get started on our first case will be eighteen dash four zero two five watts versus  you make you may it please the court my name is jim honey cut with me at counsel table is my associate attorney jimmy law bachar we are the counsel of record for the petitioner in watts your honors my client's appeal focuses on the legal standard for the term vidual residence under the hague convention on the civil aspects of international child abduction i'd like to start by perhaps drawing your attention to a footnote in the district court's decision that is footnote forty six that's found on page twenty three of the trial court's order as i was going back through the file back to the record i submit that that footnote really gives a good solid microcosm for what's mistaken about the district court's decision that put no in forty six really includes multiple in accuracies on a legal basis that we can go through so one of our arguments was premised on the plain language of article thirty one a of the treaty itself and it's in footnote forty six that the district court knocked down that argument and rejected it it's kind buried in there a little bit it's fascinating to me that i had cited one particular case but in that footnote the court said i don't like that case i don't like walton versus while it was a district court authority from mississippi and i would submit that if you compare the case that i cited walton versus walton and if you compare that in ray poena the differences are startling and it really highlights that pony up is not up and it's not persuasive but walton yes and pony yeah it really does it first up no these cases talk about thirty one day i don't know what's the standard you're advocating for the standard i'm advocating for is if you re thirty one  convention it says you look at a territorial unit of each country in our case the family went from north carolina to australia to utah and the district court made a finding that the entire united states of america what's the standard before we get to what this record is the standard for how we define potential residence yeah but what it would be what do you want that our opinion to look like i want you to embrace my argument about thirty one day that says you look at it on a state by state basis that a part of this the instead choose only says you have to look at it as a political subdivision if the law is different and both about if the law is different sure well thirty one eight talks about matters of custody of children we look for different territorial units that have different systems of custody laws it's explicit that the hague convention is not a custody law we don't get into the best interests or what the custody of the children should be it's about the immediate return of the child to his or her place of habitual residence and i submit that when you look at article thirty one it's talking about in relation to a state and in this context that means a country it when we look at a treaty the word state means country in relation to a country that when it comes to child custody laws has two or more systems of law and i submit that this country has fifty plus systems and every state approaches child custody matters differently and the territories and washington d c there's different so does australia  what is a vigil resident mean it means that you know that it's going to play not just to shane but to every every parent going forward in the circuit i think it's a combination of shared parental intact that's one of the two prongs of the thing that explicitly says a child doesn't have to be permanent or forever in a place to change the location of habitual residence in that british case ray bates the three year old child had only been there a month or so in the state of new york and the british court said that that's under the circumstances that's long enough we've said a multiple cases where you don't have to be there forever and obviously our other argument was the district court erroneous leave conflated d court was looking for permanent see but the word i kept hearing over and over during the trial was forever is this forever it was moving to australia and our review here we're looking in clear air on the fact line and then in the record at the custody law in north carolina it is different in the custody law and probably not no i don't believe that you didn't put in evidence of that then how on this record can we address the argument you were making that we need to look at this specific state for comparative sure i think it's law i'm not aware that i need to put on evidence of the law i mean question when i guess as a divorce lawyer i just took it for granted and i apologize but from from my point of view i probably is important are the difference now can you represent this court that they are materially substantively different that they would lead to different outcomes miles i think that matters that i mean most of the cases it's an eighty eight where they started it's american state a they go to foreign country b they come back to american state that that makes sense that's where the child was it was wrong for that parent to take the child out of the country and either going back to state a but they white and they were transitioning from north carolina through utah county rather some family connection and off to australia fair enough but no what do you what do you think the most important fact is that would support chains determination of habitual residence in victoria why i think there's a lot of facts that the court opted to overlook the application for permanent visa by the mom in australia what's the one or two facts that we should accept that would basically control the outcome in your favor while at the april there's a meeting in april two thousand and seventeen or according to the mom's testimony is only of first test is not the ultimate test i think you know it just seems to me addresses what the children's have been to with as well as from their point of view now if they're young obviously the parents agreement or not will be decisive as  get older that starts to slow down on the slope and the children get more of their own independence so we've got different ages of children his was kind of a complex question but it's not just resolved about what the parents s of agreed to that's true you look at both factors to get shared parental into and you look at the child's acclimatization they've gone to school there for eight or nine months they've made friends they were involved in extracurricular and cultural activities and they had no expectation they were going to be going back to utah that was never even suggested to be their big residence no one ever suggested in this case that you thought was that will resurrect if they were students in a boarding school in australia school that's very different your honor and that's a different set of circumstances so sure if the parents of the parents are using the parents are back in america and the children are by themselves on in australia let's say let's say they come and visit for extended periods of time i agree convention specifically tell us that they don't want rigid formulas correct and i would submit and so if that's the case we don't have rigid formulas it's not kind of a legal three step process why isn't the best judge able to make this decision is the district judge that is the interview review question the kids which is what we have here and if we're simply going to get kind of a holistic  that's been misused we've cited some eight circuit precedent that i think did a really good job robert versus tess and criticizing how moses encourages abuse of office of the convention because it encourages parents to plant the seeds of doubt and then later do the grab and run you know lender versus larson this court was very critical of both parties doing the grabbing as well and if you look at it from a policy standpoint intestine first test and encourages this court to look at is the idea that you are inviting you're empowering a future of doctor to lay the foundation here's a hypothetical let's say i have a client comes to me and says jim this case and frankly what the most court did in that case and i were disposed to say well client why do you do this send an email to your wife that says something like hey honey i'm so excited to go to australia it's going to be such a fun experiment it'll be so cool living in australia temporarily and then we'll move back to america in a few years and then maybe we should try to new york or puerto rico or i go client if you do that that's exhibit a and you have all the flexibility in the world and if you want to go to france you can go to france that was their argument at trial in the court embrace that argument that well eleven months wasn't permanent enough you're dreaming to live there  two and a half years was shifted to three treat a half years that's not permanent enough because you didn't have a permanent agreement to stay in australia indefinitely and you knew that one day you were going to come back to america you could move to the jurisdictional predicate to custody is that's where the kids reside and so i do see a huge disconnect there but i will take your time for that but i don't i agree i think that's another one of those you are asking for s we stipulated to australia being able to address the terms of the party of divorce and custody of the children to some degree not to some degree us truly is going to settle custody of the kids right that is not just to some degree side of the predicate for the australian court having jurisdiction is that that is where the residency of the kids ias right not is but was  our understanding is that mr watts is not currently an australian that he is in utah now and so i frankly have a question and i had a question for some time that i have been asking the australian lawyers with no real clear answer  there were you know under under utah state law the children would have to be here for six months before she was able to file here but but to mean the issue where are the children the children are here in utah  but there's they've been here for six months right they have but there's also a proceeding and and and australia and so we can't have there can't be two dueling proceedings but why do the proceeding in australia even agreed to that and give that just square out into the system with the position she's taken here no it's not and the reason it is is because one of the purposes of the present or the primary purpose of the hague convention is that you don't have this forum shopping you don't have somebody taking the children out of australia to you top filing for divorce in utah seeking custody rights and you top as a form child a mechanism here we want to form shopping bitterly resident there but that they were residents of australia no what is the jurisdictional predicate of the australian court assuming custody questions over these children so that's a question that i can't answer judicial stop standard which i guess has been argued here but it seems to me to be a potential absolutely inconsistent allegations that your client is making and i don't agree with that judge i think that you can concede jurisdiction  convention is not a it's not about custody the hague convention specifically disclaims that i know that but both custody and hague have a very similar during their doing very different things different purposes but they is is one of and and probably not the most important factor of what habitual residence this i mean residency i can change my residency to you know to new york and i can go live in new york for six months  actually no roots and absolutely no interaction with anybody whatsoever and i may be a resident for six months a year two years but i'm not a habitual resident because i haven't i don't have groups right and my children don't necessarily have the roots that would be disrupted by removing them from from that from that by mitchell residence is shared intent plus the climate is ation and neither one of those has to do specifically  explicitly with the passage of time whereas jurisdiction often does jurisdiction often is only about time physically present some are and have been residence is very different labor they were there a year and they expected to be there a couple more years during the medical treatment of one of the children i mean that's more than summer camp it's more than a vacation and it's more than a temporary project i mean they were they bought a house the in laws live nearby for kerry the kids were in school kids were doing well and i think you know that that seems like both intent and accusation against the decision of the court here  indefiniteness the district court did not require either of those things there or the issue is is that there is there are these cases and there is and there's dozens of them that talk about these temporary moves for a specific purpose with an int application for a permanent peace just like in this case and and and the judge in new mexico rejected that as a basis for determining there was this intent to reside there permanently at the end of the day since mr was isn't challenging challenging any factual finding here you know we're really left with you got this shared is it no go review the application of those facts to the  xcuse me even if it was the novo the underlying factual findings are so strong that there really isn't an opportunity to for any kind of a reversal of the no basis i mean you know it would be almost impossible for you know foreign parent to when i mean i i think it's just seems to me that judge shelby is really stacked the decks here for  i i think the answer to that question is that it had had there not been a and agreed upon specific intent to return that's what you think that's what would distinguish this case from the other ones were ex pats move away and marriages break up correct correct i think you when you look at the cases where people move they move all of their possessions they leave nothing of behind or nothing of any importance behind and they and they leave either indefinitely or permanently or that or that or they leave with those specific plan as far as when they're going to return then it's a different case but here they had a system in australia and so there was not a specific time period as far as i'm not months or years but it was in till that was completed was the intention but there was always the specific intention to have the new visiting country be the location because usually they live in military housing they don't take all their furniture with them and they expect after a bill to reassign with that they will move so basically that would end up with almost a person a rule that you're never going to look at the host country for this question for the hague convention if this is a military well i think it's a challenge in that context when when when there are limited and narrow military deployments i mean there are there are cases where where that does exist but but i think that you know when when people come to a specific agreement as far as the the and when and when you don't have groups that are put down that would be that would be sufficient to change that additional residence that's it becomes a real challenge if you're living in military housing if you're not integrated yourself into the society of the new country and you're just living on a military base and i think you both have a hard time both on the climate is ation and of the shared parental intent can i come back to where we started with you held or the children today i believe were just a year past the trial so they would be thirteen approximately ten or eleven and seven or eight  determination of custody i think only if only if they were both residing here the matter was registered here and then you had a new procedure i knew proceeding to modify that ok