by the convention case law interpreted the convention for a logical extension of i'm sorry before you dive in and apologize for interrupting them go right back to where you are but i just have a certainly has her contract been renewed or not yes ma'am that occurred on the record and perhaps statements made in a police briefing about whether or not a new form or contract similar to the one that was in evidence was signed however the renewal took place by email not recognized in case law or any logical extension of it indeed is not recognized anywhere in the world it's essentially an encoded unfinished claim under the convention and he's seeking to create a new cause of action by bring here which would lead which is not consistent with the plain reading of the treaty which should be read in the same way the statutes are read in the sense that specifically the treason are written in the future tense is also inconsistent generally an undisputed sort of cultural excursion to united states from israel by the mother's family led by the mother children went with her was supposed to last for fifteen months it was unspirited that the original period of time was fifteen you just object and i thought to focus in on shared intent that's exactly what moses does they say you can't object to that mode of analysis well with respect to the analysis but we argued was that then just to maybe just lay the backdrop of the moses analysis to begin with shared intent to relocate plus geographic change plus appreciable period of time you'll see a change in residence if there's a dispute as to the shared intent then neither party should be taken at face value you have to look to the rest of the record i also asked judge matter to examine acclimatization and we did not ask him to place any explicit weight on any part of the analysis we're simply arguing that moses which has been followed in some way shape or form by nearly every circuit that applies the test for habitual residence was part of that analysis and i think what that is a actually a critical point we put this in our proposed by the fact in conclusions of law that it was not simply the shared intent but it was also the acting which is asian and we did not ask for a specific way and i believe that that's also consistent with the way the case was developed you already said set for us the framework you want to use so it doesn't i don't know how you can now come up and argue for the st time not in your brief that you think there should have been a different analysis with more emphasis on acclimatization well actually  the facts of the case for example the most clear the clearest test that would be applied was the act that wouldn't apply in certain situations is the accusation test if you have a child that's too young the most this test is actually you said they don't have to have the intent to accept washington d c there's greyman are you claiming that there is the record that the district judge was clearly erroneous in failing to find a shared intend to for at least three years and we were never going back right there moses says you have to look to the rest of the record and you cannot take to determine what the person when the parties last had a hearing about  actually the district judge left out the st step that this goes back to my argument for it is between retention the st step in the analysis is is there ever a move or retention without respect to whether that removal retention is wrong is a child being retained somewhere now back to  very retention a child absolutely cannot be retained in the jurisdiction in which the child resides and resides today while this case is on appeal with the understeer to consider both parties that was the case in most as the mother went so that the party cannot take subversive action to create a new vigil residence that's being conflated with a claim that dr overheard or filed before there was even a retention his case was and the other had with the other administrative they were all administrative agency appeals which is a court often hears just doesn't make any sense where the parties know that there are at loggerheads and one has taken legal action and i want but we're talking about you know whether there's something that needs to be cited i've but i didn't pay for the weather to be decided could you please clarify your honor the last whether there's something that should be decided now oh actually i even if this court couldn't grip this court is actually in a position where it could grant relief that would affect the parties in an extremely wake the substantive way in chief and or rather the move this issue mandate is that they be heard in a expedite expeditious fashion but in this particular case that our claim if we were to prevail here would prevent actually prevent the entire so you want us to very quickly hold that it's not right and then have the father file again in two weeks and begin the whole thing over i'm saying one million june he did not have a proficient case because he cannot prove that a retention actually took place that's when we go back to moses because even if we assume that they had a shared intent to stay here until december st what moses and a long line of other cases said is when one party interrupts a shared intent with a legal filing that seeks to alter custody rights as occurred here you've got your attention that's exactly what happened to moses that agreed is that in the middle of that the group it doesn't matter because it didn't matter because what happened here is there was an interruption when the child custody complaint was filed in superior court and living together with the family in d c that's it can it be that unilateral decision to move back to france and she said you can't live in this apartment when you're not on the lease you're not welcome  turn in i changed the locks absolutely and i would just there is evidence in the record she denies changing the locks just to but i want to stick on mine and i want to play i think the bigger point here is that when that that what we're doing is goes shared intention for fifteen months that was interrupted and everything got blown up by the filing of the custody thing we hope that seeks to alter custodial rights and it seems like in this case your brief talks about she gives him visitation but before she finally kicked him out of the apartment she didn't give him visitation he didn't need visitation he had full physical that parties could ever wanted after she after she filed and said and told him i plan to keep the child here could he have taken the child back to france or do you have to have the others about the other parent's permission columbia law you would be the other parent ok so what happened with certainly happened here is he lost the right to take his job back to france that's not true he just said you would have to have under d c law and have to have  retention is not wrongful but i would argue that it can you still have even not with me to go back before d i make the assumption and proceed with the analysis even after all of these things happen dr did not dispute that he still consented for the child to remain here and you know number let's be crystal clear what he consented so he consented on the assumption that he was still a full and equal parent that they would be here for eighteen months i see no where if you can point me to it i would value it where he consented to the child staying here for the full eighteen months when she was no longer a full custodial parent and in fact  petition asked for immediate return so can you show me where he consented once he lost his full custodial rights through this filing when things changed he still consented to go into the end of december  filed a petition at the thing you're talking about that says i want immediate return everything has blown up everything has changed this is nothing i ever agreed to his petition doesn't ask for immediate return correct lisa yes and somehow produce and that was june so how can you say that today he's still the greatest of the child being here until december st it was speeded throughout the record and also no no what was  undisputed was what you're talking about and we have fact findings from the district court here but what you're talking about is when they st came you're making a visual residents argument great st cane that was the plan yes now but when they respectfully say that that was with the i believe that accurate synopsis of judgment has ruling is that that would be within a period of potentially much greater consent and that that was the r and the length of her contract as opposed to looking at it like don't you look at a lot more things than that you you have to be acknowledged that he looked at how they left france what they left in france what was said to really case law and it says it's a mixed question of law in fact and then it goes on to say that generally speaking it is for part test tournaments a bitch will residence because of course typically address the for the four steps in the test after they talk about a retention and then step two is where is the child's habitual residence well step one into our fact finding exercise is step three is there a breach of custody rights that's a question of law and therefore was the exercising custody right the facts and the facts extensive fire action where the original incidence is a heavily factual and clear i don't think anyone disputes that you got you can't declare it as a matter of law like nationality right you have to find facts but when the district court finds the litany of facts like the district court didn't hear and says those add up to finding that there was no abandonment of the habitual residence in france that's making a legal  quite it's quite sort of context dependent it is your honor can i just back up and seems to me that the way that your understanding the question is really bound up with the notion that there was no wrongful detention step three and i think i mean it is a little bit counterintuitive that it's referred to as a wrongful retention where things were going on as they had been a wrongful are you ready for are going to go to court so so i fear you resisting the idea that there was a legally operative wrongful retention under the hague convention in  and that that really your whole pays and where rests on it that's partially we do we are advancing anticipatory retention argument as well but if i could speak directly to your honor's comments that would go to step three which is a legal  question that was the was the action or was there a breach of the custody rights and if you look to the laws of the district of columbia and you look at the law of france as you specifically highlighted in your reply brief going into a local tribunal and saying hey we just when you said that you weren't raising any issues with respect to whether this was a vial and whether there had been actually an alteration of his of his custody rights under french l remember he that's why he said that he didn't have to decide that issue because it had been stipulated to or have been conceded in your brief you try to say well we never conceded that but i look at the transcript and he did c e it i don't believe that we did have such a matter was speaking and hypotheticals at least no he asked you a question trying to trying to figure out what i have to decide and what i don't which is what conscientious just reported judges do to figure out what is it that i need to decide in so he's asking you as a person bringing the petition do i need to decide these other issues and he said no i didn't say no explicitly but even if you look at it in context you said no because you didn't say a word about this issue as being one did he had to decide whether there was a breach i believe the question was if there was a finding of wrongful retention will there be a breach and in the for you have to find a reach for there to be one and i think we certainly conceded that he was exercising think that the way the case was read that you know breach of the rights of custody there are a bunch of cases that really talk about or seek to change you know where somebody unilaterally saying you know whether it's the mother to get that court to act and as i was saying even though that we don't typically think of that as wrongful i think it's the unilateral quality of it that the law is labeling as wrongful in the sense of an assertion of an effort to change the legal status and really when you think about the hague convention is an effort to make a forum choice you know for this family and this child we don't want to just have a race to the courthouse around the globe and have somebody to the facts are very different and that there is most of these cases arise when the say a parent is traveling on vacation the mercs case is a great example a three week trip from thailand to see  relative return plane tickets have been bought it cannot possibly be clear filing for custody in that instance this would strike any reasonable person as offensive and in breach of custody rights too because not only is there an element of filing for custody but it's based on what is essentially a lie or subversive behavior in this case there's no subversive behavior there's no lie there's months of marital strife immigration purposes the nd he denied this a trial but dr sami baskets his position is that he needed to be left off it because one he no longer knew the immigration papers and to tell him that he  or says it is brief crystallizes the beat of the current state of the visual residence analysis notes that a period they did not start at the period of retention during the period of consent meaning that the one week trip to acquiescence organ said in that context that judgment i was seeking that i understood his question to be was after the fact as an affirmative defense are you saying that the other parent consented or acquiesced well at the point we're at the end of the trial  rights and they clearly had them clearly he was exercising them at throughout this entire period and still is today and the statement that i made and perhaps this would be more let's put this aside certainly i'm trying to understand what would happen if we decided to cases you as you would like us to suppose we we we we were to dismiss this case for lack of jurisdiction would that work well the analysis without conceding our obvious disagreement with the result just to keep it on the analysis level the wrongful retention the data retention becomes wrote were not disputing can be back dated to where we believe in this case a court can do that or else you would you would also have absurd results because you would allow subversive essentially subversive conduct by by pairs now likewise so longer in accord custody rights they don't want one of them has said here you know shot across the bow things have changed and it's at that point where you are ok with and because residence because that's the that the determination of step two is primarily backchannel it has to be so that when you talk about radical retention your honor i believe you're talking about the former if you will have that i was referring to it's is the analysis you need those four steps to determine if there's a wrongful retention that's the rub the retention analysis the visual residence is part of so what we're saying is that you don't obviously as i said before you don't have a retention so you stop there because it's but here's another example not in to them and that makes no sense to me you just that you have to find retention st but we all have to keep our eyes ears and mouths shut and closed until the magic day of january  st and then we can go it already happened back in may twenty nine thousand and you're calling that anticipatory is the short answer is yes but if you sort of look at how does that make any sense at all as it stands today just so you are just you totally disagree then with all the cases judge hillard reference including moses when they found that in fact you can have a wrongful content wrongful retention during a period of consent because the custodial proceeding or the articulation of marie fusil to return at the end of the agreed upon period either one of those changes what was agreed to that's a change in the agreement was before and that was held to be notwithstanding the agreement to stay there until the fifteen months which is the equivalent of your december st it was held to be a wrongful retention retention any wrongful retention and that could be decided there was nothing anticipatory about it you know what happened right and you disagree with that in your view what moses should have done was wait until the end of the fifteen months and then file a petition and then the court will go back and say lo and behold a wrongful retention happened six months ago during the custody during the agreed upon time period i wouldn't go as far as your honor described it i would i would we're not asking for a bright white rule but it should be return with the child at the end of the agreed upon period or filed a legal proceeding to change custodial rights you have both here then that constitutes patience you said that d c hog requires i guess when she filed a custodial petition d c law required consent to take the child back to france to relocate you would need you would typically  have to look at the the specific statute that's on point to getting permission to leave i'm not sure that there is a statute that says in the context that you describe it that you need the permission in an initial sort of dispute with no court order that you need permission but i can tell you based on the common practice that if a parent were to do that the other parent would fuck march march in front of emergency order and the d c superior court would likely where the child returned immediately for one parent was if it was a subversive move without permission and then sometimes trying to understand that's just a general rule of d c law or is that once a proceeding has been initiated in superior court then people aren't supposed to grab the child neuron in the spirit for his control i think it's just sort of a well known practice sort of understand like that we all know that if a parent were to do that we could go ahead and likely get an order for the immediate return of the child from the local custody court you know that be would hire had said well i'm sorry you can't make it to his wife were for whatever reason but i'm going to go ahead and take the child with me just for easter this easter celebration that we had all planned because she had gone to court and said he can do that could he have said i'm sorry you're not able to make it in this basket has little love to have your freezer but we have all these plans with family and friends and so i'm going to go ahead and take your child or man i'll just bring her back at the exact same time we had planned at the end of these years albert i believe that was evaluating custody terminations are the subject in fact intensive generally around the best interests of the best interests of the child when you get into issues where you have one parent that's taking action that is you know maybe in complete another violation of their parent's right you're making that you're trying to love the answer ok i'm sorry if i'm trying to do anything if there's one thing on a plane i'm talking to france and of the if it's if it's something that is that would you know sort of substantively affect the rights of the parent who's agree with the court you know and the child was moved there at a permanent basis for example the child went to pennsylvania instead of a foreign country you know the proper thing to do would be to follow emergency petition the jurisdiction where the child was removed from and seek an immediate return then when you have that water now there can be potentially be criminal penalties even though the authorities typically don't get involved in a criminal nature but now you've got your order and that is something that can help you get the child back so it's it's that's just sort of the with all sorts of situations are h citation it is family law rule g i believe it's a very order set of rules just for the family court right at the beginning of the civil rules but that and that will only  superior court to have that if she hadn't filed anything in superior court and he said ok i'll just take her to france for easter could she have gone and gotten an order without filing something as the fear part yes because and in practice complete for custody the grabbed his daughter and going to the plane to france that it is normal and reasonable to think that there would be untold consequences from that i suppose to seeking the proper remedy available to him is the well being of the child credit and is just trying to figure out what the best for america is what the appropriate forum is when there is even potentially a conflict right among different international different national or local four  and i think the thing that is is sort of i struggled with at least at st is this notion of a wrongful retention we have to assume that france or some other country is at least in the picture as a potential habitual residence in order to lift off we have to call it a wrongful tantrum is that right it's one hundred percent correct and you all asked about this timing issue so i had a moment when am i was listening to learn  position this morning to go to our government's views on this and we did state in our brief the united states government's legal analysis on the treaty and so it quickly there are numerous reasons to proceed promptly the two most crucial reasons to proceed promptly are number one to preclude adjudication of custody on the merits in a country that's not the child's habitual residence and judge toler turns your question from earlier this morning and to maximize the chances for the child's return by reducing the opportunity to establish that the child is settled in the new environment they are by impacting the child's wellbeing our government has said you don't wait you file and this heat which just as skins were in down in her concurring opinion in chief and tiffany chief in the nd supreme court case justice ginsburg said the reason we move these cases super fast and the reason the united states has been criticized  past of moving these cases too slowly is at the root of this is the child yes it's not the best interest analysis but the wellbeing of the child is paramount and you cannot as you were posturing or believe in your question just colored allow time to pass and the child to become more and more settled and then take the child out of what means have become after a great period of time a situation that's too difficult for the child and that is really what the tauren case is a boat and as you saw in our brief i went back and pulled the original complaint in torrance and the original than a year to file his he case there by creating an exception a defense which only exists once the child has been settled for more than one year what are we to make  this so what we don't have your is an administrative e mail from a lady in the french central authority who makes the classic would be applied to the petition in federal court here and so it doesn't matter if scotland has not yet recognized undertakings which has been a huge issue in the cases over the years it doesn't matter if  signatories but and that now they seem to have a pretty firm statement here that there was no in their view they're looking at the same treaty we are there's no wrong hole retention not just with her statements about don't have settled jurisprudence in this country well that's true because if you took the map of the united states you could point to certain circuits that have tweaked and manipulated the analysis of a  be analyzed and seems to disagree with the miser's approach and says look it's just wrong everything don't give a particular you can look at subjective intent but don't give that the parents object of intent don't give that any more weight than anything else is just one factor i'm article nine of the treaty if the central authority and that's what we have here which receives the application has reason to believe the child is in another contracting state which the child is  united states delegate who really came up with this brilliant idea which was how can we stop the mischief the mischief being unilateral action by one peer and that changes the status  you should have as required by the treaty and as justice kennedy says in an abbot he said this is a text peace treaty you mean not monkey around with this language it's text based and that's what you've got to do the authentication rules and hearsay rules for foreign documents because it's you no wonder our federal system is quite difficult to get foreign documents into evidence and so article thirty says if you submit an rules of authenticity and admissibility and that's why this is done and if you notice i get that the argument they may have made of procedural error here i'm not going to find the state department's relevant office right but what i'm asking you is is a different question i think the matter is there's a statement here that seems to me the view of the french central authority on whether or wrongful retention occurs pardon january one and twenty is that statement reflective of french law is that an accurate whether they should have done or not is that an accurate statement of the french government view on what this tr was made on june the th the treaty and our government says these are not mutually exclusive exclusive positions then judge mental move this case rocket speed look at this e mail on june the twenty six that this e mail came back from the french central authority so they then dr i boot haidar had activated his no exclusive position by going straight to federal court here and pursuing his petition for return it's not the case that this e mail came in and then you must be given the right to resubmit it you have to and that's in the legal analysis so when every summit or somebody else i don't know exactly how the french central authority in this country when you look at article seven you see these are purely administrative duties that are central authority hunters and that the right to file in court the judicial remedy is always what i'm trying to understand is what it seems to me that what you're saying is that the only role for the french central authority here works to ascertain of the child if the child was in the united states  initiation of a judicial warrant ministry heaving with a view to obtaining the return of the child you're saying that you wouldn't have been france's role to determine whether france should have a proceeding itself to determine whether the child should be returned from the united states that only the united states central authority would  procedure that's correct because most other countries are under the misconception that you can file a hate application that he gets transmitted to the state department and the state department will put the child back on the plane to the other country and what central authorities actually are empowered to do is extremely limited particularly in this country with the division of powers there's only three and affirmative actions are central authority can do number one they can write a letter to the custody court telling them they can't proceed because there is a case pending number two they can write a letter to the federal or state court or district judge who's handling the  saying here are some useful links to help you learn how to judge a case and number three they can write a letter which they hardly ever write to a panel or to a district court judge saying you're not move fast enough that is it there is nothing else the central authorities able to do unless the child is missing and then the central authorities can seek the assistance of each state's missing children clearing house which by federal law can go to school records and pediatric records and try to locate the child to the central authorities do they have any interpretive role under the tree or is that limited to the french courts limited to the french courts so that the french central authorities statement about what it thinks the convention requires that there's nothing you can do here can you agree to this number three version they have no authority to offer that interpretation that's right and that's why you see that this lady was acting ultra vires she could not and as you see under article nine she could not ignore the plain text of the treaty she had to she had to do that now trial in the here case determines that it might be helpful to get a view from the other country then an article fifteen request can be made to the other country take judge morse in the u s district court in maryland as to another government to ask the our courts to give a view on a particular issue and guess what the other country said we can't and saw everything is is in the order it's called include that and so there was no need for the article fifteen remedy and that's really what happened you know you mentioned judge millet the government to think about but it cannot be necessary or sufficient or even carry any more weight than any other fact that's how i read their brief and mona's analysis overcome it but it seems like a rare circumstance yeah i agree with i agree with that a lot of what i was going to say is what judge metter did is exactly what the government says should be done because reasons to have it all residence the customer read all of this child is obviously friends and he goes through sixteen different compelling facts reasons sixteen sixteen seeing why there's no possible don't that france remains the customary home of this child and those and sixteen views tickin documents data evidence that they have on the in each month contract but all there were really possessions are stored in two containers in paris and he had photographs of them all and the best man from the wedding if you're on a more raw populous and there are other best friend from italy boss said everyone knew this was an eighteen month  service is giving up the right to litigate they are more still porton part of their lives their family in the united states that cannot be the law and it's not because this brilliant treaty came up with the solution the you must prevent unilateral action and that's what madam respondent did and it's not just her she instructed very competent counsel and this is an petitioners exhibit sixteen which is  space treaty it's based on habitual residence if in some extraordinary case there is no habitual residence then there's no treaty remedy but that can't be right because you can't leave someone in the position of d he has the the concept in the european union is a concept of parental authority or parental responsibility it is not really how we understand the words custody and visitation but course that's the great thing about this because it this treaty assumes all types of rights and obligations relating to children and saul under french law he still had equal rights and and that  judge color to your question about wrongful retention because once you establish that there is wrongful retention then the question is ok where was the have it all residence friends at the time of wrongful retention a residence was still friends did he have rights under french law even if they're just joint rights that's all he needs and he did whereas what happened in superior court was an attempt which our government says is to be avoided and we have to act super fast to prevent this another court usurping the proper jurisdiction of france that's what happened i agree with you all it's not really an abduction treaty in fact the word of duction is only used in the title and it was a last minute idea by the canadians to sensationalize this treaty in a good way to  attention to this extraordinary mechanism it is a case of forum what is the correct forum and the two issues of wrongful removal when someone's taken from one country and wrongful retention when one is retained and there are a myriad number of ways in which our courts have developed the idea that you know all that any type of unilateral action triggers case by chief judge jordan the pole in syracuse is absolutely on point it's the question that chief judge jordan explained is it's all about timing and you look to when did the left behind parent realize what was going on or dr ever hide or realizes what is going on when he's having breakfast there's a knock on the door he served with a foreign custody case and then through a note of his all that's enough and that's why practitioners of the hague try to get their affidavit of foreign law into the record as early as possible you see in this case long before we got to trial we had filed the affidavit before and more so this in the broadest possible way so every possible case can be brought under this treaty because there's no there's no downside to madame respondent the child goes back they go back to france they sort of  minutes one issue that i would like to draw attention to is there still to be a great deal of focus on the doctor of the hiders career and where he's licensed to practice medicine and his commute what about the trajectory of both of their careers as they move to the united states this was a an amazing step forward for dr center vasquez indeed they moved here for her opportunity they anticipate it being longer they specifically negotiate it being longer than eighteen months they took steps to make arrangements for what would happen after the renewal of the or the renewal  the st contract in three years pacifically he started getting he started the process of registering his medical license in urc why there's evidence in the record that demonstrates an intent to  clear intent away from france and i think the the district court focused on what essentially says i don't think they didn't of this show that washington d c was their permanent home i think that that's essential with the opinions that with the jurisdictions that in the united states has been adopted by a believe nearly every state if not all of them at this point the uniform child custody jurisdiction foresman act all that you're saying that the jurisdiction where they file doesn't have to be the jurisdiction the ha convention and therefore then just defaults to whatever whatever form the party files in which is i take it to be what you're arguing there's no jurisdiction for there's no habitual residence in the meaning of the hague convention and therefore it's not in opposition to any forum that the convention would select for the party to file in the home state i mean there's no breach of custody rights the settling of we don't look at the hague conventions  i'm sorry certainly just that the the breach of custody rights must not simply be an attempt has to be to satisfy step three in actual breach we're going you know this is kind of long lines w argument and that i would prefer the court back to the paris for a report which is an official opinion of the executive branch is the seminal report with respect to interpretation of the treaty expressly says the central authorities can