[00:00:00] Speaker 03:
All right, and I do want to, because I might forget, I mean, in advance, I do want to thank both counsel for being here and Mr. Paris, however, and we appreciate everyone always being here, but I want to say that we, when parties do things pro bono, which we do, the court does appreciate that, because on difficult legal issues, it's helpful to the court,

[00:00:26] Speaker 03:
to have pro bono counsel as well.

[00:00:28] Speaker 03:
So thank you for doing this matter pro bono and that the court is appreciative.

[00:00:35] Speaker 03:
And I know I speak for my colleagues as well.

[00:00:37] Speaker 03:
All right.

[00:00:38] Speaker 03:
So Ms.

[00:00:40] Speaker 03:
Stapleton, please state your appearance and go forward.

[00:00:45] Speaker 02:
Thank you Judge Callahan and may it please the court.

[00:00:48] Speaker 02:
Anna Stapleton of Paul Weiss and it is my honor this morning to serve as court appointed amicus in support of appellant Arnaud Parris.

[00:00:55] Speaker 02:
I would like to reserve two minutes for rebuttal.

[00:00:57] Speaker 03:
All right well you watch your time but this is an interesting case and has a lot of legal issues so I suspect I'll give you the two minutes regardless but we may have a number of questions for both of you.

[00:01:11] Speaker 02:
Thank you, Judge Callahan.

[00:01:13] Speaker 02:
The fugitive dis-entitlement doctrine, first developed in the context of criminal appeals, imposes an exceptionally harsh sanction that must be disfavored in civil contexts, and particularly so in the context of litigation under the Hague Convention, a treaty among nations that lacks the backdrop of American common law.

[00:01:33] Speaker 02:
In light of that context, and under the particular circumstances of this case, dismissal of Mr. Paris's petition for return was reversible error.

[00:01:41] Speaker 02:
To begin with the particular circumstances of this case.

[00:01:45] Speaker 04:
Council, can I ask you a question?

[00:01:48] Speaker 04:
Why isn't the fact that he had a warrant issued, and I understand that it was not issued until after Mr. Parrott had left, why isn't that fact something that we can consider that he's using the courts even though there is this active warrant in Oregon?

[00:02:04] Speaker 02:
The warrant was issued not only after Mr. Parris had left the country, but also for conduct after he had already left the country.

[00:02:11] Speaker 02:
So it's a warrant based on his failure to appear at a remedial contempt hearing.

[00:02:18] Speaker 02:
That failure to appear, of course, happened because he was already in France and declined to return.

[00:02:24] Speaker 02:
I think not the fact that the

[00:02:27] Speaker 02:
court can't take that into account.

[00:02:29] Speaker 02:
It's simply that under this court's precedence, it doesn't render Mr. Parris a fugitive.

[00:02:34] Speaker 02:
So broadly speaking, a fugitive is someone who has fled or has hidden from the court's jurisdiction.

[00:02:39] Speaker 02:
And here, Mr. Parris has done neither.

[00:02:42] Speaker 02:
As we've said, he left prior to the warrant being issued.

[00:02:47] Speaker 04:
Well, he took the children contrary to the court's order.

[00:02:51] Speaker 04:
I mean, he wasn't exactly abiding by the court's order.

[00:02:55] Speaker 02:
Absolutely, Your Honor, and I'm certainly not here to condone that conduct.

[00:02:58] Speaker 02:
There's no question that he removed the children from Oregon contrary to the temporary restraining order.

[00:03:04] Speaker 02:
But I think the question is one of his fugitivity, and particularly his fugitivity at the time that the current litigation became pending.

[00:03:13] Speaker 02:
By that point, the children had returned to the United States.

[00:03:17] Speaker 02:
And I would point out that in the context of Hay Convention litigation, that was necessarily the case.

[00:03:22] Speaker 02:
The federal district court here would not have had jurisdiction to decide a Hague Convention

[00:03:28] Speaker 02:
petition for children who remained outside the country.

[00:03:32] Speaker 02:
And so the question is his fugitivity, as this court recognized in Tarrabellion, his fugitivity at the time that this litigation became pending.

[00:03:40] Speaker 02:
At that point, the children are here.

[00:03:41] Speaker 02:
And he is only subject to a warrant that was issued, yes, before this case was filed, but after he had left the country.

[00:03:49] Speaker 03:
So she took the children back later, too.

[00:03:52] Speaker 02:
She did, Your Honor.

[00:03:53] Speaker 03:
So arguably, both of them

[00:03:57] Speaker 03:
committed the same acts to have, I guess there's a saying in the law, possession is nine-tenths of the law.

[00:04:04] Speaker 03:
And it appears that both of these parents seem to think if they had the kids.

[00:04:08] Speaker 03:
that put them in a better position, that being aside.

[00:04:12] Speaker 03:
I'm a little bit curious about Mr. Parris already.

[00:04:16] Speaker 03:
Didn't he already lose his first Hague Convention petition?

[00:04:21] Speaker 03:
So why isn't he precluded from filing this second one?

[00:04:25] Speaker 03:
Doesn't 22 USC section 9003G, the full faith and credit provision of ACARA,

[00:04:34] Speaker 03:
mean that the District of Oregon is bound by its earlier decision denying his first petition?

[00:04:38] Speaker 02:
In this circumstance, no, Your Honor.

[00:04:40] Speaker 02:
So hate convention petitions are specific to removals, and that petition was with regard to a prior allegedly wrongful removal or retention.

[00:04:51] Speaker 02:
In this circumstance, Mr. Parris is challenging new conduct.

[00:04:56] Speaker 02:
That is the removal of the children from France in 2024.

[00:05:00] Speaker 03:
So they voluntarily dismissed the appeal

[00:05:03] Speaker 03:
In front of the Ninth Circuit, I was just a little, I didn't really know, with prejudice.

[00:05:07] Speaker 03:
So what you're saying, that's different conduct.

[00:05:10] Speaker 03:
So it's not precluded.

[00:05:14] Speaker 02:
That's right, Your Honor.

[00:05:15] Speaker 02:
But both factually and legally, the subject of the two petitions is completely separate.

[00:05:21] Speaker 02:
I would also point out that Judge McShane's order on the first Hiccup-Menschen petition does specifically state that the children were to remain in Oregon through the 2022 to 2023 school year.

[00:05:33] Speaker 02:
So it's not clear even if it had been, even if it was sort of relevant to questions of something akin to res judicata, it's not clear that that order would continue to have effect beyond 2023.

[00:05:48] Speaker 03:
So I think he are, I'm sorry, I'll, I'll give it to you and just, I have one.

[00:05:52] Speaker 03:
He argues that the fugitive dis-entitlement doctrine as an equitable doctrine cannot even apply to the Hague convention proceedings.

[00:06:00] Speaker 03:
Do you agree with that?

[00:06:01] Speaker 03:
I think there's a Lozano case, which is on tolling and talking about treaties and American

[00:06:08] Speaker 03:
equitable.

[00:06:10] Speaker 03:
What's your position on that?

[00:06:12] Speaker 02:
Our view is that that's a broader case, excuse me, a broader issue than this court needs to resolve in order to resolve this case.

[00:06:19] Speaker 02:
And as amicus, I would say there are good reasons for the court to hesitate before reaching so broadly.

[00:06:24] Speaker 02:
There are other contexts, for example, in the cases like Sasan and Pessin that the district court relied on.

[00:06:30] Speaker 02:
where the circumstances would mean that dismissal under disentitlement doctrine would sort of be synergistic with the purposes and aims of the Hague Convention.

[00:06:40] Speaker 02:
And I think it would be worth reserving that question for a case in which it is necessary to decide.

[00:06:46] Speaker 02:
Here, the court, I think, could assume, even assuming that disentitlement can ever apply in the Hague Convention context,

[00:06:53] Speaker 02:
The elements of disentitlement are not met here and so dismissal was not warranted.

[00:06:59] Speaker 02:
Judge Smith, I'm sorry.

[00:07:02] Speaker 05:
This of course is a most unusual case.

[00:07:06] Speaker 05:
You have an organ trial court that roughly a year after the children were removed issued a warrant.

[00:07:15] Speaker 05:
You have the mother later on bringing back the children in contrast to a French decree that said the same thing there.

[00:07:25] Speaker 05:
The children are here now.

[00:07:28] Speaker 05:
You have a court of appeals from the state of Oregon that said that the trial court's action was not subject to the fugitive entitlement doctrine.

[00:07:40] Speaker 05:
What does that mean?

[00:07:41] Speaker 05:
This is the court that supervises the one that issued the warrant.

[00:07:46] Speaker 05:
Does that invalidate the war in any way?

[00:07:50] Speaker 05:
What effect does it have?

[00:07:53] Speaker 05:
This is really an interesting situation.

[00:07:57] Speaker 05:
This is a very punitive doctrine, very punitive doctrine, and Judge Aiken applied a first circuit doctrine, which is contrary to our current doctrine.

[00:08:09] Speaker 05:
It seems like somebody put this all in a mixmaster and just stirred it around.

[00:08:16] Speaker 05:
In your view, I think you already answered my colleague's concept, we don't need to get the bigger question whether this doctrine can ever apply in the Hague contest.

[00:08:25] Speaker 05:
But in your view, the judge, of course not intentionally, just got the law wrong and we need to reverse it for that reason, is that your position?

[00:08:33] Speaker 02:
That's right, Your Honor.

[00:08:34] Speaker 02:
So the lower court's decision was legally erroneous for two reasons.

[00:08:41] Speaker 02:
In our view, a failure to consider whether Mr. Parris was indeed a fugitive under this court's precedence and the failure to account for the hate convention context.

[00:08:50] Speaker 02:
I would add to your point, Judge Smith, and I think to Judge Callahan's earlier point, this kind of circumstance of the dueling custody orders from courts of different nations

[00:09:01] Speaker 02:
is truly the heartland of the Hague Convention, right?

[00:09:04] Speaker 02:
And understanding that this has been a long and convoluted and burdensome process for the parties, I think the best road to resolution of those issues is adjudication of the Hague Convention petition on the merits.

[00:09:18] Speaker 02:
That is precisely what the district court would have to sort out on remand.

[00:09:23] Speaker 02:
And we would ask that should the court reverse, it would reverse and remand with instructions to adjudicate that petition.

[00:09:30] Speaker 03:
Let me just as a I'm you know since I was I'm a former trial judge in the state courts and while family law was not not my assignment I did family law cases so I think that these things do come up.

[00:09:43] Speaker 03:
So hypothetically assume that it was reversed and it goes back.

[00:09:49] Speaker 03:
I'm trying to see

[00:09:51] Speaker 03:
what, as a practical matter.

[00:09:52] Speaker 03:
So if it says, all right, that Mr. Parris is not kicked out on that basis, then it's adjudicated there.

[00:10:01] Speaker 03:
I'm looking down the line, and then I know that the district court previously, Mr. Then is going to have a hearing, will have a hearing, and decide the merits of the application.

[00:10:18] Speaker 03:
then Mr. Parris is going to ask to appear remotely again because he's thinking in his mind, I'm thinking if he puts a toe in the courtroom and having been a former trial judge that he's going into custody.

[00:10:31] Speaker 03:
He'll get remanded because there isn't, regardless of that doctrine, that he has an outstanding warrant of that court.

[00:10:41] Speaker 03:
So then he goes, and the district court previously said you can't,

[00:10:46] Speaker 03:
appear remotely, which I think it is within the discretion of a court to run proceedings in the way that they want to.

[00:10:54] Speaker 03:
And I could say people can't appear remotely, or they can, or whatever, however I decide I want to handle a proceeding.

[00:11:03] Speaker 03:
So then that court's going to decide and can decide whether there's remote appearances or how that handles, right, and then what the legal issues are.

[00:11:15] Speaker 03:
Is that the practical way this works?

[00:11:17] Speaker 02:
For absolute clarity, Your Honor, so on remand, this

[00:11:20] Speaker 02:
the petition would be before Judge Aiken in the Federal District Court.

[00:11:24] Speaker 02:
To my knowledge, Judge Aiken had not ruled on any requests to appear remotely.

[00:11:30] Speaker 02:
The motion to dismiss was decided without a hearing.

[00:11:33] Speaker 02:
And so, of course, it would be up to Judge Aiken to make that decision in the context of adjudicating the petition.

[00:11:38] Speaker 05:
Forgive me.

[00:11:39] Speaker 05:
I'm not based in Oregon, but is Judge Aiken still sitting?

[00:11:45] Speaker 05:
I don't know.

[00:11:45] Speaker 05:
I know she took at least senior status.

[00:11:49] Speaker 03:
Well, we have a nod on the other side, but it doesn't really matter what were the others.

[00:11:54] Speaker 03:
Someone on the district court will be there.

[00:11:57] Speaker 02:
That's right, Your Honor.

[00:11:57] Speaker 02:
Thank you.

[00:11:58] Speaker 02:
And to that point, the question of the adjudication of the petition, it's completely ordinary in the context of Hague Convention litigation.

[00:12:08] Speaker 02:
for one party to be outside of the United States, right?

[00:12:11] Speaker 02:
Because the whole purpose is that somebody is seeking return of children to a foreign country.

[00:12:17] Speaker 02:
And so this court has recognized in Quaylor, that's not an unusual circumstance.

[00:12:24] Speaker 02:
An unusual circumstance.

[00:12:25] Speaker 02:
Exactly.

[00:12:25] Speaker 02:
And so that's relevant also to the sort of justifications of the disentitlement doctrine, questions like enforceability, inefficiency, abandonment,

[00:12:38] Speaker 02:
Again, the fact that Mr. Parris is outside of the country is completely ordinary in the context of this type of litigation.

[00:12:45] Speaker 03:
All right.

[00:12:45] Speaker 03:
Now, does my colleagues have any additional questions?

[00:12:48] Speaker 03:
So we've taken you significantly over.

[00:12:51] Speaker 03:
So I'll give you a minute to wrap up in your time of things you might want to say.

[00:12:56] Speaker 03:
And then I'll give you two minutes of rebuttal.

[00:12:58] Speaker 03:
I'm expanding the argument time just so that we can have our questions answered.

[00:13:02] Speaker 03:
Thank you.

[00:13:03] Speaker 02:
Thank you, Judge Callahan, and I think before sitting down for now, the one thing I would emphasize is I think there was a flavor of question about sort of federalism and the relationship between the federal district court proceedings here and the state court proceedings.

[00:13:19] Speaker 02:
That's another sort of circumstance that is routine in the Hay Convention context.

[00:13:26] Speaker 02:
It's something that this court dealt with quite directly in Holder versus Holder, where there was a question about staying federal court proceedings in light of California state court custody proceedings.

[00:13:38] Speaker 02:
And this court says, no, the Hague Convention litigation is separate and has to go forward under the terms of the treaty.

[00:13:45] Speaker 02:
And I would also emphasize, to the extent that there is concern about the dignity of the state court proceedings, this court made clear in Mastro that disregard for the authority of a separate court is not sufficient reason to rise to the level of necessity.

[00:14:01] Speaker 04:
I know what Mastro says.

[00:14:02] Speaker 04:
I understand the precedent, and sometimes we have to follow precedents that we may not

[00:14:12] Speaker 04:
Agree with I just think it's a little crazy that that we give lesser weight to a decision For disregarding a state court order because it's not its own order But I understand that that's the that's the law

[00:14:31] Speaker 02:
And it's not just an issue of state versus federal court.

[00:14:34] Speaker 02:
Of course, in Maastra, the court was addressing proceedings in a bankruptcy court that had been disregarded by the litigant there.

[00:14:41] Speaker 02:
And so I certainly don't mean to suggest that the state court carries less weight.

[00:14:46] Speaker 02:
The problem when it comes to the idea of the dignity of the courts is that, of course, this court maintains its dignity by

[00:14:55] Speaker 02:
addressing cases, right, deciding cases as the Supreme Court made clear in Degan.

[00:15:01] Speaker 02:
And here in the context of the Hague Convention where there are clear directions in the Hague Convention that petitions are to be litigated promptly, particularly high importance on going forward with the adjudication when it comes to questions of mutual respect of the courts of the signatory countries.

[00:15:22] Speaker 03:
All right, thank you for your argument.

[00:15:24] Speaker 03:
And you have two minutes on rebuttal.

[00:15:26] Speaker 03:
All right, Mr. Paris, you have three minutes.

[00:15:30] Speaker 00:
Thank you, Your Honor.

[00:15:32] Speaker 00:
When I left with the children, I was given approval by the federal authorities in San Francisco who refused the Oregon order and considered it invalid.

[00:15:43] Speaker 00:
And the same thing went for the French consulate who checked with Washington if the order from Oregon was still valid or not.

[00:15:50] Speaker 00:
And they were told that it was invalid.

[00:15:52] Speaker 00:
So I only followed permission from the US federal authorities and the French consular authorities before getting on the plane.

[00:15:59] Speaker 00:
As a matter of fact, I was accompanied by the federal authorities to board the plane with the children.

[00:16:08] Speaker 00:
If when I returned to France with a children mother so that it was in violation of US law, she could have filed a Hague action.

[00:16:17] Speaker 00:
And it's free in France to do so.

[00:16:19] Speaker 00:
It's very fast.

[00:16:20] Speaker 00:
She didn't, which goes to say about the case about me removing the children in the same levels as she removed the children from France.

[00:16:30] Speaker 00:
These are completely different stories to answer your honor's question from earlier.

[00:16:36] Speaker 00:
And I have evidence of that, of course, in the record.

[00:16:38] Speaker 00:
Regarding my request to do a de novo review in my pleadings, the reason is because it's been a year and a half since the children haven't been able to do even a single video call with me because mother is refusing them to do so.

[00:16:52] Speaker 00:
They haven't seen their French family for a year and a half.

[00:16:55] Speaker 00:
And irreparable harm is taking place.

[00:16:58] Speaker 00:
And the only way to prevent it is to do a de novo review from this court.

[00:17:02] Speaker 00:
Otherwise, it would take a lot more time hurting the children to go into remanded.

[00:17:08] Speaker 00:
Monaski and Abbott, as case law showed, that the novel review is possible in a hate case.

[00:17:14] Speaker 00:
And your honor could do that here.

[00:17:18] Speaker 00:
If the court wants to expedite things about the illegal removal from France, since there is already a finding that France was a habitual residence from a federal judge, as mentioned earlier, Judge McShane,

[00:17:30] Speaker 00:
This honorable court is allowed by Article 15 of the Hague Convention to ask that directly to France.

[00:17:37] Speaker 00:
And France will have to answer the question whether we moved in violation of French law on French soil, which is the only question left in front of this court if this court accepts to remand the case or to consider the case de novo review.

[00:17:49] Speaker 00:
Five days before the abduction, I was in front of the appeal court of Paris with mother who assured the judge that she would never dare to take the children outside of France.

[00:18:00] Speaker 00:
And she did five days later.

[00:18:02] Speaker 00:
But the judge asked us to do a mediation.

[00:18:04] Speaker 00:
And two days before abducting the children, she was in mediation with me.

[00:18:08] Speaker 00:
And I agreed to give full custody, sorry, shared custody to mother three months of the year in France with an apartment free and three months to go and see the grandparents in Oregon, which means mother could have shared 50-50 custody in France if the children are returned by this honorable court.

[00:18:28] Speaker 00:
there is a new French appeal judgment who is asking the same thing, and please consider the French new appeal judgment as part of the record, because this would show the court that France wants both parents in the life of these children, and so do I. You have 11 seconds, so if you want to wrap up.

[00:18:49] Speaker 03:
Otherwise, I will give the 11 seconds to your pro bono lawyer.

[00:18:54] Speaker 00:
Oh, you're over.

[00:18:56] Speaker 03:
I'm sorry, you're over.

[00:18:57] Speaker 03:
It's the red light.

[00:18:57] Speaker 03:
I read it wrong.

[00:18:59] Speaker 03:
OK.

[00:18:59] Speaker 03:
So thank you for your comments.

[00:19:02] Speaker 03:
And so I'm going to listen to the other side.

[00:19:04] Speaker 03:
We'll listen to the other side, and then your pro bono lawyer will handle rebuttal.

[00:19:08] Speaker 03:
Thank you.

[00:19:09] Speaker 03:
All right.

[00:19:10] Speaker 03:
Good morning.

[00:19:11] Speaker 01:
Good morning, Your Honor.

[00:19:12] Speaker 01:
Katrina Seipel is my name, and I represent Appellee Heidi Brown.

[00:19:16] Speaker 01:
May it please the court, Mr. Parris and counsel.

[00:19:19] Speaker 01:
This case is about a man who seeks an equitable remedy in a United States court pursuant to the Hague Convention when he refuses to equitably litigate intertwined cases in other courts of this country.

[00:19:32] Speaker 01:
The district court granted Mother's motion to dismiss pursuant to the fugitive dis-entitlement doctrine.

[00:19:37] Speaker 01:
And this court may only reverse now if it finds that the district court abused its discretion.

[00:19:42] Speaker 04:
Well, hold on.

[00:19:42] Speaker 04:
I mean, one of the things I think, and I think Judge Smith mentioned this,

[00:19:48] Speaker 04:
is that the state court had the opportunity to apply a similar doctrine.

[00:19:52] Speaker 04:
It's not necessarily the entitlement doctrine.

[00:19:54] Speaker 04:
I think it's pursuant to Pruitt under state law.

[00:19:58] Speaker 04:
And they chose not to do that.

[00:20:00] Speaker 04:
Why should we now, in federal court, apply the very doctrine that the state court itself decided not to apply?

[00:20:06] Speaker 01:
Well, there are different analysis in state court and this federal court.

[00:20:10] Speaker 01:
What I can say, Your Honor, is that it's my understanding that there have been countless

[00:20:15] Speaker 01:
proceedings, lawsuits between Mr. Parris and Ms.

[00:20:18] Speaker 01:
Brown since this Hague petition was filed.

[00:20:21] Speaker 01:
While one of them may not have been dismissed pursuant to this similar doctrine, a number of others have been dismissed pursuant to this doctrine.

[00:20:29] Speaker 05:
Wait a minute.

[00:20:31] Speaker 05:
Did I understand you that there have been several cases involving this where the fugitive entitlement doctrine has been brought up?

[00:20:38] Speaker 01:
That's correct, Your Honor.

[00:20:39] Speaker 05:
And we're in the record.

[00:20:41] Speaker 05:
What are those cases?

[00:20:43] Speaker 01:
Well, there are cases between Ms.

[00:20:45] Speaker 01:
Brown and Mr. Paris in state court.

[00:20:48] Speaker 01:
I don't have the specific numbers.

[00:20:49] Speaker 01:
I would be happy to submit them via letter to this court following this argument.

[00:20:54] Speaker 01:
I cannot say definitively what is in the record because many of them have happened since the petition was filed.

[00:21:01] Speaker 05:
Well, forgive me.

[00:21:01] Speaker 05:
Are you just saying it's part of the same proceeding the motions were made about the fugitive

[00:21:08] Speaker 05:
entitlement doctrine, but it's part of the same case.

[00:21:11] Speaker 05:
It's not a whole bunch of different cases.

[00:21:12] Speaker 03:
It's all over their kids, custody of their children.

[00:21:14] Speaker 05:
It's not a whole bunch of different cases, right?

[00:21:16] Speaker 01:
Well, they're all intertwined.

[00:21:18] Speaker 01:
So Mr. Paris moved to register the French judgment in Oregon.

[00:21:23] Speaker 01:
That case was dismissed, appealed, I believe that one was dismissed pursuant to this doctrine.

[00:21:27] Speaker 01:
He then filed a new case seeking to register the French judgment in Oregon State Court.

[00:21:32] Speaker 01:
So in that respect, it's the same, but it's

[00:21:35] Speaker 01:
has a new case number associated with it.

[00:21:36] Speaker 03:
All right.

[00:21:36] Speaker 03:
But we're all talking in state court.

[00:21:39] Speaker 03:
In state court, they're all fighting over the custody of their children.

[00:21:42] Speaker 03:
Correct.

[00:21:43] Speaker 03:
All right.

[00:21:43] Speaker 03:
Correct.

[00:21:46] Speaker 03:
So do other contracting parties to the Hague Convention recognize the fugitive dis-entitlement doctrine?

[00:21:54] Speaker 03:
I mean, I was looking at Lozano when it's talking about tolling.

[00:21:59] Speaker 03:
And they're saying the Hague Convention is a bunch of countries that agree to a treaty.

[00:22:05] Speaker 03:
And the fugitive disentitlement is a very specifically American common law, right?

[00:22:13] Speaker 01:
Correct.

[00:22:14] Speaker 03:
And in Lozano, I think for a majority, Justice Thomas wrote that we don't import American common law concepts and put them on interpreting all these parties that never agreed to it.

[00:22:30] Speaker 01:
I understand the question, Your Honor.

[00:22:32] Speaker 01:
What I can say is I don't know of another treaty partner signatory that recognizes something like the Fugitive Disentitlement Doctrine.

[00:22:39] Speaker 01:
But what I can say is that our other circuits in this country recognize it.

[00:22:43] Speaker 01:
And specifically, Mr. Parris recently brought to the Court's attention

[00:22:46] Speaker 01:
The case of Carpengo v. Lindertz where the Third Circuit determined that the equitable doctrine of unclean hands does not apply to a Hague Convention case, but the court in that case specifically footnoted that it is okay and it is warranted for the fugitive dis-entitlement doctrine to be applied in Hague Convention cases when warranted.

[00:23:06] Speaker 03:
Well, OK, but didn't Miss Brown take the children out of France after the French court's rule that neither parent could take the children to?

[00:23:15] Speaker 03:
So wouldn't she be a fugitive in France?

[00:23:17] Speaker 01:
No, Your Honor.

[00:23:18] Speaker 01:
She took the children out of France in accordance with the Oregon state judgment

[00:23:23] Speaker 03:
All right, but what did the French court say?

[00:23:25] Speaker 01:
The French court said that both parties have joint custody to determine where these children are.

[00:23:29] Speaker 03:
Did she have permission to take the children in the French court?

[00:23:32] Speaker 01:
She did not seek permission.

[00:23:34] Speaker 01:
She was not prohibited from doing so, is my understanding.

[00:23:37] Speaker 05:
That's contrary to what Mr. Brown just said.

[00:23:40] Speaker 05:
You're saying he's wrong?

[00:23:41] Speaker 01:
I am.

[00:23:42] Speaker 01:
Okay.

[00:23:42] Speaker 01:
Yes.

[00:23:44] Speaker 01:
In the case of Carpengue v. Lindeertz, as I was saying, they specifically footnoted that it is okay to apply this equitable doctrine in these Hague Convention cases.

[00:23:53] Speaker 01:
But Amicus makes the point in their brief that when we're talking about equity, the fugitive dis-entitlement doctrine should not be applied to the Hague Convention because it undermines the very purpose of the Hague Convention.

[00:24:05] Speaker 03:
Well, Acara provides that Congress recognizes the need for uniform international interpretation of the Convention.

[00:24:12] Speaker 03:
And if other countries don't recognize the fugitive entitlement doctrine, wouldn't its application be in violation of ACARA?

[00:24:23] Speaker 01:
I wouldn't say it would be in violation of ACARA, because there's not that I am aware of cases, law, in other countries that says it would be error to apply the fugitive disentitlement doctrine.

[00:24:34] Speaker 05:
Let me ask you this.

[00:24:36] Speaker 05:
Judge Aiken applied Walsh versus Walsh, the First Circuit case.

[00:24:40] Speaker 05:
Terrabellum, our case, is different.

[00:24:44] Speaker 05:
Do you agree that Terrabellum is the controlling law in our jurisdiction?

[00:24:49] Speaker 01:
I do believe that Terrabellum is the controlling law.

[00:24:51] Speaker 03:
Well, you have one of the people on Terrabellum sitting right here.

[00:24:54] Speaker 03:
Indeed.

[00:24:55] Speaker 05:
So if that's the case, how do you square the application of the doctrine, in this case, applying Terrabellum,

[00:25:04] Speaker 01:
Because the district court, despite not specifically applying Tarabellion, still applied the factors of Tarabellion.

[00:25:11] Speaker 01:
And Menaskey- How can you say that?

[00:25:13] Speaker 01:
Well, the factors of terebellion, factor number one pertains to whether the case is civil or criminal.

[00:25:18] Speaker 05:
And you agree this is civil, right?

[00:25:20] Speaker 05:
It's not criminal.

[00:25:21] Speaker 01:
I agree.

[00:25:22] Speaker 01:
Absolutely.

[00:25:22] Speaker 01:
And the district court noted as much in its opinion and specifically citing to Deegan and Mastro said that I am only dismissing this case as a matter of necessity.

[00:25:32] Speaker 01:
It's necessary to effectuate the underlying concerns of the doctrine.

[00:25:36] Speaker 01:
As to factor number two of terebellion, it pertains to Mr. Parris' fugitive status.

[00:25:41] Speaker 03:
The district court directly addressed this factor on page nine of its opinion now amicus now when he took the kids I understand I understood him to say at customs here.

[00:25:54] Speaker 03:
He got in the United States He got questioned, but they let him go he they could they were convinced he could take them and then he there and when in France

[00:26:04] Speaker 03:
that that same thing went on.

[00:26:06] Speaker 03:
But did he have the outstanding warrant when he took the kids?

[00:26:10] Speaker 01:
He did not when he took the kids.

[00:26:11] Speaker 01:
It was issued after he took the kids.

[00:26:13] Speaker 03:
All right.

[00:26:14] Speaker 03:
What effect does that have?

[00:26:15] Speaker 03:
And I think Amica's counsel said that's an important factor.

[00:26:20] Speaker 01:
Right.

[00:26:20] Speaker 01:
So Amica's and Mr. Paris both argued that he's not a fugitive because he left the country and the warrant was issued after he left.

[00:26:28] Speaker 01:
I filed a letter with this court yesterday directing the court's attention to the case of United States versus $671.160 in US currency.

[00:26:37] Speaker 01:
And the same argument was made in that case that Mr. Paris makes here, that someone who's in a jurisdiction of the United States then lawfully returns to their home country and then thereafter is subject to a criminal case or a warrant is not a fugitive.

[00:26:52] Speaker 01:
But the court in that case, this court, the Ninth Circuit, made abundantly clear

[00:26:56] Speaker 01:
that a person is still a fugitive if while they are legally outside the grounds of the United States and then become subject to a criminal case or a warrant, they decide not to return to the U.S.

[00:27:07] Speaker 01:
to face that pending charge, to face that pending warrant.

[00:27:10] Speaker 01:
That's a criminal case, right?

[00:27:11] Speaker 03:
Does that matter?

[00:27:13] Speaker 01:
I don't believe it does matter, no, because it still pertains to the Fugitive Disentitlement Doctrine and the consideration of fugitives.

[00:27:20] Speaker 01:
And that's what we're talking about here.

[00:27:22] Speaker 05:
Mr. Parris is... But with respect, you're a good lawyer.

[00:27:25] Speaker 05:
We're talking about children here.

[00:27:26] Speaker 05:
Correct.

[00:27:27] Speaker 05:
This is not a bunch of thugs.

[00:27:30] Speaker 05:
These are people concerned about their children.

[00:27:33] Speaker 05:
And it just seems startling to me that even though you can define what happened here, that he is a fugitive, he'd left the country.

[00:27:43] Speaker 05:
He's a father who wants to be with his children.

[00:27:45] Speaker 05:
The mother wants to be with her children.

[00:27:47] Speaker 05:
It's a divorce family law kind of a thing.

[00:27:50] Speaker 05:
And the whole concept of the fugitive Disentitlement Doctrine is to not let the thugs and the bad people get away with this stuff.

[00:27:59] Speaker 05:
This is quite different, is it not?

[00:28:01] Speaker 01:
It's different, Your Honor, yes, but what I can say is that the Hague Convention was enacted to address wrongful removal of children from a country that the children were rightfully located in to begin with.

[00:28:12] Speaker 01:
And here, Mr. Paris left the country in violation of a court order with the children that resulted in a warrant for his arrest.

[00:28:21] Speaker 03:
A year later.

[00:28:22] Speaker 03:
Now, these children are citizens of both countries, correct?

[00:28:26] Speaker 03:
Correct.

[00:28:27] Speaker 03:
Before the parents went sideways and decided to split up, these children have lived both in the United States and France, right?

[00:28:36] Speaker 03:
Correct.

[00:28:37] Speaker 03:
Okay.

[00:28:40] Speaker 01:
I'm over my time.

[00:28:41] Speaker 01:
No, keep going.

[00:28:42] Speaker 03:
Well, I think as long as we have questions, we're going to keep going.

[00:28:46] Speaker 04:
You were going through the considerations of the district court as it pertains to, in your view, the law.

[00:28:56] Speaker 04:
on the disentitlement doctrine.

[00:28:59] Speaker 04:
And you were going to go, could you address the third factor and how the district court dealt with that?

[00:29:05] Speaker 04:
Because I'm not so sure that that factor might be in your favor.

[00:29:10] Speaker 01:
Certainly.

[00:29:10] Speaker 04:
Or may not, actually.

[00:29:11] Speaker 01:
Yeah.

[00:29:11] Speaker 01:
So the third factor of terriblian pertains to whether the traditional justifications of abandonment, deterrence, dignity of the courts, efficiency, and enforceability support dismissal.

[00:29:22] Speaker 01:
And what I want to note about this is that when Terrabellion declares this third factor, the court cites to Deegan.

[00:29:28] Speaker 01:
And I think that's important to note because the district court, when issuing its opinion, specifically cited to Deegan.

[00:29:34] Speaker 01:
And that's beginning on page 12 of the opinion.

[00:29:38] Speaker 01:
Now, the district court talked about Mr. Parris' disdain for Oregon courts, but also noted that in line with Deegan was not going to specifically consider that in making its ruling.

[00:29:51] Speaker 04:
The court in Tarrabellion... I guess I need to understand what was that based on the disdain for him requesting to appear remotely, or I don't understand this.

[00:30:00] Speaker 01:
It was for a number of things, disregarding the state court's orders to appear in person, disregarding the state court's orders to return to Oregon.

[00:30:09] Speaker 01:
That was the whole thing.

[00:30:11] Speaker 05:
That's the whole thing, that he didn't return.

[00:30:15] Speaker 05:
And there was a reason for that.

[00:30:18] Speaker 05:
But when it boils right down to it, the third factor was that.

[00:30:21] Speaker 05:
So that's what I wrestle with.

[00:30:23] Speaker 05:
And you have to look at the totality of the circumstances, of course, as well.

[00:30:28] Speaker 05:
And again, this is not a bunch of thugs.

[00:30:32] Speaker 05:
It's your parents.

[00:30:34] Speaker 05:
And you're dealing with equitable, important, personal issues here.

[00:30:40] Speaker 05:
And the idea that someone would be unable to respond, with respect, in this case, to his children,

[00:30:48] Speaker 05:
seems quite contrary to what the Hague Convention was intended to do.

[00:30:53] Speaker 05:
Help me with that.

[00:30:54] Speaker 05:
What am I missing?

[00:30:55] Speaker 01:
Mr. Parris would be able to respond if he availed himself of the other courts in this country.

[00:31:01] Speaker 03:
Well, but first the Hague Convention says who's going to decide, right?

[00:31:05] Speaker 03:
Correct.

[00:31:05] Speaker 03:
And he got kicked out by using the fugitive dis-entitlement doctrine.

[00:31:11] Speaker 03:
That never was decided.

[00:31:12] Speaker 03:
Now, we don't know if we reversed, because we said that Terebellion on the third factor, that you're not right, let's say.

[00:31:21] Speaker 03:
It would go back.

[00:31:22] Speaker 03:
That doesn't mean he wins.

[00:31:23] Speaker 03:
It means that whatever district judge is going to decide who gets to decide custody of these children, right?

[00:31:30] Speaker 01:
That's correct, Your Honor.

[00:31:31] Speaker 03:
And neither of these parents will be free of their behavior, whether it's a judge in France, whether it's a judge in Oregon, or whatever.

[00:31:41] Speaker 03:
They're both going to be held to account to what's in the best interest of the children and who will obey court orders.

[00:31:49] Speaker 03:
That's correct.

[00:31:50] Speaker 03:
But you want to just kick them out before a court even decides where the right place is.

[00:31:58] Speaker 03:
And that's based on because he took a warrant issued after, and then he won't show up now.

[00:32:07] Speaker 01:
Not based solely on the warrant, but based off of his wrongful acts that led to the warrant.

[00:32:12] Speaker 01:
Again, I'll revert to that the Hague Convention is meant to enforce the wrongful removal of children from a country that they are rightfully into beacon with.

[00:32:21] Speaker 01:
Your colleague acknowledged that Ms.

[00:32:23] Speaker 01:
Brown prevailed in the first Hague case that Mr. Paris brought against her.

[00:32:27] Speaker 01:
After that, the Oregon State Court, the parties were in the middle of litigating and said neither of you are allowed to remove these children from Oregon, and then Mr. Paris did just that.

[00:32:37] Speaker 01:
the children were never rightfully in France because Mr. Paris wrongfully removed them in violation of the court order.

[00:32:44] Speaker 01:
So it's not just about the limits.

[00:32:45] Speaker 03:
Well, and if after reviewing this, the judge says custody should be decided in Oregon and any family law judge that decides that and decides what visitation is, what custody is, all of those things can take into consideration

[00:33:05] Speaker 03:
the conduct of both parties at that time, and actually the best interest of the children, which I don't know, they both have ideas about what they think the best interest of the children is, but that's why a court gets to decide that, because as Judge Smith says, both of these parents want to see their children, and as a practical matter that we know,

[00:33:32] Speaker 03:
that the parent, wherever the children live, that parent is going to see the children more just by virtue of that.

[00:33:39] Speaker 01:
Yes, absolutely.

[00:33:40] Speaker 03:
So that's what they're fighting about.

[00:33:41] Speaker 03:
But the thing is, in terms of are they thugs?

[00:33:46] Speaker 03:
Are they people that are laundering money?

[00:33:49] Speaker 03:
Are they people that are committing terrible crimes?

[00:33:52] Speaker 03:
They're not.

[00:33:53] Speaker 03:
They're two people that are fighting over their kids, which anyone that's done family law would not find

[00:34:01] Speaker 03:
that the fact that they don't agree on who gets more to see the kids or where the kids grow up.

[00:34:07] Speaker 03:
This is not a new concept.

[00:34:10] Speaker 03:
I agree, Your Honor.

[00:34:12] Speaker 03:
Any other questions?

[00:34:14] Speaker 03:
All right.

[00:34:14] Speaker 03:
We've gone over sort of about the same amount of time.

[00:34:17] Speaker 03:
I appreciate your comments.

[00:34:18] Speaker 03:
Thank you.

[00:34:19] Speaker 03:
OK.

[00:34:19] Speaker 03:
There are two minutes for rebuttal for Amicus Council.

[00:34:25] Speaker 02:
Thank you, Judge Callaghan.

[00:34:26] Speaker 02:
Three quick points.

[00:34:28] Speaker 02:
First, regarding the currency case that was in the 28-J letter yesterday.

[00:34:32] Speaker 02:
I want to be clear, that case is in a legally different posture and context.

[00:34:38] Speaker 02:
It is applying what is called the Fugitive Disentitlement Statute.

[00:34:42] Speaker 02:
That's 28 USC 2466.

[00:34:45] Speaker 02:
And it's a statute that got enacted after Degan, specifically to address the issue of fugitives from criminal cases seeking civil forfeiture remedies.

[00:34:54] Speaker 02:
So that statutory context does not apply here, and it's important because the statute provides the specific definition of fugitive that my colleague referred to.

[00:35:05] Speaker 02:
So that is not controlling here.

[00:35:06] Speaker 02:
I would add that the factual circumstances are different.

[00:35:10] Speaker 02:
That is a circumstance where someone was sort of running around

[00:35:12] Speaker 02:
committing criminal conduct in the United States and then flees the jurisdiction before an indictment can be entered.

[00:35:18] Speaker 02:
That's different than what occurred here.

[00:35:20] Speaker 03:
So I understand your argument for, even though I think that Mr. Parris would argue more broadly, but your argument is that under the Tarrabellian, under the third

[00:35:37] Speaker 03:
that the court erred and it should go back for that and then have the district court decide that.

[00:35:42] Speaker 03:
You cautioned the court about going further.

[00:35:45] Speaker 03:
I'm just curious why if the fugitive disenfranchisement doctrine were said to not apply to the Hague conventions, what is the parade of horribles if we said that?

[00:36:02] Speaker 02:
Your honor, to be clear, my caution is only that that complete analysis has not been done here.

[00:36:09] Speaker 02:
The court referred to the analysis in Lozano, questions about how other signatory nations treat this circumstance.

[00:36:17] Speaker 02:
We're just not aware.

[00:36:18] Speaker 02:
And I would add also that in Lozano, the Supreme Court was aided by having the views of the United States.

[00:36:25] Speaker 02:
which I think could potentially be helpful to this court's decision on that broader question.

[00:36:31] Speaker 02:
In terms, it's not quite a parade of horribles, but I do think I keep in mind the circumstances present in Sasan and in Pessin, where there is an adverse adjudication on the Hague Convention proceeding in a lower court, and then the losing parent takes the kids and runs while trying to appeal that judgment.

[00:36:54] Speaker 02:
And in that circumstance, dismissal of the appeal is, as I said before, sort of synergistic with the purposes of the Hague Convention in terms of seeking to prevent abduction and enforcing sort of mutual respect among the courts of the different nations.

[00:37:11] Speaker 04:
And here there was no actual decision below, is what you're saying?

[00:37:14] Speaker 02:
That's right.

[00:37:15] Speaker 02:
Here the lower court has not adjudicated the Hague Convention Petition and that actually leads me to my second point.

[00:37:22] Speaker 02:
My colleague multiple times referenced the idea that Mr. Paris' removal of the children from Oregon to France was wrongful in the first instance.

[00:37:31] Speaker 02:
Wrongful removal in the context of the hate convention is a term of art.

[00:37:36] Speaker 02:
The court has to look to the habitual residence of the children.

[00:37:40] Speaker 03:
There was an order saying no one takes the kids.

[00:37:44] Speaker 02:
There was a temporary restraining order.

[00:37:45] Speaker 03:
And so your client, as amicus, regardless of how we want to refer to it,

[00:37:51] Speaker 03:
I'm not sure he's exactly correct.

[00:37:53] Speaker 03:
Just because he got through customs doesn't mean that if someone had been there with an order, you can't remove the children.

[00:38:01] Speaker 03:
They might not have let him take it.

[00:38:03] Speaker 02:
And my only point here respectfully, Judge Callahan, is that

[00:38:06] Speaker 02:
The question of whether there was a wrongful removal for purposes of the Hague Convention is one that has not been adjudicated.

[00:38:13] Speaker 02:
It was not adjudicated as part of the motion to dismiss on fugitive dis-entitlement grounds.

[00:38:18] Speaker 02:
And so that would be part of the consideration on remand when the court... In front of the district court.

[00:38:23] Speaker 02:
Precisely.

[00:38:25] Speaker 02:
And then on my third point, you know, there's been a lot of discussion of Mr. Paris's disdain for the Oregon courts.

[00:38:33] Speaker 02:
I understand that there are also concerns about his behavior and treatment of both the state court and potentially the district court here as well.

[00:38:40] Speaker 02:
The Supreme Court has said, this Court has echoed, that dismissal under the Disentitlement Doctrine is simply too blunt a tool.

[00:38:49] Speaker 02:
The Federal District Court has other mechanisms to deal with vexatious litigants, with inappropriate behavior of litigants, and that doesn't- I think that goes without speaking.

[00:39:00] Speaker 03:
If we decided cases on people that are nice to us, or people that we like, we wouldn't be very good judges.

[00:39:07] Speaker 03:
So if, you know,

[00:39:10] Speaker 03:
Our skin is a little thicker than it looks.

[00:39:13] Speaker 03:
We deal with, as I think that everyone can see here, we're dealing with illegal issues.

[00:39:17] Speaker 03:
So the person we like the most or whatever, or the person that's the nicest to us, it might make the court hearing nicer, but they don't win.

[00:39:27] Speaker 03:
that the person with the legal arguments is the person that wins.

[00:39:30] Speaker 02:
That's right, Your Honor.

[00:39:31] Speaker 02:
And I think I would also, on that note, point to the district court's discussion of the enforceability justification, because I think the language in that discussion does tilt a bit towards concerns about contempt for, disdain for,

[00:39:46] Speaker 02:
the state court's judgments, rather than the sort of legally relevant question of whether an adverse decision on the Hague Convention petition would be enforceable against Mr. Paris.

[00:39:57] Speaker 02:
And it is our contention that, of course, it would be.

[00:39:59] Speaker 02:
The children are present in Oregon.

[00:40:01] Speaker 02:
Mr. Paris can't return to Oregon without having to confront the warrant out for his arrest.

[00:40:07] Speaker 02:
And so a decision on the petition that said this is the children's country of habitual residence and the Oregon courts have jurisdiction to determine the custody proceedings would be enforceable against Mr. Paris.

[00:40:24] Speaker 02:
And that is simply, if I may say in summation, one of the many reasons why the court's failure to adequately address the Hay Convention context here

[00:40:36] Speaker 02:
rises to the level of legal error that should be reversed.

[00:40:41] Speaker 03:
All right.

[00:40:41] Speaker 03:
Thank you both for your argument today.

[00:40:43] Speaker 03:
Thank you, Mr. Parrish, for appearing remotely.

[00:40:46] Speaker 03:
This matter will stand submitted.