morning morning you please a court jennifer a lot of with on a night on behalf of mr roky fernandez the appellant in this case and the father of the children this is a case about a repeat offender under the hague convention this case is unique in that the mother ignored it prior federal court order and for a second time abducted the children and took them out of panama there had been place of at the residence despite a no exit order in place letter i but because that would that would explain that that she she she anticipated being stopped at the border your honor and that would have to show some consent ye art in this case in two thousand and nine the mother abducted the children a first time and brought them to missouri and a federal court told her that she had to return to panama so that the custody proceedings can return and again this case is unique because the mother knew that she was not allowed to leave the country and she left while the custody proceedings between miss her and mr rocky fernandez were ongoing for the children how how soon after he learned your client learned that they were in tampa did he file his lawsuit your honor he found out that the children were in tampa i believe a month before filing his petition and it took a long time for the authorities to the state department and he didn't have a private lawyer at that point doing the searching right no your honor and that my client's financial position would not allow him to be represented otherwise and pro  bono he did not have a investigator until then he first searched the children in panama because of the no exit order he believed that the children could not have left the country so he testified in great length that he was looking for the children in panama for almost eleven months until the panamanian authorities told him that the mother had crossed the border and that's when he made the application to the state department as a central authority under the tree  the convention yes your honor and the state it took almost a year for the state department to be able to locate the children in the united states the other question i have out here is under what into the country right now because of a prior conviction that occurred i think when he was a teenager is that correct that is correct your honor that with how old is he now roughly he's roughly almost forty years old and this conviction happened when he was sixteen or sixteen  our understanding your honor is that the visa will be difficult to obtain without a judgment from the court it's hard for us we cannot apply for the visa as of right now but that was the information that was told to us by an immigration than a year has passed and therefore they are entitled to the well settled defense or exception correct our main position that is correct your honor our main position is regardless of whether the children are well settled this co authority to return of the children and because of the mother's conduct here that is a courageous the children should be returned regardless of whether they're a well sidled you but you for your primary argument is that they were not well settled here but it's also true your honor that is an alternative argument because the trial court in our opinion has mistakenly taken into account the factors not all of the factors that we think should have been taken into account including the children's ties to panama and that that that raises an interesting question because the case in the second circuit did not list that as one of the factors and that seems to be a case that has been followed in various courts but not in the fifth circuit the fifth circuit has a different rule as the circuit says take says that the  ties to the head be chilled residents should be taken into consideration and we urge you to adopt that concurring opinion in addition to that there is there is and i'll be asking your adversary about this there is a state department language to effect and that in hernandez the court said that you know that's entitle to deference your honor that is absolutely correct the state department has stated that the well settled exception should be considered in light of the evidence concerning the time were if we're looking to not only the mothers conduct the second time around but also the children's ties to the other place panama in this case do we take into account the fact that your client misbehaved as well maybe not to the same degree your honor i'm are you referring to what fact in fact that he according to the district court that he contrary to the panamanian court's order took them for a period of two to three months and enroll them in a school somewhere else without notice to the mother honor i don't think that that's a concern that this court should have because those are concerns that the panamanian courts have taken into account and are going to take into account once the custody proceedings resume the parties clearly con like a contentious relationship and there are ongoing custody battle since two thousand and nine the father testified that the mother for example did not bring the children to the visitation place multiple times i know when she testified completely to the contrary that this record did make a finding one way or the other that is correct your honor however the fact is that she knew that she was not allowed to take the children out of the country she knew that the custody proceedings should be resumed in panama and she did it anyways a second time and that order denying the return of the children to panama contravene every single goal that this convention has become the convention's goal is to tear future abductions to allow the home country to make its own custody determination and to favor the problem return of the children and here the result here is simply unconscionable regardless of whether the children are well settled they should be returned to canada but if you if you look at the egregiousness of the condom don't you risk eliminating the exception the well settled exception or the well settled defense whatever you may want to call it i mean it and so at some level it's this i speak only for myself at some level whatever egregiousness test you may be able to have has to stop in favor of the well settled defense or exception right because otherwise you're you're using a common law for lack of a better term egregiousness test to bypass and vitiate a statutory or a treaty based defense or exception so you can take it i don't think it can be the case that if the conduct is really egregious then you wipe out the defenses right that is correct your honor what is not an how do we write this in your favor then if we were to write an opinion in your favor on this issue what do we say about when the well settled defense or exception gives way to the egregiousness of the removing parents conduct well your honor in this case i would say that it's the fact that the mother took the time twice out of the country she essentially used her first case in two thousand and ten as a playbook on how to win the system and that alone should warrant the return of the children now i do agree that the well settled exception is an exception and should apply and we don't deny that the children have been here for a few years and that should be taken into consideration however that is not the only factor here first the mother concealment effort should be taken into consideration the fact that she took them twice out of the country and the fact that the children have ties to panama and that factor was not taken into consideration by the district court at all the children have lived most of panama they have family there they have a father there that have been hasn't been able to speak to them since two thousand and thirteen because of the mother's conduct they have extended family they'd done very well in canada but there is nothing in the record that would suggest that the children would not do just as well as panama that in the united states this is not a situation i take it where there are some sort of trauma associated with returning to the to the home of the  honor my understanding is that the father has a large family and that the grandmother for example used to take care of the children and had a a relationship with the children he has now a wife and others are children so  grandmother live in that house in the same house we were yes or why yes yes your honor and that's one of the reasons why the children were doing well before they had all these ties to panama and the district court completely o ties and though those in conclusion first regardless of whether the children are well settled we ask you to return the children so that the custody proceedings ca it please the court ashley taylor for the apple e christie bailey if i may begin with a comment from counsel that this court has authority to return the children despite a finding that the well settled exception applies i do believe this court has a  the question is what's the standard of review on that authority and if you look to the studio case from the circuit actually in that case to have to do with a mature objection but what the court said in that case is a district court retains discretion not to apply an exception as the court did not hear its decision either way is reviewed only for an abuse of discretion so in this case over a three day hearing over three days of taking evidence the district court made factual findings numerous factual findings apply them to the factors used the case of loss from the circuit as well as the supreme court case of lozano in coming up with which factors to apply the factual findings to and found that the children were well settled she then went on to say i understand that despite this finding i have the discretion to order repatriation anyways and she cited lozano in saying i'm going to choose not to do that because the goal of the convention is not pursued at any cost and in this case she found that the interests of the children outweighed the other interests of the convention is one concern of my colleague on the bench your ass the question of whether or not the egregious actions of the mother would somehow impair the exception and i have another question of a similar nature and that is whether the exception is applied in a case where there is no real problem with sending the kids back in terms of their physical wellbeing or their mental wellbeing or anything of that sor doesn't the exception then kind of weaken the treaty i mean isn't this a safe harbor now wouldn't couldn't be a safe harbor for for abductors if they can conceal the children keep them keep them is the word concealment what the word concealment when you have it it's either concealment or not but it it is no doubt no doubt that the father acted quickly as quickly as the father could given the information that that that the father had at any given time you know she wasn't about to call up the father and say got them in in tampa now do something and so she didn't do that but it took him a while to find them and if that in these circumstances where an abductor can do that and and and have the clock run for more than a year to get to get the defense but then after that to help establish it isn't  doesn't that weaken the effectiveness of the convention which is designed to return children promptly according to the findings of fact by the according to the purpose in the in the treaty and also in the legislation yes your honor however by the four circuit a now calla with that in mind then why would the exception ever apply because for the exception to ever come into it to be able to be used you have to first establish a prime official case which means there's been wrong form of all so there's been this evidence that i could find was the father testifying of who he lives with so as far as the ties to panama the father did not present evidence for the court to rely on those ties to make a finding as to whether returning to panama would be harmful or not you agree that the circumstances and relevant to the consideration of the also i think that the totality of the circumstances is what you look at i think it could be a relevant factor depending on the case and it is yes yes  yes sure however i think that lozano says the most important factor is the children's connection to their new environment so you take into account the security in the new environment the permanence of the new environment and the stability in the new environment and by doing that you go into the various factors of for example in this case you know are the children attending school the mother the court did find the mother did not conceal the children she had them registered in their names she came to the temple but the father didn't i mean the same time the district court found that the father was diligent and diligent in looking for them i'm not sure that's the word she used but i mean he she said judge covington said he had not abandoned his parental responsibilities and seemed to acknowledge that he was busy looking for them yes your honor but she did say that she was concerned with his timeline because while i understand counsel said she he doesn't have the financial resources he had multiple attorneys in panama and the mother was registered with the d the mother was registered she filed her tax returns this is not a case where she was moving the children around and it was hard to find them i mean how do you know where to begin looking that's the whole united you know how do you know where to begin looking and so he never reached out there's never been evidence presented that he even e mailed the mother or had anybody e mail the mother where she was her email address she testified it was an refuted her e mail address never changed and not once did we see correspondence and where are you know it was that she e mail him no doubt where they were now her whether she intended to keep them concealed she was not going to help him find them right so one of the comments by opposing counsel is that when she left she knew she could not leave and there was not a finding by the court on not well there's a forged letter is that actually the court stated while she would not put it in her written findings the court stated volume three page fifty five of her ruling that she's going to find that that she did not know about the letter that miss been around about and that the letter that was obtained by the father with immigration but didn't she present a letter that's on her exit to say that the father had agreed that's the same letter ok what did the district in the district court said right before she asked me to give my closing she said i'm going to find that she did not present that letter and i need to pull the record to give it the exact language but she did  did she said that she said i'm going to say that was her statement i'm going to say that she did not present that letter that wasn't but that find its way to the when i had no written or no she did not ok and so is i missed that then i didn't i didn't see that that comment it's on on page fifty five line twenty five and then it goes into page twenty six are going to have if i could to the well settled exception it shouldn't really driven by the idea of where the children in terms of until the custody is worked out where the children can be in a safe productive loving environment isn't that really the and that's why you balance if you take the hernandez case you look at the at th the home the home country as well as the the new country to to to make that kind of assessment and i blues are no focuses because if i can just finish by here because the scales really are tipped in favor of return by this whole convention so yes your honor however lozano comes in and says the well sort of exceptions purpose really is the new environment it's not it's not tipping back from the old environment to the new environment it's not that's that's that's supposed to be balancing the children's current environment and how they're doing in their current new environment and i think it comes down to what harm is going to be got on the children by by removing them again by taking them when they've now been settled assess what harm that might be apart from having to pay for a plane ticket and then fly for two or two hours that that would sort of invite consideration of what they can situation would be impaneled i think i know i think that the harm is focused on taking a child who has established deep connections to a it current environment which is why i believe the years important has established those connections by taking a child and removing them again regardless of what the circumstances are at home in terms of upsetting the kids or moving them to a new to a new place i do think that that's relevant in the sense of upsetting the kids but the problem is once they become once well settled once that year passes the purpose is to frankly not do more harm to the children and the court is supposed to come in and way whether doing more harm to the children outweighs pursuing the goals of the convention and in this case the court shows that the well settled exception applied there was no factual findings that are clearly erroneous she applied the findings to the factors and then she chose to exercise her discretion or to not exercise her discretion and not send them back i think she very well could have but i think that was the district court's deference to do that or not do that based on the evidence in front of her let me ask you a general question the language of the convention uses the words now settled in its new environment where did the well settled part of it come from i believe through case on your you know where no i did not i do not know the first i don't know the first time it came out but it's been used continuously throughout the different service do you think that makes a difference or you think it's just nomenclature that is just descriptive term but it really does through the tally of the circumstances approach try to do justice to the language of the convention itself i think it's trying to do justice because i think the term that is really important  settled whether it's now well it's just whether the children are settled whether they've made these connections that do have to be supported by the evidence saying that there are multiple connections there are new environment but i think that the point and the of the exception is to look at what the children's connections are well you know this case reminds me of why it's a good thing that i'm in a federal court and don't have to do custody dispute but when you're thinking about the well being of the the children you know it's i mean my idea is that children need both of their parents and whether they how much they realize that it age eight  remains to be seen but as they get older i think that will become clearer to them so should we throw into the mix at all that when the children are here in the united states their father can't physically be present with them but when they're present and when they're in panama both of their parents can be present there's two factors that come into that one i think whether both parents can be present or in panama or not i think it will be if the children are sent back i think that there's criminal proceedings that are pending there so i'm not sure that the mother will be available but with that said also this so that's that's i mean if you think that's a good argument for why they should stay it mean the father has the same argument for why they should come back well i think that so if the court affirms the district court's decision that doesn't mean that the father doesn't have the ability to petition for custody in the united states to petition united states court all that says is that the united states court in florida would have the jurisdiction to make the decision of what the custodial rights are what the timesharing is the court in florida would have the jurisdiction to say that the children need to move or i'm sorry that the children need to go to panama to visit the father well let me ask you this the district court ended up by saying that the florida state court would have jurisdiction but it had no business saying that right whether a florida circuit court has jurisdiction to exclusion of a panamanian court on custody is not a matter for the district court to decide in the hague convention i believe it will it references it gets into i cora which has to do with the fact that the children have been in the state of florida at least six months so i do believe that the state of florida would have jurisdiction over this case if the did not necessarily to the exclusion of a panamanian court a panamanian court could well decide to the children were illegally taken from here and we're going to continue custody proceeding session and do it on its own two  and summary based on the numerous factual findings i believe that the overwhelming evidence supported that the factual findings met each factor and there's been no showing that the factual findings were clear air the court chose not to exercise her discretion she had a very thorough well reasoned order on why she did not do that and therefore we asked this court to affirm the district court ruling thank  just a few points on rebuttal first the court in rule is this is to new in two thousand and four this court found that the district court's finding of facts should be reviewed for clearer however the ultimate conclusions that the children are well settled  reviewed and then moving on to the forgery of the letter the district court did not make any findings as to the forgery of the letter although i trial we believe that there is overwhelming evidence that the letter was forge your colleague says that the district court at least made a passing reference to believing that the mother had not submitted the the so called forged letter the district court in your recollection make any such statement or not i don't have recollection of that however we do know that the mother testified that she did not have the authorisation of the father when she crossed the border and we've also presented evidence that the pena many an immigration requires a signed signature from the parent when crossing the border if the parent is not present in the case of the letter come into to your client's hands i mean through the panama immigration authorities right yes your honor one of the attorneys that he hired in panama petitioned to obtain that letter in that letter aloud to the panamanian courts to recognize that the children had crossed the border because until then it was thought that the children were still in panama and  court court determination having been conveyed to the to the panamanian immigration your honor i is your question if the exit order was in place at the time she crossed the border by well there was an order at the time in place at the time she crossed the border right yes your honor that actually was found that was put in place in january two thousand and thirteen and she crossed the border in february of two thousand and four that's the basis upon which you're saying that they needed to have proof consent your honor that is correct however most countries including panama when a single parent travels to an outside country without the other parent they need written signature that is very common in most countries  even absent any dispute or any court intervention yes or no and that's my understanding ok i think that's what judge walker was asking you whether or not there's panamanian law to that effect absent absent the exit order in this case yes your honor and that is in one of our  we provided one of the plaintiff's exhibit actually is a part of a website of panamanian law that requires traveling parents to have that signature and that is the case for every single parent that travels alone  and again we're not asking even i'm sorry to digress but even in the case of a married couple when one parent is traveling to see relatives somewhere else i believe that's the case your honor yes and it's the case in a lot of countries i mean it's not the case here you're talking about international international traveling yes your honor that's the case in the united states a lot of countries say you're leaving too yes it depends on the country you are leaving to and there are laws  pain of panama has a law that says you are a single parent traveling with that's what i mean the single parent but i'm talking it doesn't apply across the board rate in other words if you're a married couple and the parents of the two spouses live in different countries and one parent is taking a one week vacation to a neighboring country to see grandparents is it your understanding that that panamanian provision applies in that scenario to yester honor and catch covington testified  testified but discussed that at trial that she also had to do that when she was traveling outside the countries were not the couple here was not married as i correct you know they were never married and again we're not asking you to rewrite the treaty we're asking you to find that under these particular facts that the children should be returned so that the custody proceedings that started in two thousand and nine between the parties can resume thank you you thank