good morning mr all slender come right up again good morning speak with us thank you a good morning made it please the court my name is charles auslander on here on behalf of the appellant veronica  this case is about entitlement to an award of fees under the international child abduction remedies act more specifically at least in the first issue the first instance the first issue is how to construe the statute that minding that i'm not for to not quoting it expressly that it basically says necessary expenses should be awarded to the prevailing party unless deemed clearly was entitled to an attorney's fee plus it's determined that an award is clearly inappropriate yes that is the statutory standard and in our view the court should align itself with the decisions of the first and particularly the second circuit and seen which essentially i determined that the phrase clearly inappropriate imports into the statutory  look at the way congress framed this fee shifting provision very interesting and different from almost any other the shifting provision you can find it says any court ordering the return of a child pursuant to an action brought under section nine zero zero three of those title shall order the respond to pay blah blah blah doesn't say may call it would should the command of congress is not  clear isabel and the only exception would be if the court ordered farin that the award not only was inappropriate but had to be really an appropriate they use the adverb clearly inappropriate so the district court is boxed in and cap and doesn't mean he has no discretion but it isn't rod robust discretion that we might normally accord the district court in deciding whether to make the loser pay here you've got unless you clearly find it was inappropriate so the discretion is limited is it not by the text itself of the statute first i would say not that you need my agreement  honor but in writing the briefs i certainly combed other statutes in order to try to determine whether there was going to kin to this and there's not one immediately a can that that said however  i would i would urge that the court should provide guidance because certainly and what the court seemed to be saying in the second circuit is that the the equitable principles that are import mean in essence that if the parent to remove the child had an objective leave a reasonable basis and factor a lot to do so then the equitable then equity can attach and in fact defeat the mandate of the word shall in the statute so that in essence what is saying is it's worked through your honor the palace says that that the court just conducted and said well it does say shall on the one hand inappropriate having said that we review the district court decision only for abuse of discretion right abuse of discretion which i would urge on the court of amounts to a a hybrid  standard here there is something close to go not always a vote as de novo when it comes to the propriety of the of the the application of law to the facts and then of course the clearly erroneous standard applies as to the facts themselves and so here my argument is that number one the standard was not clearly the standard of law was not clearly applied by the district court  czech republic rather the court focused on two elements of the fact that are involving the departure and the subsequent filing in the united states of the a but wasn't there a finding of bad faith well there was a there was a a finding and a statement that her good faith was allotted abide by those two elements the judge rejected the trial judge rejected the the testimony of your client and accepted the other's credibility and that was affirmed by this court when it heard the underlying merits of the case that's or don't we have i mean why isn't that enough for a district court to be well within its ambit of discretion to say it wasn't clearly an approach that you haven't established that it's clearly inappropriate well my argument your honor is that the the two features of the record that were focused upon the the security characterization of the departure and then later filing a custody petition and then withdrawing it of course which is not meant mentioned but that those two elements are are clearly explainable one is that there's really no question in this record that and there were there were there was a significant amount of testimony of course but that my client feared the child's with the child's father and what she might what what might occur in terms of her departure a departure that she believes in the believe that she could do because she believed at the time and again hindsight is twenty twenty of course but at the time she believed that the child was essentially stateless that there was not a country of which she was a bit silly resident and that mr rath was not exercising custodial right guess what i'm asking is when we accepting that we have to review this review some discretion judge married a said on page two of this opinion and i quote mark housekeeper argues that a purported good faith belief in the lawful a more favorable resolution in a florida court after the couple's relations ended and so on but the judge and judges rejecting it because he finds no good faith he finds the opposite here i just want to know why that's an abuse of discretion as a reason to reach the conclusion that the fee shifting as appropriate in our view it is an abuse of discretion because ozil teen standard the it should be a review of the record as a whole it should not be a and exactly a couple of examples that really are not indicative of the record as a whole and so that was really the urgency of the position is that one cannot effectively without abusing one's discretion clear the need to argue that one cannot effectively pick elements of the record  without analyzing the record as a whole would not be more compelling if we didn't already have a ruling on the warning determinations on round one your honor i'd argue against that chiefly because the issue of habitual residence and wrongful removal under the hague convention and the significant law of this circuit and otherwise doesn't involve alternately in many cases and certainly doesn't equate with good or bad faith of the individual who does the removing so that the finding of facts for one legal purpose is not the equivalent of finding the facts for whether or not in retrospect or before that finding was made th the parent doing the removing had a was clearly and reasonable in her understanding of the facts or the law and this record in our view again without contesting the facts that were found for purposes of the vi rephrase my question the problem i'm having is it doesn't look to me that i can revisit that question dunno over at this point i had a ruling from the district court it went up to the circuit the circuit said amen and a firmed and it seems to me that i'm not in a position where i can reconsider the findings and the ultimate conclusion that jones was credible and smith was not and smith didn't act in good faith i don't see how i can revisit that when the law of the case seems to me to have resolved that and i don't see any exception in so many words more than mine there was a credibility determination after a lengthy trial and we chose to believe that certain aspects of this very complex factual record  reasons for its view of the evidence on imported disputed important disputed issues including whether they were living together we owe the district courts assessment great deference when the trial court rules on is  the evidence our own credibility there can virtually never be clear era in the finding deference is warranted especially here because mr erath asserted first hand knowledge of the many relevant facts that's what the circuits wrecked and contextually your honor the determination regarding credibility was associated with very particular lies facts highly contested we did not prevail mr r prevailed highly contested facts regarding the the permanency of the relationship particularly in terms of the residential living together component of the co habiting component of it and so  our our contention is that in the first instance law of the case with lie to be to the habitual residence determination based upon those facts but there is a distinct distinct determination to be made regarding the circumstances not not a and so the questions in a sense are twofold one is addressing the court of appeals issue which i just tried to do and then the second issue is whether or not that standard was applied and whether it was applied erroneous lior an abuse of discretion by the district court in focusing only on two elements of the record to find that there was an object it please the court my name is joseph kennedy i'm here on behalf of be happily mr jan wrath as your honor noted nine zero zero seven three says that the fees and it clear that that section essentially shifts the burden to the losing respondent to show that she should not be awarded and so it is the burden of require clearly indicates that there is a requirement of the responding party to show that the fee should not be awarded let me ask the question this way the second circuit says old following basically the first circuits reading that clearly an appropriate allows the district court broad discretion  you may be right even if we read the district court as having broad discretion but as i look at the statute it looks to me like the district court's discretion is not broad but it's now or and it's now or first because the statute says you shower award and the only exception is if you find that it's clearly inappropriate so the district court has the discretion to rebut the strong presumption of shifting the fee but there's got to be a whole bunch of evidence to do it isn't the district court facing a more limited set of review under this statute than might otherwise obtain and few shifting  certainly honor that's exactly right you know this i'm just asking whether the second circuit's got the right balance you know your own eyes we've never said anything about exactly what this statute means the first circuit has  i think you know i don't think i don't read the case as charting any really new territory it's it's recognising that there is a presumption and then a way out but the also seen cases in opposite i mean what you have in that case is a a mother who is relying upon these turkish court orders which the court acknowledges at least implied strongly that the mother could relocate to the united states and so yeah she is wrong and the corps ultimately chooses to return the child based upon the application of the law but it does note that the mother was essentially trying to follow the orders of the turkish courts and it also observes that the the husband there was was maybe not playing fair because he did try to pursue a hague case in turkey and then a was essentially trying to take advantage of the circumstance and so i think i think that the course in all teen is able to take a look at the record and say the law requires the removal of the child but there are some factors here that mitigate against the award of fees now in this particular case the argument that mis presenting is very different and i think in this case she just wants headlong into the standard of review because what you have here is miss mccroskey is not contesting the amount of fees she's really record that would show that the award would be clearly inappropriate now that record is the essentially the findings that the differ court made you've got to be able to point to that this does not allow to reach down into the trial and pull up contested issues that have already been affirmed on appeal and then say but if you take a look at the evidence in the light most favorable to me notwithstanding the fact  was these issues are resolved against me that you can make out some mechanism of good faith now that's not meeting a an abuse of discretion standard and i would point out the other case that the we could not look at this record and say that determination that she had a mistake that she did not have a mistake and a reasonable belief that she could return to the united states we can look at this record as there were  clearly erroneous determination on the part of the district court well i think to be a real problem with that you want to because see in this particular case the entire case turned upon whether the parties hadn't settled intent to raise the child in the czech republic and in order to do that the parties presented divergent factual circumstances and you know it and what happens is miss moore   declaration of intent was only a an indicator of the parties both of their desire to have ellen are the child have dual citizenship similarly the court doesn't make any specific finding that the parties delayed vaccination because there was an intention to read law to raise the child in the czech republic on the contrary what the court finds over and over again despite all the items that miss more costly raises is that from the birth of the child all the way up until the child until his nine month until he's nine months old i think it's january twenty sixt until the party separation they shared and intend to raise the child in the czech republic now the court cannot have arrived at that determination if it is now going to believe that all along miss moore cos he really had a good faith belief that she was going to always live in the united states so he so you could not find that they intended to have the char raised in the czech republic in the czech republic and at the same time find the attorneys these are clearly inappropriate it would be in under the way that this fact pattern lays out and the argument that mr mccarthy brings your honor was that awarding fees might affect the ability to care for a child was any of that raised in this case none of those issues you raise a matter of fact to the kinds of equitable issues on the court sees the fees have already been bonded there is no issue with payment there's no issue with support of the child so so you know the only issue and that's really the way this appeal is is is presented the issue is essentially a rehashing of the factual  colleague argues that even though she lost on the merits the case was a close one wasn't a slam dunk and therefore given the in with an issue like you see an oval ten or an issue like you see in sauerkraut or where the reason why she's running and leaving i believe it's singapore is because she was being abused ok and so there  some mitigating circumstances that can be looked at but the reason why miss moore kosky ones into such a difficult time here is because she's coming to the court and saying look here are some facts which you ought to look at in the light most favorable to me but the problem is that the they district court has already passed on those facts so if this court is going to take a look at those very same facts and say yes the declaration of intent looks like she could have believed that she was going to be able to return to the to the united states raised the child the problem and that is directly contrary to what the dis one party did not proceed in good faith the district court affirmed that and the circuit affirmed that and i'm simply asking whether that's open for review or whether that's beyond our pale at this point in looking at the fee shifting well your honor certainly it's our position that the factual findings are ensconced in the case they those are the factual findings from which the court is confined ok so that's law of the case you say that binds us now that's correct we can revisit that it have to start with that and then ask whether the determination amounted to an abuse of discretion well i think even if know clearly those findings are going to be supported by evidence so any which way you want to slice it the the findings of the district court represent the universe from which  point to elements in the record that would show that would be an reasonable to award the fees she hasn't done that also makes the argument that those findings were made in order to support the habitual residence issue alone your honor those findings they went to the issue habitual residence but those findings are the findings that were found by the disher court and the with the findings that the district court ally's upon in order to determine whether or not it's going to award fees so let as i indicated before even if what i am i argue that this is a of the case but even if that wasn't the case you still have a circumstance where you have to show clear error and a district court relying upon its previous findings which are not contested that they they are they have been affirm  an award of attorney's fees is clearly appropriate in this case because i'm finding that there was bad faith with regard to rip biju or other residents issue i don't think that the burden is it was actually presented like that i think what happens is the court says we are required to award fees unless we can show that the fees would be clearly inappropriate and she hasn't done that and so with that we would ask for the court to affirm the opinion of the district  your honor a few things probably too many for for rebuttal of do my best one is that the is there anything other than mistake of law that you can rely upon in order  to argue that the award of attorney's fees is clearly inappropriate anything else yes your honor because what we're arguing as to those two elements that the district court found in this is fear order in live good faith we're arguing in our briefs we hope persuasively that there were there were logical reasons quite apart from anything related to have the the number one this is routine travel is not circuitous travel from prague to munich which is sort of like taking taking a drive from north miami to to hobby each international airport to get the the flight you want is is fairly routine it's nothing it's nothing circuitous going to london to meet with meet on business  there and then flying to the united states with your child from there is not not circuitous the number one we do contest that characterization and doubt is so let's talk about what you're doing so that's a lot of proposition of the law now that you are koski did not proceed in good faith regarding the lawfulness of the removal of the child you say that finding as clear a do i have that right  yes but just to tinker with what your honor just said and i'm just reading from the trial court opinion the trial judge says i'm going to read exactly what his words were first mark kosky argues or read this before good faith belief in the lawfulness of an l r's removal renders an attorney's feet clearly inappropriate in this action that stating your argument he answers it this way he says in fact circuitous nature of mark our skis return to the united states suggests an intent to abscond with l and r and he doesn't rest on that and then he supports it saying several of them are council statements confirm that she attempted to seek a more favorable resolution in a florida florida state court after the couple's relationship and that he cites those in support of his finding that your client did not proceed in good faith but the trial judge plainly says no good faith here and you're challenging that and you're saying that's clear error i do i have that right your honor and can i think i'm compelled by the standard of review and this is of putting aside all the discussion which i think is legally inaccurate as to law the chase and the right knowing to say i'm holding an aside any law of the case issue has just been talking about as to the fee thing doesn't the judge make a finding and don't you have to say that the finding of fact is clear error in order to prevail we make too but to have that right in order for you to prevail you've got to say this was clearer and i am arguing in fact that those two elements are both factually erroneous they were clear error as to as to drawing the conclusion that her  that she was acting in bad faith regarding a bitch of a residence by virtue of those two facts findings because those two facts findings are not not actually heard in this record as we argued in the briefs a very lengthy footnote in part in the reply brief unfortunately too lengthy perhaps but that's correct your honor i am arguing that those two factual elements though i do not believe overall in the record those would suffice to we re larded the brief with with facts with respect to that in terms of the in terms of the arguments we made and addition in addition as to the custody petition that was filed we  argued that factually is more cost the found herself in the united she she came to the united states with the child with no formal records as to custody obtained advice of counsel filed a custody petition and then in fact as soon as the hague petition was filed by mr rath she withdrew the custody petition in fact allowing him to go forward with with his let's say competing custody petition in the czech republic so our argument is is yes that there was a there were factual explanations that are sound for both of those things both of those episodes apart from the the  characterization or conclusion regarding them that they implicate a lack of good faith by ms meagher kosky in removing the child because in fact she believed that based upon this entire record that she did have a reasonable basis for removing the child from the czech republic that the czech republic was not to her understanding hindsight being twenty twentieth's sighed based upon the rulings to her understanding factually she did not factually believe that the czech republic was the child's official residence and so my argument to your honor is multi tiered one is that there is no law of the case here ozil teen says fairly bluntly on different facts but fairly bluntly that if the removing party had a reasonable basis for the removal that is a equitable foundation for not ranting fees for finding the fees or to leave it clearly inappropriate that's that's the position of the second circuit we don't have a clear analysis we do not have analysis from in published or non published form from this court regarding that the second argument so that it i'm really not faulting the district court for not applying a standard that was not has not been clearly enunciated yet by as precedent by this court but i am saying that the overall application of that of of ozil teen to these facts would demonstrate that despite the ultimate finding regarding habitual residence that there was a reasonable basis in fact and understanding in law by mismarked hosty to remove the child so that law the case does not apply it's a different issue and there was again dramatic evidence to bolster that reasonable believe the declaration of intent yes for purposes of habitual residence the magistrate judge concluded that it was about dual citizenship but it does say on its face that it's in the best interests of my son to be a citizen of the united states to grow up experiencing american culture and knowing the english language that declaration was executed noted down so if you could sort of bring there there is no law the case there was a reasonable basis for in fact and law from is more cost to remove the child and we would urge as well that under the case law he cited of this circuit there was no basis for