the shared settled intent of both parents e r s c in this case never lived in sweden at all much less with the shared settled intent of her parents and a l c who had lived in sweden for a period of thirteen months after spending the first four years of his life in dubai a l c acclimated in the united states such that he was no longer have virtually resident there when he was returned to that country so acclimation essentially the question is did the united states supplant sweden as the locus of a elsie's development and for several reasons that is what happened here first a year is a substantial period of time in the life of a five to six year old boy he went to kindergarten in the united states which is a significant educational and cultural experience very importantly also the united states as mothers there is home country and so what we really have here for elsie is born in dubai this first four years in dubai then thirteen months in his father's home country then a year in his mother's home country and so when you look at his experiences there the district court should have asked itself did the united states supplant sweden as the locus of a l c development and procedurally the district court did several things that essentially prevented it from ever even undertaking a proper analysis of that point case i think everything goes back to the status quo when the district court ruled in this case particularly particularly from this court's perspective of course reviewing the ruling entered by the district court last april  the question essentially is was the analysis done properly then and if not on remand to do it properly now i don't believe that the time when the children should not have been in sweden should count toward the acclimation you know in other words the question even on remand would be were the children or was a l c have actually resident in sweden or the united states when he was originally sent back there so the procedural errors of the district court here the first one is that the district court never identified a date when a l c was alleged to be wrongfully retained in the united states and that under the  the first little bit of the first step of the moses and the reason is that to come to determine whether one country has supplanted the other as the locus of the child's development it's important to determine you know what period of time you're making that comparison for so that the district court did not do even more importantly though the district court mistook evidence of ale sees acclimation in the united states for evidence of the well settled defense which is not applicable here that's a affirmative defense under the convention kicks in only after a year after the wrongful retention and so because the district court was thinking the well settled defense doesn't apply here he steered the witnesses the mothers witnesses away from talking about a l c being well settled in the united states but in so doing the judge also prevented itself from hearing and considering evidence that a l c acclimated in the united states which of course goes to the father's element of a vigil residence and you can see this on the face of the district court's opinion on page three and i think again on page eleven the district court is discussing the ties that a l c made during his time in sweden but there's no comparable discussion of the ties that a l c developed during his time in the united states there's no meaningful analysis of whether the united states supplanted sweden as the locus of development there's one other point i'd like to make before reserving my time which is that the custody proceedings in sweden as you mentioned have been ongoing for the past almost year and we are concerned that is or what's the status yes your honor so apparently there were filings as recently as on friday of this past week and it looks like the recommendation has been made but no final custody order had been entered and the recommendation and this is translated from swedish this is my understanding but the recommendation is that the father be granted sole custody of the children and that that recommendation is based in significant part on the swedish court looking to the district court's opinion here and saying well it looks like since the mother was found to have abducted the children that she can't be trusted with them and so our concern is that possibly as early as sometime in april based on how the deadlines roll out from now that there could be a final custody order in stay in los angeles during which time she gave birth to a r s c but the parents never agreed your honor on what would happen after the end of that six months and you can see the district court into opinion talking about this they talked about moving to dubai and in fact there's a e mail from father to mother from before before mother the mother even came to the united states and it's quoted in the red brief on page four where the father says you know use you say after los angeles you'll join me in dubai but our marriage isn't working that well how do i know that will happen so you see that in the district court's opinion they're talking about moving to dubai they're talking potentially about moving to new york the father agrees to do it but there are conditions on that that never get satisfied so what we really have here from the perspective of parental intent is disagreement between the parents about where the child and children should permanently live they settle on six months in los angeles and essentially they kick the can down the road about what they're going to do permanently and after the end of that time you see them negotiating about that but they never really reach agreement and so why that matters to us is first there's no question agreement on six months in most angeles and the open negotiations there after about where in the world the family would is that the r s v was not a virtually resident in sweden and we believe bales he wasn't either but for different reasons and there are separate and again though to keep in mind under the purposes of the with she didn't go well she and and right after he went back with the children did she send him a was after he visited los angeles and then went back to sweden himself while the wife and children stayed here so that wasn't at the same time as after the hearing when the children were sent back and she had the opportunity to go back so and she did not go to sweden immediately with the children under the district court's order but she did go i believe just a month later she went to sweden and has spent significant time in sweden sense attempting to see and be with her children were she now she is sitting in the courtroom so she's been living in sweet as that which is silly she has been in different places i'm not sure she's been living in sweden but she spent significant time there in these intervening ten months when she's able to see her children she participate in the custody proceeding to sweden yes and i believe she has a sensually a swedish version of legal aid counsel representing her but yeah she's is no final order but a recommendation has been made and i think in custody proceedings that sort of how it goes and the recommendation is so custody for the father on the basis of her illegally keeping the children in the united states which is the ruling that we're asking this court to reverse so we think that it's very important we're hopeful that it's very important that what happens here will be very influential in the swedish court but there you know that amount including in the past few weeks on in that i believe that she came here for the first time we're learning about her residence during the past eleven months well your honor she  so that's where i assume well her traveling to sweden was in response to the district court's erroneous order i mean she did what a mother would do under those circumstances which was when the children were sent to sweden she followed in an effort to have custody of the children and that doesn't change the fact that the district court erred in ruling that the children were bitterly resident in sweden when they were not or the fact that the custody  may be shut shifted without the consent of both parents the greater the incentive to try and get the test that was adopted by this court of moses is contrary to what was adopted by the sixth circuit in  moses commands the district court to do and what the district court did was to look at the last neutral settled intent of the parents which in this case was unquestionably sweden and on the issue of accusation for the older child here there were three or four points made by this court in moses an echo of last year by this court and murphy that that show why the district court correctly found that the  four a half year old or forty three fourths year old when he moved here and five year old the time of the hearing child the son what should not be found of an appetite first of all in most of the court held in the absence of a settled parental intent which is under spews there was no settled parental intent to move to los angeles court should be slow to infer from such context at an earlier habitual residence has been abandoned and the court also said the most is the function of a court applying convention is not to determine whether a child is happy where it currently is but whether one parent is seeking unilaterally to alter the status quo with regard to the primary focus of the child's life going back to the purpose of the convention demonstrate no no shared intent to settle in sweden and the district court block some of that evidence so it didn't come in what are we to do with that well i'm not you are not certain that the was her own testimony and she gave that testimony in narrative fashion that she never wanted to stay in sweden but the move from sweden from dubai to sweden falls within a category one at best for the mother and at same swedish company from the time that that they were married to the company that had an office in dubai and then close that office and then he was transferred to sweden his home country and in most is this court said that one of the things you look wanting to go there and they in the court said education business or profession employment all of these are reasons and the course is all that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described settled when so you don't intend to leave your bones there but this is again mr crawley's home country it's the home country of the corporation that he was working for and has been working for through from two thousand and eight or earlier through today certainly through you know on the record through the  date of the hearing in this case and so there was significant proof that that was in fact they're still intent the work the best case scenario for the mother is that this is a category one situation as described moses which is where there is clearly a move self intent by virtue of the job and that sort of thing and they lived there for a year before she was allowed to leave temporarily go by agreement with her husband and in that case the court this court mos says almost always is found that that is a hidden residence the place where even if you say if you take her evidence that it does because value that she had some qualms about going to sweden that's a category one case under yes judge berger says you believe she had a fair trial before the court there's been a lot of things that are were said in the opening brief that that they tried it and where they only presented a few snippets of the testimony to this court we printed the entire trial transcript in our it record excerpts and i to the tourney for one and well have the other present but again she was not present we don't know the record doesn't reflect why she was not present but there was a court reporter there there was nothing of substance about the case discussed it was a simply scheduling hearing and then there was nothing that went into any of the issues in the petition whatsoever so they read that that transcript i think stands on its own that that there was you know the judge has a hearing  the perjury she was she wasn't back but again days yes your honor she there were there were some strong comments made by the district court because the district court wasn't formed there was a lot of uncertainty as to where the passports that might be easier for he actually gave her help in terms of trying to help her cross examine her this and you know the mother's counsel suggest that that was him parading her or writing her for representing herself when in fact was trying to help or form questions versus she began to testify instead of asking questions of her husband when she was cross examining her and she's not a you know the typical pro se litigant because she does have a law degree from the university of virginia but somewhere in in a brusque fashion but did not impede mrs kronborg from pursuing her case in fact she significantly presented a case and made her argument and told him at one point judge you know you can't do this what i think you're about to do because i've talked to every hague lawyer in town and they tell me because my daughter was born here that you can't order her back so this against was not some unknowing pro se litigant to got taken completely off again he told her you couldn't you couldn't present evidence on vigil residency on on on what the petitioners presented and you can present evidence on your from your defenses so your honor i don't think it's fair to say to this district court judge that he who did the petitioner for and she wasn't precluded from calling mr ker she didn't call him he was he was there the record doesn't say you may not call this witness so to me it's ambiguous at best as to whether he precluded a single witness from being called  again let me ask you since your time's running short regarding p s a v e r s e any case that stands for the proposition you can acquire a habitual residence without a physical presence in that country yes run we've started to the french case ruling number ten fifteen what about united states case well i would suggest to you that if you apply moses to the factual scenario here then you come up with the conclusion because you're arguing that this is a different factual situation well and i don't it's not it is applying the existing law to a new factual situation but the beauty of the moses test is that it it both provides a delegate to the purpose of the convention which is to preclude behavior that such as well occurred in this case and it also gives the flexibility of applying it to many different factual scenarios so you look at you're focusing on what the with the parents intent is if the parents and centers that they have a settled intent to be in sweden and there's only a permission to travel abroad then you for a period of time to give birth then then there's been no change in that and the fact that the the child is not physically present and therefore can't be used is again returned to in the usual sense of the word return that's not reading the convention the way some tend to be because the convention doesn't define capital residence and it says don't use it  the shared mutual intent of the parents because otherwise you can have a situation like this you can incentivize mothers to to do this to go give birth to a child elsewhere under the guise of i'll be more comfortable applied in this case that their shared children gent was sweden and that therefore the child should be returned to sweden even though metaphysically obviously the child has not been to sweden before otherwise your incentive izing mother to do this credibility with irreparably damaged well yes but that's the that's the district courts call the district court before she took the stand had all the materials that were provided he had read everything he understood that she was making these claims size of the court we that these proceedings were going on start what we can advise the court because mean it was my understanding on appeal typically the records closed but i will tell you that there have been proceedings going on that at times mrs colleagues been in sweden a time she's been living in france she's not been here in los angeles where she wanted to move the children to but she's then and  letter why didn't you know while it was going on then we were totally in the dark ok why i bought a car i didn't know that there was a that was an appropriate thing to do i certainly don't we have nothing to hide virtually all of these cases that have described the moses test as simply beginning with parental intent in virtually all of those cases all of them that i'm aware of the child has previously lived in two places and the question is framed as you know which of these places is the habitual residence of the child the right way to view the first step of the moses test as applied to the little girl here in r s c she born in the united states she's only ever been in the united states and the really put it this way often people try to disprove a bitch will residence in one country by proving that it has arisen in another so that's a l c in this case we're arguing that he acclimated in the united states and that's why he was not habitually resident in sweden but that's not the only way to prove a to have a profound effect on their lives well your honor the simple answer is that a fetus in utero is not a child under the pig convention and some forty eight or forty nine states of adopted for parents moving between different states in the united states courts have repeatedly refused to identify a home state for a fetus or you know a skier and his girlfriend or flaying had a relationship in california and she's seven months pregnant decided to move to new york and roll in columbia university so seven months pregnant she moves to new york he has no say in that two days after the child is born she files for you know custody and support in new york the court rules that new york is the child's home state so only state the child has been to and is born in and refuses to penalize the mother for her decision to move while pregnant so the fact that a fetus is not a child under the hague convention really isn't that different from a fetus not being a child under the uniform child custody act which there's substantial president about and so lastly on the issue of the mother's credibility being irreparably damaged if you don't this isn't the record it's an e r two fifty two and the discussion goes on to two fifty four if what the district court is actually talking about there he had been asking her questions she'd been answering he didn't like all the answers but what they go on to discuss there is a piece of evidence which was the father's consent note which that's in the record here are want to levon and the father had written a consent note to travel with a l c to the united states and the district court says you know in the alternative universe that i live in there's another version of this note a version limits the period of time to four to six months and he says i saw it i saw it and the hunting around in the record it doesn't exist and it later came out counsel for for the father admitted that another version of the letter like that didn't exist in the records so what you have any are two fifty two is the district court saying your credibility has been irreparably damaged and that is a thing that the district court was not correct about and that supports remand if necessary to a different district judge in this case so for these reasons again we would ask