so good morning your honour's thank you for taking this case on such an expedited schedule we appreciate that the case is an interesting case it's an important case in th circuit and frankly across the country our sense is that it presents a question that if it's not a one of them pression very nearly one a first impression at least when it comes to published opinions in this in the circuit i'd like to acknowledge that it's been a long week for you all we're the last or the last argument and don't work today our full attention ok i appreciate that i would like to if i could begin slightly in orthodox fashion by fixing a few sites in our belief the first one i have is in our opening brief on page twenty five there are some record sites and at the end of the carry over paragraph a couple of those sites just don't apply and they're just wrong and i would i would add a site which is your four forty five take out the site to one seventy four of the of the record preparing to go to italy and make a go of it as a family in italy the next problem we have with some sites are our case sites and it's on page forty nine there are some the and then the last the last sentence of the paragraph before heading be on page forty nine again that's that's a holder site and it should be holder three ninety two f third at one zero one six for the first site and then the second one is it at one four one zero one four and then the one that is a most is there some reason why you didn't submit this in writing this is pretty unusual yeah there is a reason i didn't find until i started reading through more carefully in preparation for the argument and i apologize for that your apology is accepted i just one more or i go ahead and this is this is the last one and there is a sense on page fifty one we say that this court has has and the reason that this case is so important in our sense is that it's important is because it it it gives the court an opportunity to look at this issue in a mature residents of newborns especially and our and our  n it's a it's a newborn that's born under a cloud of disagreement about where have vidual residence will be my my reading of the briefs would indicate that i don't see many issues that aren't covered i don't see many issues that i need to we characterize here today i'm more than happy to take questions well i guess for the obvious reason that a newborn doesn't yet have the cognitive abilities to make that determination what's wrong with the case law that suggests we look to the shared intent of the parents in answering that question at least until the child reaches the age when he or she can decide for themselves i don't think there's anything wrong with looking to the shared intent of the parents i think the problem we have in this case is we don't believe there was a finding of shared intent at least in the october two thousand and ten period i thought we had a finding by the district court that the shared intent was formed right after the birth when the plan was made to give italy  trial shot but to do all the steps that ms hayes undertook to establish links to the united states if i can use that term well that's the thrust of our first argument our first attack on the district court decision below that there really isn't a finding of shared intent there is certainly a finding of settled intent on behalf of ms hayes but the court was careful and we point this out in our reply brief that if you look in vain for a passage in the in the district court's decision where the court finds shared settled intent the court sets up the argument as a search for said shared settled intent and frankly we don't take issue with that with the court's decision that mr ikea didn't prove shared settled intent for italy is well we're not we're not going that that far with it we're just saying there was no finding in the district court that there was shared settled intent that united states all i'm looking at  concede that it's set up correctly how can i assume he did it wrong if he cites two of the correct is your argument that his factual findings don't support his legal conclusion my argument is will two fold one he didn't make a finding that was necessary which is shared settlement and he made a finding of settled intent on behalf of one of the parents and my second argument is that he did if you did make a finding of shared several intent that it's clearly erroneous given another finding that he made that the no actually did have an intent to go something earlier in your argument i want to circle back if i could because they think it's important you said there may be a question of first impression here and you alluded to the fact that you thought that might be the case because this is an infant  test what's the what's the first impression part of this case is that the age of the child the first impression part is is alluded to in the case of the unpublished decision and that we cited for its persuasive value obviously not for its presidential which and judge john mentioned it as well what do you do with with if the inquiry under the convention is to look at the have it your residence of the child because you want to protect those interests what do you do with an infant yes but but but that's why the moses test and the murphy test are some port and i'm sure it's why you use the phrase born under a cloud of that because that comes straight from the un published decision it does but to judge tolman's point babies are all born hunter cloud i'm right they don't they don't have their own intent and furthermore i think more to the point mozes and and murphy that line of cases in the ninth circuit really focuses on the parents intent right the parents shared settled intent yes it does ok so why is there what's the first impression part of this that causes us to to need to stretch we don't have shared something so if that's the case then it's not a legal issue and that's one kind of pony and then i think you're really going to a factual issue that you think was inadequately established in the chocolate is that right or or conclusion i should say that right that is correct ok yes your honor i have a point we when we have said so that we believe it's incompatible with the other finding the judge made that in two thousand and ten mr pitt ikea was actually showing forth his intent that it'll be the pages ten and eleven where he finds first that your client failed to prove by a preponderance of the evidence that the intention was for habits will residence in italy makes an adverse credibility finding on the top of page eleven with regard to your client's testimony he makes a specific credibility finding as to the viability of ms hayes as testimony and further finds that her testimony was corroborate other witnesses in the case and then find the last full sentence or the last paragraph above the footnote on your eleven that the court finds the evidence shows the settled intention was for all residents to be the united states and that's after he cited the case law talking about shared settled in town well how can i not read that as the court applying the facts to the law and rendering judgment finding that the habitual residence was first reason you can read it as not addressing the shared aspect of that is back on ten the court makes a finding that mr testimony that i it was always intended that the child would essentially establish a bitch will residence in italy all i can do is work with what the court said and the court said i find that there was mr but i think you had the intention that italy be a vigil resident on ten well and then at the bottom of your eleven when you when you mention what the court summed up with it's to us it's plain that the court did not use the word shared the court says so settled intention ok so i'm looking at ten and eleven also i don't big blue box written around drawn around this says the court finds petitioners failed to prove by a preponderance of the evidence that the  mark that is my that is so the whole case turns on the absence of the word shared it does not your own i want to make that clear well if the court had inserted the word shared in the sentence that judge kristen just read to you with that conclusively established that that was indeed the holding of the court that would have conclusively established that the court found yes so the whole case does turn on or does our president bark i'm sorry to interrupt i followed ok what i would say is that it does not initial acquisition of a bit your residence in the united states as well now for purposes of this specter and part of my argument then the question is did the court actually look at all the record evidence and in a mixed question of law in fact scenario did the court find and make the proper finding on a vigil residents that are claim is that he did not that judge lodge did not sufficiently weigh the evidence didn't even address what we see as part of the most important part of that evidence which is this expert assessment that was done in italy doesn't address the parties the italian courts counsel for the parties everyone's unanimous acknowledgement in two thousand and thirteen to two thousand and sixteen in march of two thousand and sixteen that a bitch will residents of this child was italy but i thought the court said the reason that there's a distinction between the meaning of that phrase under the  eighty one convention and the meaning under the convention that controls in this case the court certainly says that the court gives us no hint as to what the reason well the problem of course is that they didn't define the term in either convention one deals with parental custody all rights the other deals with abduction or removal or retention of children but it is possible that it means something visual residence under the one nine hundred sixty one convention could mean something as simple as where where does the child live right now for an italian court trying to decide a custody case it's possible but there's no reason for us to believe that the same terms should have different meanings across but we've got all the time with congressional statutes that use the same terms but the book but the law means something different in context when used in one statute then it doesn't another i understand that we that we do but we generally have a reason to generally say oh it's a different context and i can think of one reason if you're talking about custody issues presumably the court first has to have jurisdiction over both the parents in resolving who gets the child maybe not and i haven't looked at the sixty one convention that closely but in this case it did right ms ms hayes was the one who initiated the the proceeding and your client was participating in it right correct all i can say judge tallman is that the commentators who have to look at across the conventions that are the result of this conference have said it's a term that has been used for one hundred twenty years and the reason they left it they define it if everybody knows what it means how about putting a provision in the convention that says habitual residence shall mean blah blah blah blah blah i but wait wait wait but moses doesn't do that and the italian order just internally suggests that they've used the term differently counsel i want to give you an opportunity to respond ok e r to ninety eight the italian court concluded that italy was others may please the court i am murray feldman arguing for the apple e d n n michelle hayes this morning in response to the appellants arguments we have the following key points first we don't think this is an issue of first impression this court's publish decisions and moses and murphy the two decisions in holder provide adequate guidance on how to evaluate this issue the facts in this case in the review of judge lodges decision and recognizing that judge crist morning for instance you've been asking a lot of counsel what's your best case on this issue and i couldn't give you a single case and the reason is it's because as the ninth circuit's hague cases note it's always the unique facts and circumstances of each case so there's no one case that fits challenge to the factual determinations in the evaluation of the evidence that judge lodge me made and under the clear air standard of review that applies to that part of this court's review the review of the factual determinations from the district court and as this co the panel's questions they've identified where that is in judge lodge's decision there is record evidence to support that finding even if judge lodge had not made the finding there is enough evidence in the record to support this court making that finding in its review and that the habitual residence arguments that being discussed at the end of appellants argument based on the italian custody proceedings there flipping the required analysis here and those arguments mistake custody jurisdiction habitual residence and these are two distinct concepts with that distinction recognized by this court in the moses decision in the first holder decision that's at three o five f third and other courts have noted this other circuit courts including the eighth circuit in the bars in a case in the fifth circuit in the bears case and your honors in terms of these questions about how the treaty and the convention should be interpreted in this potential tension between the one thousand nine hundred sixty one convention that the common court of rome  determination in the hague convention proceeding are most helpful in trying to evaluate what level of of comedy or preclusion should be afforded to a foreign court's judgment and  established that you could make a more searching inquiry and looking at a foreign court's judgment in this one nine hundred eighty hague convention context and the question to be asked then was whether the foreign court was actually applying the night not only was it actually applying the one nine hundred eighty hague convention but it was applying it reasonably and in a way that this court has applied it here in the united states and in in both as vest and bars the way the the courts relied in part or at least referenced the restatement third of the law of foreign relations of the united states and if the panel's going to have any questions on treaty interpretation issues that would be one place to look is that is that reference and judge home and to your point about  interpreting different statutory provisions and hence a similar rule for treaty construction in different ways it's not cited in any of the briefing but this court this passed a law in the tech can make a case recognize that proposition in a footnote it decided not to apply it there the that the rule of consistent usage readily yields to context in the statutory objectives so this circuit recognized that there in the supreme court has applied it for instance in  environmental defense versus duke energy case at one twenty seven s court fourteen twenty fourteen twenty three and these concepts of of the rule of consistent usage which if if we're going to put a catalogue out or a box on it is  is the same rule noticed in the restatement for the interpretation by this court of international conventions so one of the questions that kept coming up in a briefing was saying and we didn't think as that the li it was our burden to establish the argument on the treaty interpretation because it is the appellant's burden to show that the habitual residence was in italy but nonetheless the finger kept up pointing back to us to say oh neither the district court nor we had come up with any argument about why the terms might be construed differently but that's at least of that's the authority in addition to the reasons that judge lodge gave in the district court system i think we're were very well taken and are consistent with this court's framework in it that's argument is that they aren't well taken his argument is i mean just to play devil's advocate his argument is that what the district court seized upon were instances that demonstrate what mom's intention was not that they were scared if you want to respond about it in terms of the initial they do evidence the mother's mis hayes's intent but but the point then was there was also testimony that was provided that the district court found credible where she presented her position and this is on in the transcript at one fourteen to fifteen and this hayes states we agreed to go as your friend to italy on a trial basis he said i agree that i would take her the child saf there with the understanding that if it did not work out seth and i would be returning to the united states and see further testify that the child's permanent residence would be in redmond and that we'd go to italy on a trial basis and then she was asked he said and you had discussions with mr canady about that in this case testified yes and then the question was and he agreed answer was yes there's no way i would have taken my daughter to italy without his agreement on that specific fact did the parties execute while they were still in redmon and it document by which they named guardians for document there was there was some discussion in the district court about what language was presented and whether he understood it that was the points where the district court made the credibility determination then and tell that he did understand it thank you how did it come about that m in the beginning as as is documented in the record there were still frequent travel between italy and returning to the united states and then on on one of those trips and this comes up in the january two thousand and twelve period mr was was returning and the mother of the child and the nanny were still staying here in the red men area for a few more days and it's in this case this testimony she recites that mr nakia became concerned that the original passport issued to the child had the name of hayes because that was based on the original birth certificate which didn't identify the father then later in the state of washington there was an amended birth certificate that identified the father's name and he started while using a concern that the name on the passport did not match the name on the birth certificate so ms hayes agreed to change that at his request and he then in january two thousand and twelve provided that consent was necessary for the passport office here in seattle to issue a new united states passport for the child and so that's had had he authorized the original u s passport i don't know how one gets a passport for and i twelve and so their original question judge kristen about them the authorization to travel that was sort of paired with that because then the child had a passport with a different last name than the mother's for them to to travel together and avoid any problems he he provided the authorization for a minor to travel and those were executed at the same time yes ok thank you yes and and our point was that how that authorization was framed it was authorizing travel international travel to any country outside of the united states th the presumption being the place of return would always be the united states which was  on the climate is ation encroaching on and we recognize that even if there is a determination of the shared intent and the shared intent was to be in the united states the cases recognize that even despite parental intent there could be a sufficient passage of time for a and even in the absence of the with parental intent to the contrary that enough time to pass that a child submittal residents can change but we would submit that's not the case here as judge lott pro noted that there can be circumstances that hinder climate as ation and that is really the thrust of our argument in terms of the timing on the climate is ation issue that as we were just discussing the father authorized consented to the issuance of the u passport in january two thousand and twelve but then when that passport was stolen in italy in december two thousand and twelve and stolen only after the parties had then agreed that the mother and the child would be returning to united states or or that she had informed the father that was happening and the father had provided a written consent just a few months earlier at the end of september two thousand and twelve saying that he was consenting to their return the united states then their passports were stolen from the mother's vehicle outside the the child's preschool at that point the father refused to his consent three issue of the united states passport as we know defectively trapping them in italy the point being though even though the time in italy was from that first translocation as judge log calls it in the fall essentially the start of november two thousand and ten until august two thousand and fifteen and we recognize it's a fairly long period one of the cases even longer for instance than the period in murphy but but similar we think to the facts and murphy where the child was at school in ireland for three years what's interesting is the second holder case there where the plan was to be in germany for four years although the mother returned with the children after eight months but even then it seems the court considered that even the four year period where was an american servicemen being stationed overseas that might not even that long period might not be enough and that certainly on the facts of that case it wasn't but i point being that the circumstances here where they were trapped in italy hindered a simple analysis as well as noting that the facts that supported these ties to the united states which included family the english speaking nanny the attendance at an international trilingual preschool in rome where the child was known as the american girl frequent travel to the united states believe it's just over in the whole period there italy it's just over three hundred days spent in the united states so not quite a full year but close to it and even in the first two years there were one hundred seventy one days over twenty percent i believe were spent in the united states and the mother had always expressed that her testimony was corroborated by two other witnesses her plans for the child to return to the united states for elementary school here and that even the child's classmate and best friend in italy was a non italian it was the son of an english speaking united nations agency employee there so when you when you look at the immediate home environment and the ties there it's about that is that was not a contested issue in that case there was no reason i don't know that those two terms don't mean the same thing in italy with these are translations but i i don't know why they would be necessary to justify the court jurisdiction over each child would it not i'm sorry just what wouldn't part of the rationale for the court's reference to that fact be based on establishing that the court has jurisdiction over the document they're using the term have it will residence in a way that's inconsistent with the test that we have here it's not the common law where is this child live but i mean common usage understanding where's the child lives so much as shared settle the parties that controls here yes that i got exactly right let me just respond if i can to two points that were made at the end of a police argument here one this point about the timeframe that ought to be looked at brought back to italy it is nowhere near what we had in this case in the tenth circuit but more importantly if mrs thought that that itself could be unlawful retention and italy she could have brought it she could have brought a claim in italy to say you are retaining my daughter in italy she is a bitch really rezan the united states and she needs to be ordered home to united states and she didn't do that instead she threw her counsel over and over again use the term now i understand it sounded in a different context or a different convention that she is a bitterly resident the united states the last thing i want to say this the best thing i want to say about what appellee indicated was this issue about the best friend in the american girl in the things that were cited and judge lodges opinion the fact that all of that grew up in a certain place is important and relevant the fact that she's known as the american girl in italy the fact that her best friend in italy i  guess my point is looking at the totality of the circumstances as as this court is is not only authorized to do under moses but it is i believe the duty to do and looking at a vigil residents  that it's not really a close question of where this child's normal home was where did she always return what did she do that we have a similar situation could you not with the holder children on a u s military base in germany well the in the holder cases the court makes mention of the fact that on a military base it's different it's not not only is it not it's american soil and it's american schools and it's the p x and it's ok to take state department foreign service officers who are posted to rome you know maybe the parents work at the embassy which is a government reservation in a foreign country but their kids are going to be going to italian schools and could easily fit all of the factors that were just mentioned well yeah it's a good it's a good point i've never i've not seen a case and i haven't and i don't know whether there's some other rule that applies when you're when you're posted on a diplomatic mission that can't be used against you in that sense but that's not the sense here what we have is somebody who has gone to italy has made as even what will concede on a trial basis conditional basis but an open ended indefinite basis and continues to go back even after the mayor or i shouldn't use the word marriage even after the relationship breaks down and again the focus has to be on the child here and as we mentioned by any measure by any under any analysis that that looks that eventual residence and assuming initial us have at your residence by that virtue of that two month period she isn't she on august twenty third two thousand and fifteen when she was not brought back to italy she was  ok thank you very much thank you very well argued the case i just argued is submitted and i will get you an answer soon as we can