bailey i appreciate this opportunity to come before your honor's this is like you judge restaurants and being the first time on a three judge panel this is my first argument to the fourth circuit with the three judge panel i appreciate the opportunity in this case deals with whether miss bailey my client wrongfully retained the parties child in asheville north carolina where she moved with the father's permission  she left with the party child who was three and a half at the time left in september of two thousand and sixteen bound for asheville to start a new life together with the parties child left circumstances where the parties had divorced the previous august of twenty fifteen throughout their marriage they had discussed the possibility of when and when she left with the child their agreement was that it would be for several months yes your honor that it would use that indefinite term several months and there's there's that is not a part is several months per that the they left it open ended that way because they weren't sure if it was going to work out for mr bailey and the child to be making a new life for themselves in the united states miss bailey before they had moved in with mr steinberg knowledge at r t and rolled their daughter in preschool and nashville had rented a room in a house for the poor miss bailey in the child to move to tast where the parties have left the stay open ended but actually grew up in other words it seemed to me the court found that the permission mr sumburgh was to may of two thousand and seventeen and that's explicitly stated in the email she said we need we need a letter for immigration and demonstrate that the district court was clearly erroneous in that finding yes your honor and we believe that the record looking at a totality of the circumstances show shows that there was a clear error when you review the entire record  week your honor she sent an e mail in that time period that rejected mr sunbird after the fact amanda that she moved back to sweden and just stepping back a second is it reasonable to infer that you are getting from mission for a mom and a daughter to move to a different country and to try to establish roots in that country and make things work in that country and then to have some definite default you have to move back to the other country at the end of this  custody in sweden so he has some yet doesn't make sense for him to say that when there was no final decision that she would move to america and there's apparently some concern with a cult or something what iran is that out there that arose out of some interactions between the parties when they were living in ali and there was an expressed reservation by mr sundberg that if it looked like miss bailey were engaging in a sect cult in asheville that she would have to move back but there is no sweden because if he was paying off gambling debts and those types of things which exacerbated the reasons why miss bailey needed to move from sweden to try to make it in asheville north carolina let me ask just a slightly subsidiary question but you're on the record does show that your client continued to assert her swedish residence the during this entire time for your honor is there it's not so much the sweetest residency as you may be referring to the tenancy agreement where right which led into rooms and that in the record is i believe you could see it in your brief the reason for that was so that she maintained swedish residence the so that she and her daughter were remained eligible for swedish government benefit rights in she actually expressed reservations for that when we were you know that the answer that question is yes she did that for that reason your honor she did that such that it was a plan b safety net if things did not work out in the united states such that it was a a plan b if things didn't work out as the parties hope possible readings of that lease one as you suggest is that it's a plan b which obviously supports the belief that this wasn't a permanent move which you suspect you don't like but the other option is that it's like elton elf fraud right and so she's defrauding the swedish government and so if are there is there a third option because neither of those seem very good for your client right one we have to accept that she committed fraud on the swedish government in order to believe your position alternatively your position supports i think fairly strongly that we've just actors position which is plainly they did not intend this to be a permanent move ind not intend it much less where there's a joint intention because she had an alternative plan your honor having a backup plan doesn't mean that you don't have an intention to leave the prior habitual residence behind  there's an analogous situation in a believe us the delgado case where the parties were attempting to leave an unstable venezuela and there was an and there was an expressed intent to do that but they hadn't yet determined where the new place of residence was going to be and i think that situation is analogous to ours in that at least for this almost nine month time period which remember there doesn't have to be an intent to permanently abandoned the prior habitual residence residence it can be for a limited period of time as for this court recognized in the case so and remember you have to look at the time period immediately immediately before the alleged wrongful retention date so if the parties intended for the child to bitch all residents to be in the united states asheville specifically which mr bailey had scouted out with mr sunburns knowledge in early two thousand and sixteen so during that period of time if they intended for the child to be habitually ordinarily residing in asheville then there can be no bond for retention as of the may thirty first two thousand and seventeen alleged return date because the residence during that time period would have been in asheville north carolina  that actually happen to believe in that one that basically mean though that you know a parent another country could never intern agreement for a temporary move because then the the mover would always say no you might the agreement might say it's temporary he might say it's temporary but i believe that it was going to be permanent i think your honor if the parent who's in the prior country wants to make it clear it can be made clear in the party's agreement is just the opposite i think that you start out with the presumption that the custody the marriage the divorce is all and the residence is all in sweden and she decides to go to asheville and he you can go to asheville until may twenty two seventeen that's what he says in this e mail and then in the agreement that they actually sign they say several months and then in may of two seventeen will decide which the clear implication is that the several months and in may two thousand and seventeen when we will decide what to do and that was left in limbo but that notion is and then he personally expresses is intent two will decide to make a more permanent decisions about the child in may of two thousand and seventeen and so i don't quite know how you're address in the fact that the district judge found these facts efficient to arguing what ms bailey was interested in doing is to try to address the evidence with risp where mr sumber gave up the right to have the child and sweep your honor i agree with that  and mr sundberg as the petitioner or the burden of proving by a preponderance of the evidence that the that the party lacked the shared intent for miss bailey and the child to move to asheville at least for any definite period of time where you put it that way the child had a habitation suite the child was registered to go to school there the child had this tenancy agreement the child was born there they had divorced there they had joint custody there and she wants to go to the united states now he says i never agreed to a permanent change and then the documentary evidence suggests that he didn't agree to a permanent change now what is the evidence that he dead your honor i respectfully disagree with the notion that he did not through all of the surrounding correspondence agree twenty eight e mail exchange between the parties where he's typing in all capital letters yeah i've got it right in front of me and he says that's that's the one he says you can stay with  may two thousand and seventy and then read on i mean this was all visit and so forth many says if you get involved in the cult comes back right back right away and he also says if you're happy we'll talk about a new agreement which all of the all of the evidence that indicates this this is not an agreement for permanent residence and it's also not an agreement that it had to come back at the end of may have twenty seventeen well there's there is no there is no requirement in either that e mail exchange or in the letter itself that there has to be a return to sweden at the end law in this trial period to may will decide then all keep my options open he never says he agrees at that point in time he says we'll discuss it and the question is is there something in the  record that we're overlooking or that the district judge overlooked your honor i think i think what the district judge did is import an automatic return date a default return date at the may have to end of may twenty seventh teen and says that in the absence of an agreement then you have to come back to c n n where you've put down despite the fact that you've put down stable roots and asheville north carolina leave your job miss bailey take the child out of school and just rip it all up and come back here to sweden and we don't have what she did when she went from sweden to america with the with the well and went to america turn right around and go back your honor and that's what she had to do because of the return water but it but what happened was on the front end the parties agreed that there would be a move to ashville on the back and it was a unilateral decision by mr sunbird to pursue the relief in the courts to make miss bailey go back beyond her intent that was expressed in the original agreement and last december and we are here to be available to answer any questions you may have about the record i intended to start out by talking about moses and how our circuit is one of the five which follow moses and this is clearly an example of a second category of the moses analysis where the child's initial trans location from an established of ritual residence was clearly intended to be of a specific a limited period and the court is should be very slow to find change intentions changed which will residents without some very clear evidence that both parents into the move to be permanent and if we look back at the seminal that was about children who had been on an exploring america adventure for fifteen months already at that point in beverly hills to get climatized to america and the ninth circuit said well you have to look at whether the father really meant for this to become permanent and i don't think that an interpretation of the hague convention that would chill parents ability and willingness to send their children to study abroad for a academic years tend to be around nine months that that should slack the parents right to get the child back to the hope and three after that it's laura tory trip it would it it's the whole purpose of the convention i think to get parents some peace of mind when their children go abroad for temporary purposes i think there was a factual question about the cult we we didn't think it was really appropriate to get into that in depth that the trial level because it's not a best interest determination whether there was a dangerous cult but my client did testify that the mother had in fact been back in touch and that there was web correspondence involving the cult members that was concerning him that undergirded some of his thought processes and we think led to some of the breakdown in communications at her lack of willingness to return to sweden but the real question i think you all have have hit the nail on the head is that there was never any share parental intend that a finding of fact determined by the district court subject to a clearly erroneous standard and i think the fourth circuit would do well to make it as clear as possible that the entire will residents inquiry is one primarily of fact in these supplemental authorities cited by opposing counsel on friday you pointed out that just about one week ago the sixth circuit came out with a majority bond decision that says the entire habitual residence determination is one of fat and i think that's a very realistic appraisal of such a fact and sense of situation as a child's attachment family ties their sense of belonging and the parent's intention which we've long held looking back together which clearly it's one of those things that the law is like employment as an employee the underlying facts are those facts as established by the court amount to the legal requirements that's another issue which are probably a question of law but i was trying to question him about the evidence on which the court relied and i thought that was the nature of our discussion yes your honor and certainly i think we prevail based on the fact that there was no clear error in the district court's discrimination i was just going to suggest that there was some ambiguity noted by the secondary source author of the federal judicial guide to hague abduction cases and that we were an outlier in having a clear air review of the ultimate finding of residence i actually think that that view of it actually runs through maxwell and back to moses not stated explicitly in the standard of review sections of th opinions but during the discussion they say each of the subordinate conclusions about parental intent and the climate is ation are specifically facts fact findings and in the maxwell decision it also sa jeffcoat just made that a little bit more clear and distinct so i think the fourth circuit would do well to just clarify that there's no real way to distinguish the fact findings of both of those prongs from making the whole  residence a finding of fact but i think that's an academic discussion that we don't as as a party have much of an interest in because i think we come out on top either view but that's i thought it was interesting and worth just since you sort of talk about the stander of you what woke me back a little bit to the standard you know your kali puts a lot of weight on the idea that your party bore the burden of proving your residence hel help me understand because if you look at the statute not thousand and three subsection e it does not tell it to you don't have to actually look at it it says that you know the petitioner bears the burden to  establish the wrongful removal ok but then we take the next step then so in the scenario we didn't look at is the habitual residence question and what i want to know is do you believe that your client met the burden by establishing the previous wrecked residence in sweden such that it shifts over to your opponent to rebut that through this sort of change or do you believe that continue to bear that burden of persuasion each stage of that analysis i don't find any case law support the comes to mind for the proposal that you divide up the habitual residence analysis and i believe we had the burden of showing that habitual residence at the time of the wrongful retention was was in fact of violation of his rights and that he opposed it and that the child w resident in sweden i think we were sort of gets fuzzy is that the evidence of the bit will residence in sweden as time went on was was clear and we had a lot of evidence about that he was no longer in the same place with  from sweden during this time frame that we're talking about it's i do understand the sort of lack of so many and maybe to point to ask it a slightly different way is in a hypothetical scenario where the question of a shared intent and i don't believe this this case except that but if we had true equitable way on the issue of shared intent for example shared intend to transfer it just we could not tell whether it was  and there's enough a climate as ation a vengefully it can push it over but yes we believe we did set forth the facts more than fifty one percent that the child had not lost sweden as the habitual residence by the time of the wrong determination of a district court is reviewable novo because you have to apply the legal precepts to the facts as they are until october seventeenth this was the only circuit that was using clear error review of that overarching determination by way of the unpublished rayas vs jeffco case the six circuit ten of the judges of the eighteen judge on bomb panel believed that clear error of u applies to have bitch will residence the overarching determination the other eight disagreed so now there's two circuits potentially out of the eleven review to the determination of whether a child was now settled under the hague convention and it didn't apply clear error of you to that determination nor did the court  apply a clear error of you to the consent defense which is actually at issue in this case they the court the panel there reviewed it genova and so we think that if those precepts under the ha of the bitch will residence in corrie case law says that that is reviewed for clear error and again we believe that when you look at the correspondence and dial between the parties before they entered into the relocation agreement in august of two thousand and sixteen and then follow up correspondence where it's almost if you look at the emails exchanged in the what's app text between the two parties  it clearly shows that mr sunbird believed that there was going to be an indefinite stay in nashville and was regretting that decision because after coming and visiting the more realize when you make an argument like that you're basically saying the court was wrong when the court said it was a limited stay in other words the it looks to me if you're want to look at the facts which the court relied it looked like there was an agreement to move for a limited period after which the parties would discuss the issue that's where the court came out and that discussion was to take place in may of two thousand and seventeen and it's seems to me that  evidence the way it is says i'll visit to see you see if you're happy so we can talk about the new agreement if you're involved with the unhealthy sect you come back as soon as possible but the letter says you can stay with lp until may of two thousand and seventeen and then the agreement says you can go across there for several months and then in two thousand and seventeen will determine the future that's saying the same thing the idea is for period of months you can take lp to the united states and then in may i'm going to come over during the winter and in may we'll talk about it and see what happens but that's hardly an agreement  consent to a permanent change and a new future it rather is a temporary training to try to figure out what the future will be on a permanent basis and of course during that stay  be a change of habitual residence for at least the september twenty sixth tina may twenty seventeen such there could have been a wrong for attention as of the end of may twenty seventeen or it was an indefinite stay under the the agreement of the house and we believe that was the agreement of the husband thank you all right thank you mr i will come down to gree