[00:00:18] Speaker 01:
This honorable court is again in session.

[00:00:20] Speaker 01:
Please be seated, please.

[00:00:22] Speaker 01:
Case number 19-7110 at L. Sami Ubu Ehadar versus Maria Eugenia Sinning-Farquez.

[00:00:31] Speaker 01:
The balance.

[00:00:32] Speaker 01:
Mr. DiPietro for the balance.

[00:00:34] Speaker 01:
Mr. Cohen for the appellee.

[00:00:44] Speaker 03:
Joseph DiPietro on behalf of Dr. Maria Eugenia Sanabasquez.

[00:00:48] Speaker 03:
Good afternoon, Your Honors, and may it please the Court.

[00:00:52] Speaker 03:
Dr. Albuheidar seeks to advance a claim of anticipatory retention which is not recognized by the Convention, case law interpreting the Convention, or any logical extension of it.

[00:01:04] Speaker 04:
I'm sorry, before you dive in, I apologize for interrupting and go right back to where you are, but I just have a fact question.

[00:01:10] Speaker 03:
Certainly.

[00:01:11] Speaker 04:
Has her contract been renewed or not?

[00:01:13] Speaker 03:
Yes, ma'am.

[00:01:14] Speaker 04:
By the IDB?

[00:01:15] Speaker 04:
They've approved it or she submitted?

[00:01:17] Speaker 04:
That's correct.

[00:01:18] Speaker 03:
All the record talks, ma'am.

[00:01:18] Speaker 03:
I'm sorry, I didn't mean to interrupt you, ma'am.

[00:01:20] Speaker 03:
The contract was renewed.

[00:01:21] Speaker 03:
I believe in late spring prior to the trial, there wasn't, I believe your question is stemming from a discussion that occurred on the record, and perhaps statements made in Apoli's brief about whether or not a new formal contract similar to the one that was in evidence was signed.

[00:01:39] Speaker 03:
However, the renewal took place by email with Dr. Sandovasquez and what I imagine was the Human Resources Department, but I can,

[00:01:49] Speaker 03:
say for sure that her contract was renewed early in 2019.

[00:01:53] Speaker 04:
To extend till when?

[00:01:56] Speaker 03:
It extends for another 18 months, so July of 2021.

[00:02:00] Speaker 03:
Okay, thank you.

[00:02:03] Speaker 04:
And those emails are not in the record because there was a request for production of evidence of the new contract.

[00:02:09] Speaker 04:
Are those emails in the record or not?

[00:02:12] Speaker 03:
The emails, I do not believe that the email between her and Human Resources is in the record, but on her

[00:02:19] Speaker 03:
examination in the trial court, she did make representation.

[00:02:22] Speaker 03:
She testified to the fact that she had corresponded with .

[00:02:25] Speaker 03:
.

[00:02:26] Speaker 04:
.

[00:02:27] Speaker 04:
She corresponded, but whether the bank had answered back and said, yes, we want you extended, was missing from what I've reviewed in the record.

[00:02:34] Speaker 04:
That's why I'm asking the question.

[00:02:36] Speaker 03:
Yes, I understand, Your Honor, and I believe the, I do not believe there's an email in the record, and I believe that the evidence that was taken was her testimony that she had gone ahead and renewed the contract, but there is no email that I'm aware of.

[00:02:51] Speaker 04:
Okay, so I'm sorry I interrupted your opening.

[00:02:53] Speaker 03:
No, that's fine, Your Honor.

[00:02:54] Speaker 03:
Thank you.

[00:02:56] Speaker 03:
Dr. Eberheider's claim is not recognized.

[00:02:59] Speaker 03:
In case law or any logical extension of it, indeed it's not recognized anywhere in the world.

[00:03:04] Speaker 03:
It's essentially an inchoate or unfinished claim under the convention, and he's seeking to create a new cause of action by bringing it, which is not consistent with the plain reading of the treaty, which should be read in the same way that statutes are read, in the sense that, specifically, the treaty's not written in the future tense.

[00:03:26] Speaker 03:
It's also inconsistent generally with the policy of the Hague Convention, which requires that a retention actually have taken place at the time that the, or excuse me, requires that a retention has actually taken place at the time that the relief is sought.

[00:03:47] Speaker 04:
How is what happened here different from what happened in Moses?

[00:03:51] Speaker 03:
Well, Moses was quite different actually in many respects.

[00:03:54] Speaker 03:
Moses factually was very different.

[00:03:57] Speaker 03:
You had what was an undisputed sort of cultural excursion to the United States from Israel by the Moses family, led by the mother.

[00:04:06] Speaker 03:
Children went with her.

[00:04:07] Speaker 03:
It was supposed to last for 15 months.

[00:04:10] Speaker 03:
It was undisputed that the original period of time was 15 months.

[00:04:14] Speaker 05:
Here the district court found that the plan here

[00:04:19] Speaker 05:
was for 18 months, and he found that the couple did not have a plan to make the United States their habitual residence, but planned to return to France.

[00:04:32] Speaker 05:
So it may have been disputed, but now it's been resolved by the district judge.

[00:04:36] Speaker 03:
The analysis applied by the district judge, I believe, put an undue weight on the shared intent of the parties, and if you look at

[00:04:45] Speaker 03:
the Moses analysis.

[00:04:47] Speaker 03:
Moses is kind of- Wait, wait, wait.

[00:04:48] Speaker 04:
You agree that Moses is the governing analysis or purposes of this case.

[00:04:52] Speaker 03:
Yeah.

[00:04:52] Speaker 03:
And to distinguish, agreeing that the Moses analysis applies with the result in Moses, I think- No, yeah.

[00:04:57] Speaker 04:
I give you that.

[00:04:58] Speaker 04:
But you just objected, I thought, to focusing on shared intent.

[00:05:01] Speaker 04:
But that's exactly what Moses does.

[00:05:03] Speaker 04:
So you can't object to that mode of analysis.

[00:05:06] Speaker 03:
Well, with respect to the analysis, what we argued was that, and just to maybe just lay the backdrop of the Moses analysis to begin with.

[00:05:14] Speaker 03:
Shared intent to relocate plus geographic change plus appreciable period of time yields change in residence.

[00:05:21] Speaker 03:
If there's a dispute as to the shared intent, then neither party should be taken at face value.

[00:05:27] Speaker 03:
You have to look to the rest of the record.

[00:05:30] Speaker 03:
I also asked Judge Mehta to examine acclimatization, and we did not ask him to place any specific weight on any part of the analysis.

[00:05:39] Speaker 03:
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,

[00:05:50] Speaker 03:
was part of that analysis.

[00:05:53] Speaker 03:
And I think that is actually a critical point.

[00:05:58] Speaker 03:
And we put this in our proposed findings and fact and conclusions of law, that it was not simply the shared intent, but it was also the acclimatization.

[00:06:08] Speaker 03:
And we did not ask for a specific weight.

[00:06:10] Speaker 03:
And I believe that that's also consistent with the way the case laws developed and where the case laws headed.

[00:06:16] Speaker 04:
We're not talking about it.

[00:06:17] Speaker 04:
I get that there's issues in the Supreme Court, no less.

[00:06:20] Speaker 04:
on that, but you parties have come to us and said, we agree that the Moses analysis is the one that applies here.

[00:06:28] Speaker 04:
So you all have already set for us the framework you want to use.

[00:06:33] Speaker 04:
So I don't know how you can now come up and argue for the first time, not in your brief, that you think there should have been a different analysis with more emphasis on acclimatization.

[00:06:42] Speaker 03:
Well, actually, I want to be careful the way I'm saying that, because I'm actually not arguing something that's different in our brief.

[00:06:51] Speaker 03:
All of these tests are

[00:06:55] Speaker 03:
let's say applicable, it completely depends on the facts of the case.

[00:06:59] Speaker 03:
For example, the clearest test that would be applied that wouldn't apply in certain situations is the acclimatization test if you have a child that's too young.

[00:07:09] Speaker 03:
The Moses test is actually, this is where I believe the district court's ruling, or we respectfully believe that the analysis was lost,

[00:07:22] Speaker 03:
it's at the first step.

[00:07:23] Speaker 03:
Yes, you can still examine shared intent, but that doesn't mean that you apply Moses as this mold on the cases.

[00:07:33] Speaker 05:
You have to look to the rest of the record and that... He looked broadly at the record and made detailed findings of fact and I'm a little bit

[00:07:42] Speaker 05:
unsure what your position is because in your brief you argued that the parties need not have the intent to accept Washington DC as their habitual residence in order to abandon France.

[00:07:56] Speaker 05:
And you talk about the prospect that they might move to Uruguay and the record shows that that was at one point something that we're considering.

[00:08:05] Speaker 05:
So where are you claiming is the habitual residence?

[00:08:11] Speaker 03:
Currently Washington D.C.

[00:08:13] Speaker 05:
But you said they don't have to have the intent to accept Washington D.C.

[00:08:18] Speaker 05:
Are you claiming that the district judge was clearly erroneous in failing to find a shared intent to make Washington D.C.

[00:08:29] Speaker 05:
their habitual residence?

[00:08:31] Speaker 03:
Failing to find a shared intent and failing to, in the method that he applied the analysis, yes, because there was a disagreement as to whether between the parties, one party says no, it was just for 18 months, the other says it was for at least three years and we were never going back.

[00:08:45] Speaker 03:
Right there, Moses says you have to look to the rest of the record and you cannot take it.

[00:08:51] Speaker 05:
To determine what the parties, when the parties last had a shared intent about habitual residence or when, what that shared intent was at that time.

[00:09:02] Speaker 03:
In attempting to determine it, yes.

[00:09:05] Speaker 05:
And so in what respect did the district judge fail to do that?

[00:09:09] Speaker 03:
The district judge actually, the proper test for habitual residents, actually the district judge left out the first step.

[00:09:15] Speaker 03:
And this goes back to my argument for anticipatory retention.

[00:09:18] Speaker 03:
The first step in the analysis is, is there a removal or retention without respect to whether that removal or retention is wrong?

[00:09:25] Speaker 03:
is a child being retained somewhere.

[00:09:27] Speaker 03:
Now back to anticipatory retention, a child absolutely cannot be retained in a jurisdiction in which the child resides and resides today while this case is on appeal with the undisputed consent of both parties.

[00:09:40] Speaker 05:
That was the case in Moses.

[00:09:42] Speaker 05:
The mother went for the 15 months with the consent of the father and was in Los Angeles with the children and it was when the mother says, I'm not planning to come back, I'm filing for divorce, that

[00:09:55] Speaker 05:
it converts it to wrongful retention.

[00:10:03] Speaker 03:
And there's a difference between

[00:10:04] Speaker 03:
that analysis, that what your honor is referring to is the analysis that allows the court to set the date that the wrongful retention began so that a party cannot take subversive action to create a new habitual residence.

[00:10:19] Speaker 03:
That's being conflated with a claim that Dr. Oberheider filed before there was even a retention.

[00:10:27] Speaker 02:
His case was... He filed his claim before the 15-month period was up.

[00:10:34] Speaker 03:
It was decided after.

[00:10:36] Speaker 03:
It was decided in August.

[00:10:38] Speaker 02:
What difference does that make?

[00:10:39] Speaker 02:
For jurisdiction, we determine jurisdiction as of the date of filing.

[00:10:44] Speaker 03:
In particular, in this case, when you look at a rightness issue in the context of the convention, I believe you have to look to the temporal guidance that the convention provides in addition to having highly expedited proceedings.

[00:10:57] Speaker 02:
What case can you cite that says that we determine subject matter jurisdiction

[00:11:03] Speaker 02:
as of the date that you decide the issue as opposed to the date of the filing of the complaint or petition.

[00:11:09] Speaker 03:
I don't believe the rightness doctrine is that rigid.

[00:11:11] Speaker 03:
I believe that the rightness doctrine would allow for a case that could be a claim that could be decided, especially within the six-week temporal component.

[00:11:19] Speaker 02:
Can you name or identify a case, or was there one cited in your brief?

[00:11:23] Speaker 03:
The cases that we cited for ripeness were the DRT case and the other administrative, they were all administrative agency appeals which this court often hears.

[00:11:35] Speaker 05:
It just doesn't make any sense where the parties know that they're at loggerheads and one has taken legal action to change the custody situation and the other as opposed to that

[00:11:50] Speaker 05:
the issue is teed up, and if we were to wait until the end of the agreed upon period, it's way more disruptive for the child.

[00:12:01] Speaker 05:
It just doesn't make sense.

[00:12:02] Speaker 05:
What's gained by that, and particularly in this case, where in two weeks, even under your view, the case will be right.

[00:12:10] Speaker 03:
Two weeks from now, as we sit here on appeal, this case was filed in June.

[00:12:14] Speaker 05:
But we're talking about whether there's something that needs to be decided.

[00:12:19] Speaker 03:
I didn't quite follow the weather to be decided.

[00:12:23] Speaker 03:
Could you please clarify, Your Honor, the last, whether there's something that should be decided now?

[00:12:27] Speaker 05:
Yeah.

[00:12:28] Speaker 03:
Oh, actually, I would look to, I believe it's the Redmond, I said the Redmond case, that speaks to

[00:12:38] Speaker 03:
mootness, or excuse me, Chaffin, the Supreme Court case, there absolutely is an issue to be decided just because even if this court couldn't grant, this court is actually in a position where it could grant relief that would affect the parties in an extremely substantive way, and Chaffin, or rather the mootness issue, which is I would say akin to the ripeness issue, this court is

[00:13:02] Speaker 03:
The court was not capable of granting relief, or excuse me, maybe I'm thinking of tagging the area.

[00:13:06] Speaker 05:
So you're no longer contesting that there's a live dispute before us.

[00:13:09] Speaker 05:
I mean, it's a very odd posture, because it's you and your client who have sought our expedited review, even as you say it's not right.

[00:13:18] Speaker 05:
But it seems like the expedited review speaks more to, yes, there's something to be decided.

[00:13:24] Speaker 05:
And indeed, it would be good if it were decided before the end of the agreed upon period, even though it's no longer agreed.

[00:13:30] Speaker 03:
I don't quite follow that, Your Honor.

[00:13:33] Speaker 03:
The reason that we sought expedited review is because the case, in addition to these cases being brought under the general mandate is that they be heard in an expeditious fashion, but in this particular case,

[00:13:47] Speaker 03:
The our claim if we were to prevail here would prevent actually prevent the entire.

[00:13:54] Speaker 05:
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.

[00:14:04] Speaker 03:
I'm saying that in June.

[00:14:06] Speaker 03:
he did not have a prima facie case because he could not prove that a retention actually took place.

[00:14:12] Speaker 04:
That's where we get back to Moses because even if we assume that they had a shared intent to stay here until December 31st, what Moses and a long line of other cases have said is when one party interrupts that shared intent with a legal filing that seeks to alter

[00:14:34] Speaker 04:
custodial rights as occurred here, you've got your retention.

[00:14:39] Speaker 04:
That's exactly what happened in Moses.

[00:14:41] Speaker 04:
They agreed on 15 months before that time expired, a filing was made that sought to alter custodial rights.

[00:14:50] Speaker 04:
You're identical.

[00:14:52] Speaker 04:
That's not anticipatory.

[00:14:53] Speaker 04:
What it is is they agreed on 18 months.

[00:14:56] Speaker 04:
They did not agree on 18 months for the change in custodial rights.

[00:15:01] Speaker 03:
There's actually a significant doubt, the judge meant I completely rejected the Dr. Abu Haider's testimony that he was only coming here for 18 months.

[00:15:09] Speaker 03:
And our argument is that in the middle of a agreed upon.

[00:15:13] Speaker 04:
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 in fact changes in his custodial access to the child

[00:15:31] Speaker 04:
occurred.

[00:15:32] Speaker 03:
No changes actually occurred your honor.

[00:15:34] Speaker 05:
He was living in the house when he was in DC and after she filed, she excluded him from living together with the family in DC.

[00:15:43] Speaker 05:
That's a change.

[00:15:45] Speaker 03:
He made a unilateral decision to move back to France.

[00:15:48] Speaker 02:
No, she said you can't live in this apartment anymore.

[00:15:52] Speaker 05:
You're not on the lease, you're not welcome, meeting you in a park.

[00:15:56] Speaker 04:
I've changed the locks.

[00:15:58] Speaker 03:
Absolutely, and there is evidence in the record she denies changing the locks, but I would want to stick on a minor point.

[00:16:06] Speaker 03:
I think the bigger point here is that what we're doing is, this goes back to another argument that we're making, that Moses is factually distinguishable entirely because this is an initial determination of custody and an initial breakdown of the marriage.

[00:16:21] Speaker 03:
How is that different from Moses?

[00:16:25] Speaker 03:
In Moses the parties, well actually she did file for a divorce.

[00:16:34] Speaker 04:
Exactly the same.

[00:16:37] Speaker 04:
And that was the retention was the filing.

[00:16:39] Speaker 04:
That's what Moses held was that whatever their shared intention for 15 months that was interrupted.

[00:16:46] Speaker 04:
Everything got blown up by the filing of the custody thing because that seeks to alter custodial rights and it seems like in this case

[00:16:55] Speaker 04:
Your brief talks about she gives him visitation, but before she filed and kicked him out of the apartment, she didn't give him visitation.

[00:17:07] Speaker 04:
He didn't need visitation.

[00:17:09] Speaker 04:
He had full physical as well as legal custody.

[00:17:12] Speaker 04:
Sherry, joint.

[00:17:14] Speaker 03:
Her testimony was that he was free to see the child whenever he wished.

[00:17:17] Speaker 04:
Why would she have any right to give permission?

[00:17:20] Speaker 03:
Well, uh, I would answer with a rhetorical question.

[00:17:23] Speaker 04:
Is it, is it then, uh, corollary to that, that, that no parties can ever, once 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 other spout, the other parent's permission?

[00:17:42] Speaker 03:
Well, under district of Columbia law, you would need the other parents.

[00:17:44] Speaker 03:
Okay.

[00:17:44] Speaker 04:
So what happened, what certainly happened here is he lost the right.

[00:17:49] Speaker 04:
to take his job back to France.

[00:17:52] Speaker 03:
That's not true.

[00:17:54] Speaker 04:
He just said you would have to have under D.C.

[00:17:57] Speaker 04:
law you'd have to have the permission of both and she withdrew it.

[00:17:59] Speaker 03:
The District of Columbia Superior Court is has jurisdiction to allow the child to return to France but he doesn't have control anymore.

[00:18:08] Speaker 04:
Once she filed

[00:18:10] Speaker 04:
He lost that right to move the child.

[00:18:12] Speaker 03:
Arguably that arguably that would be up to a DC Superior Court judge.

[00:18:18] Speaker 04:
The law is the law change when she filed that custody complaint his ability to travel with his child.

[00:18:24] Speaker 04:
It's going to she said I will not consent.

[00:18:27] Speaker 04:
That changed.

[00:18:30] Speaker 03:
But that was not an alteration of her position from that was a retention.

[00:18:37] Speaker 03:
And whether or not, let's assume that a retention took place, that retention is not wrongful.

[00:18:44] Speaker 03:
And I would argue that it can't, you still have, even not with, let me go back before I make the assumption and proceed with the analysis.

[00:18:54] Speaker 03:
Even after all of these things happened, Dr. Abuhaydar did not dispute that he still consented for the child to remain here until at least... No, no, no.

[00:19:04] Speaker 04:
Let's be crystal clear what he consented.

[00:19:06] Speaker 04:
He consented on the assumption that he was still a full and equal parent, that they would be here for 18 months.

[00:19:14] Speaker 04:
I see nowhere, if you can point me to it, I would value it, where he consented to the child staying here

[00:19:22] Speaker 04:
for the full 18 months when she was no longer a full custodial parent.

[00:19:27] Speaker 04:
And in fact, his petition asked for immediate return.

[00:19:29] Speaker 04:
So can you show me where he consented once he lost his full custodial rights through this filing?

[00:19:36] Speaker 04:
Once things changed, he still consented to going to the end of December?

[00:19:40] Speaker 03:
Per his application to the central authority in France.

[00:19:43] Speaker 04:
He's filed a petition.

[00:19:44] Speaker 04:
That's the thing you're talking about that says, I want immediate return.

[00:19:48] Speaker 04:
Everything has blown up.

[00:19:50] Speaker 04:
Everything has changed.

[00:19:52] Speaker 04:
This is nothing I ever agreed to.

[00:19:55] Speaker 04:
His petition does ask for immediate return, correct?

[00:19:58] Speaker 03:
I believe so.

[00:19:59] Speaker 03:
Yes.

[00:19:59] Speaker 04:
And so how could you, and that was June.

[00:20:02] Speaker 04:
And so how can you say that today he still agrees to the child being here until December 31st?

[00:20:09] Speaker 03:
It was undisputed throughout the record and also.

[00:20:12] Speaker 04:
No, no, no.

[00:20:13] Speaker 04:
What was undisputed was what you're talking about.

[00:20:15] Speaker 04:
And we have fact findings from the district court here, but what you're talking about is when they first came.

[00:20:22] Speaker 04:
you're making the visual residence argument.

[00:20:23] Speaker 04:
When they first came, that was the plan.

[00:20:27] Speaker 04:
But when they first came, he agreed the child could stay here until December 31st under a scheme where he would be a full custodial parent, able to travel with his child.

[00:20:40] Speaker 03:
But I would disagree with that conclusion, respectfully, and say that that was with, I believe, an accurate synopsis of judgment as ruling, is that that would be within

[00:20:52] Speaker 03:
a period of potentially much greater consent and that was the only, those were the only parameters that Judge Metra could be certain of and he tied it back to the 18 month contract.

[00:21:05] Speaker 03:
So we've taken the entire shared intent analysis is focusing around his job and the length of her contract as opposed to looking at.

[00:21:16] Speaker 04:
He looked at a lot more things than that.

[00:21:19] Speaker 04:
You have to be.

[00:21:20] Speaker 04:
He looked at how they left France, what they left in France, what was said to people, witnesses that he credited.

[00:21:30] Speaker 03:
Well, I believe that in applying the habitual residence analysis, the habitual residence is kind of wearing two hats in a funny way.

[00:21:41] Speaker 03:
You read the case law and it says,

[00:21:43] Speaker 03:
It's a mixed question of law and fact.

[00:21:45] Speaker 03:
And then it goes on to say that, generally speaking, this four-part test determines habitual residence, because courts typically address the four steps in the test after they talk about habitual residence, where there's a retention.

[00:21:58] Speaker 03:
And then step two is, where's the child's habitual residence?

[00:22:02] Speaker 03:
Well, steps one and two are fact-finding exercises.

[00:22:05] Speaker 03:
Step three, is there a breach of custody rights?

[00:22:08] Speaker 03:
That's a question of law.

[00:22:09] Speaker 03:
And step four, was he exercising custody rights at the time?

[00:22:11] Speaker 04:
Well, whether the facts, the facts, the extensive facts, where the habitual evidence is a heavily factual inquiry, I don't think anyone disputes that.

[00:22:20] Speaker 04:
You can't declare it as a matter of law, like nationality, right?

[00:22:24] Speaker 04:
You have to find facts.

[00:22:26] Speaker 04:
But when the district court finds the litany of facts, like the district court did here,

[00:22:32] Speaker 04:
and says those add up to finding that there was no abandonment of the habitual residence in France.

[00:22:40] Speaker 04:
That's making a legal conclusion based on the facts, correct?

[00:22:44] Speaker 03:
As the law is stated now, but I believe you still have to.

[00:22:48] Speaker 04:
Excuse me, as the law is stated now and as you stipulated would govern this case when you said you stipulated that Mazers is the governing paradigm for this case.

[00:22:56] Speaker 03:
It is, Your Honor.

[00:22:58] Speaker 03:
Okay.

[00:22:59] Speaker 03:
But Moses,

[00:23:00] Speaker 03:
has been interpreted much more broadly.

[00:23:04] Speaker 03:
The test is not, we didn't argue for a specific weight on any particular part of the test.

[00:23:10] Speaker 03:
You could have acclimatization.

[00:23:11] Speaker 05:
It's quite sort of context dependent.

[00:23:15] Speaker 03:
It is, your honor.

[00:23:16] Speaker 05:
Can I just back up?

[00:23:17] Speaker 05:
It seems to me that the way that you're understanding the question is really bound up with a notion that there was no wrongful retention.

[00:23:29] Speaker 03:
Step three.

[00:23:30] Speaker 05:
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.

[00:23:41] Speaker 05:
It's not like she up and took the kid and went off to Uruguay or Canada.

[00:23:49] Speaker 05:
And typically we don't think of resorting to the civil courts

[00:23:54] Speaker 05:
at the local DC Superior Court as a wrongful action.

[00:23:59] Speaker 05:
Everybody has prerogative to go to court.

[00:24:02] Speaker 05:
So I hear you resisting the idea that there was a legally operative wrongful retention under the Hague Convention in this case, and that really your whole case, in a way, rests on that.

[00:24:16] Speaker 03:
That's partially.

[00:24:18] Speaker 03:
We are advancing the 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.

[00:24:28] Speaker 03:
Was there a breach of the custody rights?

[00:24:31] Speaker 03:
And if you look to the law of the District of Columbia and you look to the law of France, as specifically highlighted in our reply brief, going to a local tribunal and saying, hey, we were having severe... You forfeited that issue.

[00:24:45] Speaker 02:
Judge Mates specifically asked you below, what do I have to decide here?

[00:24:52] Speaker 02:
Are you, what are you contesting?

[00:24:58] Speaker 02:
And you said that you weren't raising any issues with respect to whether this was a vile, whether there had been actually an alteration of his custody rights under French law.

[00:25:12] Speaker 02:
I remember... That's why he said that he didn't have to decide that issue because it had been stipulated to, or it had been conceded.

[00:25:21] Speaker 02:
And then in your brief you try to say, well, we never conceded that.

[00:25:24] Speaker 02:
But I looked at the transcript and you did concede it.

[00:25:29] Speaker 03:
I don't believe that we did.

[00:25:31] Speaker 03:
Judge Mehta was speaking in hypotheticals.

[00:25:34] Speaker 02:
No, he asked you a question.

[00:25:35] Speaker 02:
I'm trying to figure out what I have to decide and what I don't, which is what conscientious district court judges do, to figure out what is it that I need to decide.

[00:25:47] Speaker 02:
He's asking you, as a person bringing the petition, do I need to decide these other issues?

[00:25:58] Speaker 02:
You said no.

[00:25:59] Speaker 02:
I did not say no explicitly, but you if you look at it in context, you said no, because you didn't say a word about this issue as being one that he had to decide.

[00:26:13] Speaker 03:
whether there was a breach.

[00:26:15] Speaker 03:
I believe the question was if there was a finding of wrongful retention, would there be a breach?

[00:26:21] Speaker 03:
And you have to find a breach for there to be one.

[00:26:25] Speaker 03:
And we certainly conceded that he was exercising his custody rights at the time of that this was all happening.

[00:26:34] Speaker 03:
And I do remember, excuse me, Judge Prillard, were you about to ask a question?

[00:26:39] Speaker 05:
Go ahead and finish your sentence.

[00:26:40] Speaker 03:
You know, I believe I was done substantively.

[00:26:43] Speaker 05:
So I think that the way the case law has 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 is saying, you know, whether it's the mother in Los Angeles, in Moses, or there's a range of cases where somebody

[00:27:05] Speaker 05:
says, okay, now I'm going to court in a jurisdiction that the other parent perceives not to be the habitual residence and seeks to get that court to act.

[00:27:18] Speaker 05:
And as I was saying, even though 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

[00:27:29] Speaker 05:
of an effort to change the legal status.

[00:27:31] Speaker 05:
And really, when you think about it, the Hague Convention is an effort to make a forum choice for this family and this child.

[00:27:41] Speaker 05:
We don't want to just have a race to the courthouse around the globe and have somebody pick a forum where they think that they're going to be able to prevail.

[00:27:48] Speaker 05:
We're going to go to wherever this family is.

[00:27:51] Speaker 05:
So I think if you get beyond this notion that her act somehow had to be wrongful in some more basic sense,

[00:27:59] Speaker 05:
She is very clear in expressing an intent to change the custodial arrangement.

[00:28:06] Speaker 05:
And then the question is, is the DC court a place where they haven't jointly agreed to go?

[00:28:11] Speaker 05:
It would be a different thing if they both went there.

[00:28:14] Speaker 05:
We wouldn't have a case.

[00:28:15] Speaker 05:
Or if they both went to mediation, which is where they really should be.

[00:28:20] Speaker 05:
So I'm pushing back on your sense that, well, because it's part of your rightness argument, I think, and part of your argument, there somehow wasn't a wrongful retention, even if you preserve this issue.

[00:28:34] Speaker 03:
Yes, Your Honor.

[00:28:34] Speaker 03:
I'm sorry.

[00:28:35] Speaker 03:
I just want to make sure you're finished.

[00:28:37] Speaker 03:
So I think that what strikes me

[00:28:40] Speaker 03:
most about your honor's comments are that in every single one of those cases that I believe you're referring to, the facts were very different and that most of these cases arise when, let's say a parent is traveling on vacation.

[00:28:54] Speaker 03:
The Marks case is a great example.

[00:28:56] Speaker 03:
A three-week trip from Thailand to see a sick relative, returned plane tickets have been bought.

[00:29:04] Speaker 03:
It cannot possibly be clear.

[00:29:07] Speaker 03:
Filing for custody, in that instance, would strike any reasonable person as offensive and in breach of custody rights.

[00:29:14] Speaker 03:
Because not only is there an element of filing for custody, but it's based on what is essentially a lie or subversive behavior.

[00:29:25] Speaker 03:
In this case, there's no subversive behavior, there's no lie.

[00:29:28] Speaker 03:
There's months of marital strife.

[00:29:30] Speaker 04:
Well, there's the...

[00:29:31] Speaker 04:
Oops, did I forget to tell you that you're not on the lease?

[00:29:34] Speaker 04:
You have no right to be in this apartment.

[00:29:36] Speaker 04:
That seemed a bit subversive.

[00:29:37] Speaker 03:
I can absolutely speak to that, Your Honor.

[00:29:39] Speaker 03:
There were two apartments.

[00:29:41] Speaker 03:
The first one, he was on the lease.

[00:29:43] Speaker 04:
The second, he wasn't.

[00:29:44] Speaker 03:
The first one, he had to be on the lease for immigration purposes.

[00:29:47] Speaker 03:
The second, he denied this at trial, but Dr. Sanabasquez's position is that he needed to be left off it because one, he no longer needed the immigration papers and two... Did she tell him?

[00:29:56] Speaker 04:
I thought that he wasn't aware.

[00:29:59] Speaker 03:
He did not want to be on the lease because it would affect his eligibility for a tax credit for an apartment that he owned in Paris.

[00:30:09] Speaker 03:
He denied that.

[00:30:10] Speaker 05:
What am I missing about the distinction?

[00:30:12] Speaker 05:
The cases, it's Marx, it's Palencia, it's Blackledge, it's Deren.

[00:30:20] Speaker 05:
Case after case where the non-custodial parent says, hey, you know,

[00:30:25] Speaker 05:
It's not working out for me.

[00:30:26] Speaker 05:
I'm going to stay.

[00:30:27] Speaker 05:
I'm going to stay in the US.

[00:30:29] Speaker 05:
I'm going to Mexico.

[00:30:30] Speaker 03:
They just... None of those cases involve... I'm sorry, Yon, are you finished?

[00:30:34] Speaker 05:
I don't want to... Yeah, I'm interested in how you distinguish them.

[00:30:37] Speaker 03:
Absolutely.

[00:30:37] Speaker 03:
None of those cases, first of all, involve situations where the parents are living together as a couple or husband and wife.

[00:30:43] Speaker 03:
And polencia is actually... Why does that matter?

[00:30:47] Speaker 03:
Well, I think there's a difference between...

[00:30:50] Speaker 03:
coming to a new jurisdiction as a family living together and then having marital strife that occurs while you're living there as opposed to, let's look at- Why?

[00:30:59] Speaker 03:
Pardon me?

[00:31:00] Speaker 04:
Why?

[00:31:01] Speaker 03:
Well, in making the factual determination, it's just simply, going back to what I said to Judge Pillard's comment earlier, it's just simply less offensive.

[00:31:10] Speaker 04:
When you have a- I'm pretty sure that Dr. Abahajder doesn't find this non-offensive, and I'm not sure what the degrees of offensiveness have to do.

[00:31:20] Speaker 03:
Well, with respect to interpretation of the facts, Your Honor, and if I could make a point about Palencia, well, as it was just brought up, the Palencia Accord at page 1342, which Dr. Abuhaydar says in his brief crystallizes the, you know, the current state of the habitual residence analysis, notes

[00:31:39] Speaker 03:
that they did not start the period of retention during the period of consent, meaning the one-week trip to Mexico.

[00:31:47] Speaker 03:
It started later, and it specifically references a page 13.

[00:31:50] Speaker 04:
But that's not this case, so that doesn't help you.

[00:31:52] Speaker 03:
Well, with respect to identity.

[00:31:53] Speaker 05:
You're having them during the period.

[00:31:55] Speaker 05:
And there's like a 10-day difference in this record in any event, the intent to wrongfully retain or the date the petitioning parent learned the true nature of the situation.

[00:32:02] Speaker 05:
I mean, it doesn't make a material difference in this case which of those you pick.

[00:32:06] Speaker 05:
The point is that

[00:32:09] Speaker 05:
The non-petitioning parent made a decision, took unilateral actions, including starting a legal process without the knowledge or consent of the other parent.

[00:32:21] Speaker 05:
And then a few days later, he learns about that.

[00:32:24] Speaker 05:
And whichever of those dates you pick, which is the dispute that you're referring to on page 1340, you don't have a claim that there's no wrongful retention here.

[00:32:39] Speaker 03:
Whichever date, yes, actually we would, because in the analysis there's no retention.

[00:32:44] Speaker 03:
The wrongful retention occurs at step three, essentially, where you determine if the retention has breached the custody rights of the other parent.

[00:32:52] Speaker 02:
Well, let's look at what you said at page 650 of the appendix.

[00:32:59] Speaker 02:
Judge Maida asked you on the prior page, are you relying on at all defenses of acquiescence or consent?

[00:33:08] Speaker 02:
And you say no.

[00:33:10] Speaker 02:
And then you say, and we're not disputing that, well, we're arguing that we're not even getting to the point where your honor would see the side of custody rights were violated or not.

[00:33:20] Speaker 02:
Clearly he has them, no one's disputing that, and clearly he has not acquiesced right.

[00:33:27] Speaker 02:
And then he talks about how he's just trying to figure out what he has to rule on or not.

[00:33:32] Speaker 02:
And you say, well, our defense is that this case isn't right, and that's the only thing you have to decide.

[00:33:38] Speaker 03:
Judge Wilkins, I would respectfully like to put that into context for you.

[00:33:41] Speaker 03:
First of all, we're not, it was,

[00:33:44] Speaker 03:
The acquiescence or consent in the context that Judge Mehta 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?

[00:33:58] Speaker 03:
at the point where we're at the end of the trial with a, you know, after the Hague ditch file, no, but that is to be absolutely distinguished from the initial consent that where it's undisputed.

[00:34:09] Speaker 02:
Well, what did you mean when you said you don't have to decide if custody rights were violated or not?

[00:34:15] Speaker 02:
I'm sorry, Your Honor, could you please refer me to the line?

[00:34:18] Speaker 02:
At 650, lines four and five and six.

[00:34:30] Speaker 03:
it certainly so that's a reference to our our our our first arguments the jurisdiction argument there's no claim for anticipatory retention and then uh... so uh... it's now how how is telling the judge that you don't have to decide whether custody rights were fine what does that have to do there's no claim for it if you uh...

[00:34:56] Speaker 03:
If there's a finding that there's no claim for anticipatory retention and the case cannot proceed on those grounds and you don't reach the point in the habitual residence analysis, step three where you're determining if there's a case.

[00:35:09] Speaker 03:
No one is disputing that he had custody rights and clearly he had them, clearly he was exercising them throughout this entire period and still is today.

[00:35:21] Speaker 03:
And the acquiescence statement that I made

[00:35:26] Speaker 03:
And perhaps this would be a more effective answer for you, Judge Wilkins, if I said this was perhaps my misunderstanding of Judge Mehta's question, and perhaps I should not assign that as error.

[00:35:42] Speaker 03:
Either way, I did not mean that.

[00:35:44] Speaker 02:
Okay.

[00:35:44] Speaker 02:
Let's put this aside.

[00:35:45] Speaker 02:
Certainly.

[00:35:47] Speaker 02:
I'm trying to understand what would happen if we decided the case as you as you would like us to.

[00:35:52] Speaker 02:
Let's suppose we were to dismiss this case for lack of jurisdiction.

[00:35:59] Speaker 02:
It's filed again on January the 1st of 2020.

[00:36:01] Speaker 02:
It gets assigned to Judge Meda again, and he makes the same factual findings.

[00:36:11] Speaker 02:
You're saying that he would have jurisdiction.

[00:36:13] Speaker 02:
He could find wrongful retention as of May 2019, and he would do the habitual residence analysis as of that date.

[00:36:34] Speaker 02:
You're saying that that's the way that it would work or he'd have to do the habitual residence analysis as of January 1st, 2020.

[00:36:43] Speaker 02:
How would that work?

[00:36:45] Speaker 03:
Well, the analysis, without conceding our obvious disagreement with the result, just to keep it on the analysis level, the wrongful retention, the date that a retention becomes wrongful, we're not disputing, can be backdated to where a judge finds that makes a finding that the retention became wrongful.

[00:37:03] Speaker 02:
So even though he can't file until January the 1st, under your view,

[00:37:08] Speaker 02:
He January 1st is not the earliest date that that he or a judge could find There to be a wrongful retention under your view of how the law should be correct.

[00:37:20] Speaker 03:
I think the courts they consistent with Cases that we've read cases that Dr. I decided cases in England and another member states that the the

[00:37:32] Speaker 03:
That's where, that's the distinction between anticipatory retention as a shorthand for backdating and a claim in and of itself.

[00:37:43] Speaker 03:
And to allow for the claim to proceed is, would yield unacceptable results, absurd results in some cases.

[00:37:52] Speaker 02:
Okay.

[00:37:52] Speaker 02:
Let's suppose we agree with all of that.

[00:37:55] Speaker 02:
Okay.

[00:37:55] Speaker 02:
And so in this new lawsuit that's filed on January the 1st, the judge finds that the wrongful retention date is May the 10th.

[00:38:07] Speaker 02:
Under your view of the law then, would the judge do the habitual residence analysis as of basically as of that date or would the judge use the January 1st filing date for that analysis?

[00:38:24] Speaker 03:
One quick point of clarification just to make sure I'm on the same page as you is that we

[00:38:33] Speaker 03:
Well, okay, the short answer to your question is yes.

[00:38:36] Speaker 03:
If you can backdate the date of wrongful retention, not conceding anything that we believe in this case, a court can do that or else you would also have absurd results because you would essentially reward subversive conduct by parents.

[00:38:56] Speaker 03:
Now, likewise.

[00:38:57] Speaker 02:
So if you pick the May 10th as the wrongful retention date, you would do the habitual residence analysis as of that date, yes or no?

[00:39:09] Speaker 03:
The habitual residence analysis.

[00:39:10] Speaker 03:
The analysis is sort of a broader thing.

[00:39:19] Speaker 03:
I'm saying that a court would be, a court could find

[00:39:25] Speaker 03:
a date that predated.

[00:39:27] Speaker 03:
So sort of yes with explanation is the answer.

[00:39:31] Speaker 03:
I believe that that's what you're asking.

[00:39:34] Speaker 04:
As to habitual residence?

[00:39:36] Speaker 03:
This is where I'm getting a little, this is where I'm getting a little bit thrown myself in that I think this happened.

[00:39:41] Speaker 02:
Well let me clarify.

[00:39:42] Speaker 02:
Sure.

[00:39:43] Speaker 02:
The case law, as I understand it, says that we determine what the habitual residence was immediately prior to the wrongful retention.

[00:39:52] Speaker 02:
Correct, Your Honor.

[00:39:53] Speaker 02:
OK, so if the wrongful retention date would be May 10th, in my hypothetical.

[00:40:00] Speaker 03:
Actually, Your Honor, excuse me.

[00:40:01] Speaker 03:
If I could back up.

[00:40:02] Speaker 03:
And the only reason I interrupt is because I would like to change my answer slightly.

[00:40:06] Speaker 03:
I thought you might.

[00:40:08] Speaker 03:
The analysis, it begins with retention.

[00:40:12] Speaker 03:
Then you look to habitual residence.

[00:40:14] Speaker 03:
Then you look to whether there was breach.

[00:40:16] Speaker 03:
That's what determines if it was wrongful, if they're exercising their custody rates.

[00:40:20] Speaker 03:
In Judge Mehta's opinion, he actually made the determination that wrongful retention comes first, and then he analyzed habitual residence.

[00:40:28] Speaker 03:
And that's how the analysis sort of flows in his opinion.

[00:40:33] Speaker 05:
But isn't that the way all the courts do it?

[00:40:35] Speaker 05:
As Judge Wilkins was saying, in order to pick what the benchmark is for the analysis of habitual residents, you look as of the time where what was a concordant family unit, where's the fork in the road where the two parents

[00:40:56] Speaker 05:
are no longer.

[00:40:58] Speaker 05:
in accord on custody rights.

[00:41:00] Speaker 05:
They don't want, one of them has said, here's, you know, shot across the bow, things have changed.

[00:41:06] Speaker 05:
And it's at that point where you ask, okay, what's the habitual residence?

[00:41:10] Speaker 05:
Because that's the expiration of the joint family unit.

[00:41:15] Speaker 03:
Provided that the split that your honor referred to would amount to a retention.

[00:41:22] Speaker 03:
Because I would go back to the analysis.

[00:41:23] Speaker 05:
Well, but that's what the wrongful retention, so you're saying, yeah, exactly, he's looking at it and he's saying,

[00:41:27] Speaker 05:
I'm going to look at when there's a wrongful retention, and I'm going to measure habitual residence from that point.

[00:41:34] Speaker 03:
That's actually taking the test out of order.

[00:41:37] Speaker 05:
Why does it matter?

[00:41:37] Speaker 05:
All the courts seem to look at it that way.

[00:41:39] Speaker 05:
I mean, how can you tell what habitual residence is unless you have a time from which to measure it?

[00:41:45] Speaker 03:
You do, from the time of the retention.

[00:41:48] Speaker 03:
You haven't gotten to the wrongfulness analysis.

[00:41:50] Speaker 05:
The wrongful retention is one analysis.

[00:41:53] Speaker 03:
This is where, okay, so this is where wrongful retention and habitual residence, and there's this, I refer to it as habitual residence wearing two hats, the factual determination of step two and the overall analysis is sometimes referred to as the habitual residence analysis and they refer to it as a mixed question of a long fact.

[00:42:10] Speaker 03:
Nobody really disputes that the determination of step two is primarily factual, it has to be.

[00:42:16] Speaker 03:
So when you talk about wrongful retention, your honor, I believe you're talking about the former, if you will, hat that I was referring to.

[00:42:22] Speaker 03:
It's the analysis.

[00:42:25] Speaker 03:
You need those four steps to determine if there's a wrongful retention.

[00:42:28] Speaker 03:
That's the wrongful retention analysis.

[00:42:30] Speaker 03:
Habitual residence is part of it.

[00:42:33] Speaker 03:
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 anticipatory, not in the sense of backdating the date that it may have begun, but because you cannot possibly retain a child in jurisdiction.

[00:42:50] Speaker 04:
I don't understand how you can say we don't have the retention.

[00:42:54] Speaker 04:
Do we have to do retention first?

[00:42:56] Speaker 03:
Absolutely.

[00:42:56] Speaker 04:
And we don't have the retention

[00:43:01] Speaker 04:
Even though on January 1st or 2nd, a court could find that retention happened on May, in some time in May 2019.

[00:43:08] Speaker 03:
It could.

[00:43:11] Speaker 03:
Or here's another example.

[00:43:12] Speaker 04:
No, no, no.

[00:43:13] Speaker 04:
That makes no sense to me.

[00:43:14] Speaker 04:
You just said we have to find retention first, but we all have to keep our eyes, ears, and mouths shut and closed until the magic day of January 1st.

[00:43:27] Speaker 04:
And then we can go, it already happened back in May 2019, and you're calling that anticipatory.

[00:43:35] Speaker 03:
The short answer is yes, but if you sort of look at... How does that make any sense at all?

[00:43:41] Speaker 04:
Well, if you... You're allowing someone to retain, have a wrongful retention for six or seven months under your theory, and then you're calling it anticipatory, or have a retention.

[00:43:50] Speaker 03:
And respectfully, Your Honor, I would submit that it cannot possibly be wrongful during a period of undisputed consent.

[00:43:57] Speaker 03:
as it stands today.

[00:43:59] Speaker 04:
So you are just, you totally disagree then with all the cases Judge Pillard referenced, including Moses, when they found that in fact you can have a wrongful retention during a period of consent because the custodial proceeding or the articulation of a refusal to return at the end of the agreed upon period, either one of those changes what was agreed to.

[00:44:24] Speaker 04:
That's a change in the agreement.

[00:44:28] Speaker 04:
You're rejecting all of those cases.

[00:44:30] Speaker 04:
Every one of them is the same as this.

[00:44:34] Speaker 03:
Timing wise.

[00:44:37] Speaker 03:
I think the timing is actually quite different in these all of those in Moses.

[00:44:42] Speaker 04:
They hadn't agreed upon period 15 months before that 15 months before their December 31st whatever the equivalent date was before their December 31st.

[00:44:53] Speaker 04:
A custodial petition was filed July.

[00:44:57] Speaker 03:
Yes correct.

[00:44:57] Speaker 04:
I don't care.

[00:44:58] Speaker 04:
It was before.

[00:45:00] Speaker 04:
And that was held to be, notwithstanding the agreement to stay there until the 15 months, which is the equivalent of year December 31st, it was held to be a wrongful retention, a retention and a wrongful retention.

[00:45:15] Speaker 04:
And that could be decided.

[00:45:16] Speaker 04:
There was nothing anticipatory about it.

[00:45:17] Speaker 04:
It had happened, right?

[00:45:19] Speaker 04:
And you disagree with that.

[00:45:21] Speaker 04:
In your view, what Moses should have done was wait until the end of the 15 months

[00:45:25] Speaker 04:
and then file a petition, and then the court would go back and say, lo and behold, a wrongful retention happened six months ago during the agreed upon time period.

[00:45:36] Speaker 03:
I wouldn't go as far as your honor had described it.

[00:45:38] Speaker 03:
We're not asking for a bright line rule, but it should be within a time that the claim could actually be

[00:45:45] Speaker 03:
So by the time it's heard, at least that date has passed, especially with this six-week mandate and the expedited proceedings.

[00:45:53] Speaker 04:
I don't understand what you're talking about.

[00:45:54] Speaker 03:
Well, if a case is ripe, if it can be, I believe it would allow for flexibility.

[00:46:00] Speaker 04:
A case is ripe if someone's injury is concrete and the issues presented are concrete.

[00:46:06] Speaker 03:
per the legal test that would define that injury.

[00:46:09] Speaker 04:
That's what rightness means, yes.

[00:46:12] Speaker 04:
And if all these courts have said that an injury occurs when one spouse without the consent or acquiescence of the other either announces that they will not return with a child at the end of the agreed upon period or

[00:46:32] Speaker 04:
files a legal proceeding to change custodial rights.

[00:46:36] Speaker 04:
You have both here.

[00:46:37] Speaker 04:
Then that

[00:46:41] Speaker 04:
constitutes a wrongful retention.

[00:46:43] Speaker 04:
That can happen within the custodial, within what had previously been agreed upon as a period to stay there without changing my custodial rights.

[00:46:50] Speaker 03:
Under the facts of certain cases, yes.

[00:46:52] Speaker 03:
None of the facts of other cases, no.

[00:46:54] Speaker 03:
There have been other cases where there have been extensive litigation related to custody and visitation prior to any Hague petition being filed and the federal district court takes it up without regard.

[00:47:05] Speaker 04:
What code of appeals case adopts your rightness theory?

[00:47:08] Speaker 04:
Is there any federal court of appeals case that adopts your rightness theory?

[00:47:14] Speaker 03:
With respect to anticipatory retention.

[00:47:16] Speaker 04:
Under this convention or statute.

[00:47:17] Speaker 03:
I don't believe so.

[00:47:19] Speaker 03:
Well, excuse me.

[00:47:20] Speaker 03:
In our brief, we cited an eighth circuit case that recognizes the concept of rightness in the convention context in our opening brief.

[00:47:29] Speaker 04:
That's not what I asked.

[00:47:30] Speaker 04:
There's rightness in other contexts.

[00:47:32] Speaker 03:
I'm talking about your rightness argument here.

[00:47:38] Speaker 03:
Specifically on point to anticipatory retention, I assume is what Your Honor means.

[00:47:44] Speaker 03:
No, this is an issue of first impression.

[00:47:46] Speaker 03:
People don't typically... Not first impression.

[00:47:47] Speaker 04:
This has come up in all of their circuits.

[00:47:49] Speaker 04:
None of them have... They've all found... Had no trouble finding a wrongful retention during the agreed upon time period.

[00:47:55] Speaker 04:
It's not first impression, you're asking us to create a conflict with all of those other circuits is what you're asking us to do.

[00:47:59] Speaker 03:
I'm asking the court to draw the line and say there's no, that anticipatory retention as we've been discussing it, as I believe in the context of your other means, does not give rise to an independent claim.

[00:48:08] Speaker 04:
I just have one more quick question for you.

[00:48:10] Speaker 04:
I think we're way over your time.

[00:48:11] Speaker 03:
Certainly.

[00:48:11] Speaker 03:
Thank you for your patience.

[00:48:13] Speaker 04:
You said that DC law requires, I guess once she filed a custodial petition, DC law required consent.

[00:48:21] Speaker 03:
to take the child back to france uh... to relocate you would need uh... you typically need consent that's that a consequence of the final the custodial position petition i'm sorry is that a consequence of her filing the custodial petition superior court uh... no uh... it didn't in family law practice of one parent war war two of scone the child without consent and you would file for an order you know that dc law is is it a statute or a case i believe it's sixteen dash uh... maybe you could just tell me

[00:48:50] Speaker 03:
I would be happy to get that specific statute.

[00:48:53] Speaker 03:
Oh, actually, Your Honor, I'm not sure that I'm going to have to look and see if there's a specific statute that's on point to getting permission to leave.

[00:49:00] Speaker 03:
I'm not sure that there is a statute that says in the context that you described that you need the permission in an initial sort of dispute where there's no court order that you need permission.

[00:49:12] Speaker 03:
But I can tell you based on the common practice that if a parent were to do that, the other parent would march

[00:49:19] Speaker 03:
I'm just trying to understand, that's just a general rule of D.C.

[00:49:33] Speaker 04:
law or is that once a proceeding has been initiated in superior court, then

[00:49:37] Speaker 04:
people aren't supposed to grab the child in the run and the Superior Court has control.

[00:49:41] Speaker 03:
I think it's just sort of a well-known practice, sort of an understanding.

[00:49:47] Speaker 03:
We all know that if a parent were to do that, we could go in and likely get an order for the immediate return of the child from the local custody court.

[00:49:55] Speaker 04:
Now that being said... From the local custody... I'm sorry, I'm not being clear.

[00:49:58] Speaker 04:
There was some talk on the record here that there was a plan to go

[00:50:02] Speaker 04:
Back to France for, I think it was Easter or something.

[00:50:05] Speaker 04:
Correct.

[00:50:06] Speaker 04:
And then that got scuttled at the last minute.

[00:50:10] Speaker 04:
And if Dr. Abo Haider had said, well, I'm sorry, you can't make it to his wife's work or whatever reason, but I'm going to go ahead and take the child with me just for Easter, these Easter celebrations that we had all planned.

[00:50:23] Speaker 04:
Could you have gone to court and said he can't do that?

[00:50:26] Speaker 04:
But this is before any breakup, any announcement of separation, any filing back then.

[00:50:31] Speaker 03:
I think that question sort of highlights what her intent was.

[00:50:36] Speaker 04:
I'm not asking about intent, I'm asking as a matter of the law that you're talking to me about, could he have said, I'm sorry you're not able to make it to Ms.

[00:50:44] Speaker 04:
Vasquez, would have loved to have you here for Easter, but we have all these plans with family and friends and so I'm going to go ahead and take

[00:50:50] Speaker 04:
Yes.

[00:50:51] Speaker 04:
And then I'll just bring her back at the exact same time we planned at the end of the Easter celebrations.

[00:50:55] Speaker 03:
I believe that was offered to Dr. Abuhadar.

[00:50:57] Speaker 04:
Is that lawful?

[00:50:58] Speaker 03:
Yes.

[00:51:00] Speaker 04:
He wouldn't need permission from anybody to do that.

[00:51:03] Speaker 03:
Permission, if Your Honor's referring to Dr. Santa Vazquez, not under the current, not as the legal rights stood at that time.

[00:51:16] Speaker 04:
Now that being said- But then once she filed the custodial petition, he couldn't have done that.

[00:51:20] Speaker 03:
He could have.

[00:51:22] Speaker 04:
Without her consent?

[00:51:24] Speaker 03:
If she had objected, she would have had the right to file a motion to block the trip and ask that the child not be permitted to leave the District of Columbia.

[00:51:32] Speaker 02:
And you say that that motion would be granted because that's the general practice?

[00:51:38] Speaker 03:
When you're evaluating custody determinations are subjective, fact-intensive, generally it's around what's in the best interest of the child.

[00:51:50] Speaker 03:
When you get into issues where you have one parent that's taking action that is maybe

[00:51:59] Speaker 03:
and complete another violation of the other parent's rights.

[00:52:02] Speaker 04:
You're trying to load the answer here.

[00:52:04] Speaker 03:
Okay.

[00:52:05] Speaker 03:
I'm sorry.

[00:52:05] Speaker 04:
Not trying to do anything.

[00:52:07] Speaker 03:
If Judge Wilkins .

[00:52:07] Speaker 03:
.

[00:52:07] Speaker 03:
.

[00:52:07] Speaker 04:
He wants to get on the plane and take the kid to France and then bring the kid back.

[00:52:11] Speaker 03:
Can he?

[00:52:12] Speaker 04:
After the custodial petition is filed, could he do that without her consent?

[00:52:16] Speaker 03:
If she objected and filed something .

[00:52:18] Speaker 03:
.

[00:52:18] Speaker 03:
.

[00:52:18] Speaker 04:
Exactly, without her consent over her objection.

[00:52:21] Speaker 03:
Up to the judge.

[00:52:22] Speaker 03:
If she objected .

[00:52:23] Speaker 03:
.

[00:52:23] Speaker 03:
.

[00:52:23] Speaker 04:
If it's up to the judge, then that means no, he couldn't unless the judge gave permission.

[00:52:27] Speaker 03:
Well, would he be in violation of any law if he did that?

[00:52:32] Speaker 03:
No.

[00:52:33] Speaker 03:
Would he be in violation of what she wanted and would she have the opportunity to assert what she wanted in a superior court litigation?

[00:52:40] Speaker 03:
Yes.

[00:52:43] Speaker 03:
But there's no legal violation.

[00:52:46] Speaker 04:
I wasn't aware that courts could order people to.

[00:52:48] Speaker 04:
do things, unless the law required them to do it.

[00:52:51] Speaker 03:
Well, in this case, the nature of it is sort of equitable.

[00:52:55] Speaker 03:
The nature of it being the custodial court custodial process.

[00:52:58] Speaker 03:
It being, for example, taking a child somewhere, say, 300 miles away, even to, say, a nearby state, say, Pennsylvania or New York, if it's something that would

[00:53:14] Speaker 03:
substantially affect the rights of the parent who's aggrieved, then the court, you know, and the child was moved there on a permanent basis.

[00:53:20] Speaker 03:
For example, if a child went to Pennsylvania instead of a foreign country, you know, the proper thing to do would be to file an emergency petition in the jurisdiction where the child was removed from and seek an immediate return.

[00:53:34] Speaker 03:
Then when you have that order, now there can be, potentially be criminal penalties, even though the authorities typically

[00:53:40] Speaker 03:
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.

[00:53:47] Speaker 03:
So that's just sort of the way that those sorts of situations are handled.

[00:53:53] Speaker 04:
Sorry.

[00:53:55] Speaker 04:
We'll give you some time on rebuttal.

[00:53:56] Speaker 03:
Understood.

[00:53:56] Speaker 03:
Thank you very much.

[00:53:57] Speaker 04:
If you have that statute, then that would be helpful to me.

[00:54:01] Speaker 04:
Statutory side, then.

[00:54:04] Speaker ?:
Sorry.

[00:54:04] Speaker 03:
Just to clarify there may not be one if you don't then that can be your answer to.

[00:54:09] Speaker 03:
All right.

[00:54:10] Speaker 04:
Mr. Cullen?

[00:54:11] Speaker 00:
May I please support?

[00:54:13] Speaker 00:
Your Honours, the statute is right at the very end of the D.C.

[00:54:17] Speaker 00:
family law rules.

[00:54:20] Speaker 00:
Unusually in D.C.

[00:54:22] Speaker 00:
there is a D.C.

[00:54:23] Speaker 00:
annotated set of rules, but right before that there are lettered rules and the very last rule is a statutory née exiat.

[00:54:34] Speaker 00:
And that statutory née exiat can be exercised by any Superior Court Associate Judge

[00:54:40] Speaker 00:
sitting in chambers on any given day.

[00:54:42] Speaker 00:
Because... Do you have a citation for that?

[00:54:45] Speaker 00:
It is family law rule G, I believe.

[00:54:49] Speaker 00:
It's a very odd set of rules just for the family court right at the beginning of the civil rules.

[00:54:55] Speaker 04:
And that rule only kicks in when somebody has triggered the Superior Court process by filing a... Yes, but it can be done at the

[00:55:06] Speaker 00:
It can all be done in chambers immediately.

[00:55:09] Speaker 04:
Right.

[00:55:09] Speaker 04:
But you'd have to have a proceeding initiated in Superior Court to have that if she hadn't filed anything in Superior Court and he said, okay, I'll just take her to France for Easter.

[00:55:20] Speaker 04:
Could she have gone and gotten an order without filing something in Superior Court?

[00:55:23] Speaker 00:
Yes, because in practice, a complaint for custody, the underlying complaint is filed at the same moment that the statutory NAEA exit is requested.

[00:55:33] Speaker 04:
My question is if she has no intention of ever filing anything in Superior Court.

[00:55:38] Speaker 04:
She's not going to file anything in Superior Court.

[00:55:40] Speaker 04:
She just doesn't want the child going with him for Easter.

[00:55:42] Speaker 04:
She has no intention, and she's not filing a custody complaint.

[00:55:47] Speaker 04:
She's filing nothing in Superior Court except a motion to make him bring the child back from France.

[00:55:51] Speaker 04:
Can you do that?

[00:55:52] Speaker 00:
Yes, in D.C.

[00:55:53] Speaker 00:
you can.

[00:55:56] Speaker 00:
It's a freestanding statutory nexia, similar to the statutory nexia in the first Supreme Court case on the convention, the Abbott case, where there was a statutory nexia from Chile.

[00:56:09] Speaker 00:
And of course, what someone in Dr. Abu Haidar's position always would do is take proper advice.

[00:56:15] Speaker 00:
What is my remedy?

[00:56:17] Speaker 00:
because the whole law of snatch and grab is what the treaty was designed to prevent.

[00:56:23] Speaker 00:
And had he

[00:56:26] Speaker 00:
just snatched and grabbed his daughter and got on the plane to France, that it is not unreasonable to think that there would be untold consequences from that, as opposed to seeking the proper remedy available to him, which is filing his hate case, either in federal court or in DC Superior Court.

[00:56:49] Speaker 05:
Untold consequences, you mean emotionally?

[00:56:51] Speaker 00:
To the child, exactly, because Judge Pillard, at the root,

[00:56:55] Speaker 00:
of this treaty is the well-being of the child.

[00:56:59] Speaker 05:
Right.

[00:57:00] Speaker 05:
And it's just trying to figure out what the best forum is, what the appropriate forum is, when there is even potentially a conflict among different national or local fora.

[00:57:12] Speaker 05:
And I think the thing that I struggled with, at least at first, is this notion of a wrongful retention.

[00:57:19] Speaker 05:
We have to assume that France or some other

[00:57:23] Speaker 05:
country is at least in the picture as a potential habitual residence in order to get the analysis off the ground, right?

[00:57:30] Speaker 05:
And so we have these parents who've moved and maybe at the end of the day we say, okay, her wrongful retention is going to court in DC and saying, I want custody.

[00:57:42] Speaker 05:
And it could have even been an email saying, I want custody, you know, this is not working out.

[00:57:50] Speaker 05:
And then from that point,

[00:57:53] Speaker 05:
you do the analysis of habitual residents.

[00:57:55] Speaker 05:
If it turns out that DC is the habitual residence, then there's actually nothing wrongful about the resort to DC court or her decision to break the marriage.

[00:58:06] Speaker 05:
People do it every day.

[00:58:09] Speaker 05:
But in order to have the inquiry even lift off, we have to call it a wrongful detention.

[00:58:16] Speaker 05:
Is that right?

[00:58:17] Speaker 00:
It's 100% correct.

[00:58:19] Speaker 00:
And you all asked about

[00:58:21] Speaker 00:
this timing issue.

[00:58:22] Speaker 00:
So I had a moment when I was listening to Learned Council's position this morning to go to our government's views on this.

[00:58:33] Speaker 00:
We did cite in our brief the United States government's legal analysis

[00:58:40] Speaker 00:
on the treaty.

[00:58:41] Speaker 00:
And so I quickly looked at the analysis.

[00:58:45] Speaker 00:
Page 15 really answers the question.

[00:58:49] Speaker 00:
Is that in the record here?

[00:58:51] Speaker 04:
Can you tell me where you're reading from?

[00:58:54] Speaker 00:
Page 15 is not in the record.

[00:58:56] Speaker 00:
The legal analysis is cited as one of our secondary sources.

[00:59:01] Speaker 00:
and I can certainly do a letter after today pointing this out under the subsection.

[00:59:08] Speaker 00:
Please, just listen to what our government says.

[00:59:12] Speaker 00:
There are numerous reasons to proceed promptly.

[00:59:18] Speaker 00:
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.

[00:59:30] Speaker 00:
And Judge Pillard, to answer your question from earlier this morning, and

[00:59:35] Speaker 00:
to maximise the chances for the child's return by reducing the opportunity to establish that the child is settled in a new environment thereby impacting the child's wellbeing.

[00:59:49] Speaker 00:
Our government has said you don't wait, you file and the speed which Justice Ginsburg looking down on us in her concurring opinion in Chaffin

[01:00:01] Speaker 00:
In the second Supreme Court case, Justice Ginsburg said the reason we move these cases super fast and the reason the United States has been criticized in the past of moving these cases too slowly is at the root of this is the child.

[01:00:19] Speaker 00:
Yes, it's not a best interest analysis.

[01:00:22] Speaker 00:
but the well-being of the child is paramount.

[01:00:24] Speaker 00:
And you cannot, as you were posturing, I believe, in your question, Judge Pillard, allow time to pass and the child to become more and more settled and then take the child out of what may have become, after a great period of time, a situation that's too difficult for the child.

[01:00:45] Speaker 00:
And that is really what the Torren case is about.

[01:00:49] Speaker 00:
And as you saw in our brief, I went back

[01:00:52] Speaker 00:
and pulled the original complaint in Torren and the original Middlesex County, excuse me, the Middlesex Circuit Court case out of Massachusetts.

[01:01:06] Speaker 00:
And the father waited too long in Torren.

[01:01:09] Speaker 00:
He waited more than a year, more than a year to file his Hague case.

[01:01:15] Speaker 00:
thereby creating an exception, a defence, which only exists once the child has been settled for more than one year.

[01:01:25] Speaker 02:
What are we to make of the fact that your client sought the assistance of the French Central Authority?

[01:01:32] Speaker 02:
and told them that his wife had said that she had no intention of returning with the child to France, and they said, well, you agreed to remain in the United States until December 31, 2019.

[01:01:51] Speaker 02:
there is essentially no retention, and we're not going to take any action.

[01:01:59] Speaker 00:
Yes.

[01:01:59] Speaker 00:
Now that, Judge Wilkins, is at page A1015, A1015, the English version in volume two of the appendix.

[01:02:12] Speaker 00:
And you'll see that this is a document that we produced.

[01:02:17] Speaker 00:
In fact, my colleague Leah Houser's name is on the top of the email.

[01:02:21] Speaker 00:
The certified English translation is page 1015 and the original French is page 1021.

[01:02:30] Speaker 00:
So one page email.

[01:02:31] Speaker 04:
There's no dispute between the two of you about the translation that we have to worry about.

[01:02:35] Speaker 00:
No, nothing, nothing.

[01:02:36] Speaker 00:
And what I was going to say, Judge Mollett, is we did the translation and we got it certified ourselves because we wanted Judge Mehta to be aware of this.

[01:02:44] Speaker 00:
So what we have here

[01:02:46] Speaker 00:
is an administrative email from a lady in the French central authority who makes the classic mistake that central authorities make.

[01:03:00] Speaker 00:
And the classic mistake is to look at the Hague application

[01:03:04] Speaker 00:
through the prism of France.

[01:03:07] Speaker 00:
But of course, that's not what one does.

[01:03:09] Speaker 00:
You look at the Hague application with respect to what law would be applied to the petition in federal court here.

[01:03:17] Speaker 00:
And so it doesn't matter if Scotland has not yet recognized undertakings, which has been a huge issue in Hague cases over the years.

[01:03:25] Speaker 00:
It doesn't matter if the most recent country to join, Singapore, does not yet recognize certain

[01:03:34] Speaker 00:
areas of jurisprudence.

[01:03:36] Speaker 00:
What matters is what does the jurisprudence of the requested country establish?

[01:03:42] Speaker 00:
And there's no expectation.

[01:03:45] Speaker 04:
We're here to decide what our jurisprudence establishes, and we have said that we look to what our sister country signatories, and France isn't new.

[01:03:55] Speaker 04:
No, France is not new.

[01:03:57] Speaker 04:
I think they're original signatories.

[01:03:59] Speaker 04:
And so they seem to have a pretty firm statement here that

[01:04:03] Speaker 04:
there was no, in their view, they're looking at the same treaty we are, there's no wrongful retention, not just with her statements about consent, but having filed a custodial action, but there's still no wrongful attention until the end of December 2019.

[01:04:18] Speaker 04:
Why shouldn't we respect that?

[01:04:20] Speaker 00:
Because that's not what our jurisprudence has established from Moses.

[01:04:23] Speaker 04:
Our jurisprudence, I thought you were here because we haven't, this circuit doesn't have jurisprudence yet on this question.

[01:04:29] Speaker 04:
This is an open question.

[01:04:30] Speaker 00:
Is it not in this court?

[01:04:33] Speaker 00:
I would just, to answer that, I would say what you said to counsel, which was you're asking us to go against basically every other circuit except the Sixth Circuit.

[01:04:43] Speaker 04:
So we don't have settled jurisprudence in this country.

[01:04:47] Speaker 00:
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 habitual residence.

[01:04:59] Speaker 00:
But when it comes down to it, only the Sixth Circuit has done that.

[01:05:03] Speaker 04:
But as soon as now habitual residence issues before the Supreme Court as well.

[01:05:09] Speaker 04:
And so we're supposed to do this on a fast basis.

[01:05:12] Speaker 00:
Well, it doesn't matter in this case because whether that the primary question in tallyary and the oral argument is next week.

[01:05:21] Speaker 00:
The primary question is tallyary is what standard should we apply?

[01:05:24] Speaker 00:
What's the standard?

[01:05:26] Speaker 00:
And of course, if the Supreme Court decides the standard is clearly erroneous standard, that makes no difference in this case to us.

[01:05:37] Speaker 04:
No, but another issue in that brief is if the Solicitor General's brief addresses

[01:05:42] Speaker 04:
how habitual residents should be analyzed and seems to disagree with the Moses approach and says look at just everything.

[01:05:49] Speaker 04:
Don't give particular, you can look at subjective intent but don't give that, the parent's subjective intent.

[01:05:55] Speaker 04:
Don't give that any more weight than anything else.

[01:05:57] Speaker 04:
It's just one factor in the mix which is not the Moses approach.

[01:06:01] Speaker 04:
It's not the one that I understood the parties to agree governed this particular case.

[01:06:06] Speaker 04:
And so it's kind of confusing then to say

[01:06:10] Speaker 04:
We should ignore the French authority in this process too.

[01:06:14] Speaker 00:
So to go back to that, what the treaty requires the central authority to do is set out in Article 9 and it is categorical and it is mandated.

[01:06:25] Speaker 00:
What is stated in this email is in conflict with Article 9 of the treaty because Article 9 of the treaty

[01:06:34] Speaker 00:
is very short, says if the central authority which receives the application.

[01:06:39] Speaker 04:
Hang on, I've got to get to the right page here.

[01:06:42] Speaker 04:
Article 9.

[01:06:46] Speaker 00:
Article 9 of the treaty.

[01:06:47] Speaker 00:
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, it

[01:07:00] Speaker 00:
shall directly and without delay transmit the application to the central authority of the contracting state.

[01:07:09] Speaker 04:
So even if they don't think there's any merit to the application.

[01:07:12] Speaker 00:
This is not open to dispute.

[01:07:15] Speaker 00:
Article 9 mandates, and the reason for this, one has to go back to what are called the travel preparatoires in the 1970s.

[01:07:26] Speaker 00:
And Professor Cromwell Adair Dyer, who was the United States delegate, who really came up with this brilliant idea, which was

[01:07:35] Speaker 00:
How can we stop the mischief?

[01:07:38] Speaker 00:
The mischief being unilateral action by one parent that changes the status quo.

[01:07:44] Speaker 00:
And it was anticipated, because this is very new law, that it would take some time for contracting states to come in line.

[01:07:52] Speaker 00:
And so Article 9 is crafted to say, France, you may not do what you're saying you're going to do in this email.

[01:07:59] Speaker 00:
You should have, as required by the treaty, and as Justice Kennedy says in Abbott, he says this is a text-based treaty.

[01:08:08] Speaker 00:
You may not monkey around with this language.

[01:08:12] Speaker 00:
It's text-based and that's what you've got to do.

[01:08:15] Speaker 00:
And so the French central authority should have transmitted it to the US central authority.

[01:08:20] Speaker 00:
Just so you know, judges, the reason that is typically done is because Article 30 of the treaty gets round the authentication rules and hearsay rules

[01:08:34] Speaker 00:
for foreign documents, because as you know under our federal system, it's quite difficult to get foreign documents into evidence.

[01:08:41] Speaker 00:
And so Article 30 says, if you submit an application to a central authority, anything you attach to it

[01:08:49] Speaker 00:
It could be a plate of spaghetti.

[01:08:50] Speaker 00:
It could be the best haggis you've ever tasted in your life.

[01:08:54] Speaker 00:
If you attach it to that application, you no longer are bound by rules of authenticity and admissibility.

[01:09:03] Speaker 00:
And that's why this is done.

[01:09:05] Speaker 04:
So I get that your argument that they may have made a procedural error here and not

[01:09:09] Speaker 04:
notifying the State Department's relevant office.

[01:09:12] Speaker 04:
But what I'm asking you is a different question, I think, and that is there's a statement here that seems to be the view of the French central authority on whether a wrongful retention occurs prior to January 1.

[01:09:29] Speaker 04:
Is that statement reflective of French law?

[01:09:35] Speaker 04:
Is that an accurate, whether they should have done it or not, is that an accurate statement of the French government's view on what this treaty means?

[01:09:46] Speaker 00:
Well, I can only tell you what the French expert told me.

[01:09:50] Speaker 00:
That is the only way I can answer that.

[01:09:53] Speaker 00:
And that was the expert who did the

[01:09:58] Speaker 00:
affidavit of French law, Julie Fabriguet, and her position is that is wrong.

[01:10:05] Speaker 04:
So it's also wrong as a statement of what the French government's view.

[01:10:07] Speaker 00:
Yes.

[01:10:07] Speaker 04:
But you're not aware of cases or decisions or anything?

[01:10:10] Speaker 00:
No, she said that this is just, it's just completely wrong.

[01:10:16] Speaker 00:
But we don't have that in the record.

[01:10:17] Speaker 00:
No, that's not in the record, but it became much ado about nothing.

[01:10:22] Speaker 00:
And the reason for that is the application to the French central authority, I believe, was made on June the 6th.

[01:10:29] Speaker 00:
The petition for return was made on June the 10th.

[01:10:34] Speaker 00:
The treaty and our government says these are not mutually exclusive positions.

[01:10:42] Speaker 00:
Then Judge Mehta moved this case at a rocket speed and by June the 17th had entered, I believe it was June the 17th, had entered a scheduling order saying we are going to have a hearing instanter.

[01:10:58] Speaker 00:
And it was only then, if you look at this email, on June the 26th that this email came back from the French Central Authority.

[01:11:09] Speaker 00:
So by then Dr. Abu Haidar had activated his not mutually exclusive position by going straight to federal court here and pursuing his petition for return.

[01:11:25] Speaker 00:
It's not the case that this email came in and then

[01:11:32] Speaker 00:
Oh, we better try some different approach.

[01:11:35] Speaker 00:
We're worried about this email.

[01:11:36] Speaker 00:
This email is not a concern because it is one administrative individual in a central authority who is acting ultra-virus.

[01:11:47] Speaker 02:
Would you have had an opportunity to seek review of this email if you had decided to continue on this path rather than pursuing the petition in the United States?

[01:11:58] Speaker 00:
Yes.

[01:11:59] Speaker 00:
Our government says you are

[01:12:01] Speaker 00:
expressly allowed to do that.

[01:12:03] Speaker 04:
There's some sort of appeal mechanism within the central authority?

[01:12:10] Speaker 00:
Our legal analysis from our government says if for some reason an application is initially rejected, you must be given the right to resubmit it.

[01:12:20] Speaker 00:
You have to.

[01:12:21] Speaker 00:
And that's in the legal analysis.

[01:12:24] Speaker 04:
When you resubmit it, does somebody else look at it?

[01:12:27] Speaker 00:
I don't know exactly how the French central authority operates but what we do know when I say acting ultra virus is what a central authority is allowed to do is delimited by Article 9 and restricted by Article 7.

[01:12:47] Speaker 00:
If you look at Article 7 it lays out in sub-paragraphs A through G

[01:12:52] Speaker 00:
what a central authority is allowed to do and the main role of a central authority is to locate a child and our central authority can use federal law enforcement to help locate US Postal Inspector and in this country the other main role of our central authority is to locate counsel because it is very difficult for parents in other countries a to find counsel and b to afford counsel in this country.

[01:13:20] Speaker 00:
When you look at Article 7, you'll see these are purely administrative duties that a central authority has, and that the right to file in court, the judicial remedy, is always paramount.

[01:13:33] Speaker 02:
Well, 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 was to ascertain if the child was in the United States and to forward this petition

[01:13:49] Speaker 02:
to the United States Central Authority.

[01:13:53] Speaker 02:
So in Article 7F, where it says that one of the responsibilities of central authorities is to initiate or facilitate the initiation of a judicial or administrative proceeding with a view to obtaining the return of the child.

[01:14:10] Speaker 02:
You're saying that it wouldn't have been France's role to determine whether France

[01:14:17] Speaker 02:
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 have that proceeding?

[01:14:34] Speaker 00:
That's correct, because most other countries are under the misconception

[01:14:40] Speaker 00:
that you can file a Hague application that it gets transmitted to the State Department and the State Department will put the child back on the plane to the other country.

[01:14:48] Speaker 00:
And what central authorities actually are empowered to do is extremely limited, particularly in this country with the division of powers.

[01:14:58] Speaker 00:
There's only three

[01:15:00] Speaker 00:
affirmative actions our central authority can do.

[01:15:03] Speaker 00:
Number one, they can write a letter to the custody court telling them they can't proceed because there's a hate case pending.

[01:15:11] Speaker 00:
Number two, they can write a letter to the federal or state court or district judge who's handling the hate case saying here's some useful links to help you learn how to judge a hate case.

[01:15:24] Speaker 00:
And number three, they can write a letter which they hardly ever write

[01:15:28] Speaker 00:
to a panel or to a district court judge saying you're not moving fast enough.

[01:15:33] Speaker 00:
That is it.

[01:15:34] Speaker 00:
There is nothing else the central authority is 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 a child.

[01:15:54] Speaker 04:
So the central authorities, do they have any interpretive role

[01:15:58] Speaker 04:
under the treaty or is that limited to the French courts limited to the French courts.

[01:16:04] Speaker 04:
So the French central authorities statement about what it thinks.

[01:16:10] Speaker 04:
the convention requires that there's nothing you can do here because you agreed to December 31st.

[01:16:14] Speaker 04:
They had no authority to offer that interpretation.

[01:16:17] Speaker 00:
That's right.

[01:16:17] Speaker 00:
And that's why I say that this lady was acting ultra virus.

[01:16:22] Speaker 00:
She could not.

[01:16:23] Speaker 00:
And as you see under article nine, she could not ignore the plain text of the treaty.

[01:16:28] Speaker 00:
She had to, she had to do that.

[01:16:30] Speaker 04:
No, but it's a separate question of whether the central authorities just aside from this letter are conferred any interpretive role.

[01:16:38] Speaker 04:
under the treaty.

[01:16:39] Speaker 00:
No, that is covered by Article 15.

[01:16:41] Speaker 00:
That's a separate article.

[01:16:43] Speaker 04:
I'm sorry.

[01:16:43] Speaker 04:
No, no.

[01:16:44] Speaker 04:
I'm sorry.

[01:16:44] Speaker 04:
It's not to apologize.

[01:16:45] Speaker 00:
It's helpful.

[01:16:46] Speaker 00:
I'm sorry.

[01:16:47] Speaker 04:
Article 15 tells us that courts do the interpretation.

[01:16:50] Speaker 00:
Article 15 tells us.

[01:16:52] Speaker 04:
Oh, 1-5 or 5-0?

[01:16:53] Speaker 00:
1-5, Article 1-5.

[01:16:56] Speaker 00:
Article 1-5 says if the court trying the Hague case determines that it might be helpful

[01:17:06] Speaker 00:
to get a view from the other country, then an Article 15 request can be made to the other country.

[01:17:16] Speaker 00:
That request has happened one time in the United States

[01:17:24] Speaker 00:
since we ratified this treaty in 1988.

[01:17:30] Speaker 00:
One time, Judge Motz in the US District Court in Maryland asked another government to ask their courts to give a view on a particular issue.

[01:17:44] Speaker 00:
And guess what the other country said?

[01:17:46] Speaker 00:
We can't tell our courts what to do.

[01:17:48] Speaker 00:
There's no way.

[01:17:49] Speaker 00:
And our own government in its legal analysis says Article 15 will hardly ever be used.

[01:17:57] Speaker 00:
And really what happened, Judge Millett, to answer your questions dead on, is the permanent bureau of the Hague Conference.

[01:18:05] Speaker 06:
The what?

[01:18:06] Speaker 00:
The permanent bureau of the Hague Conference, the governing body for this international private law issue, developed a database for all the cases.

[01:18:17] Speaker 00:
And so everything is in there.

[01:18:19] Speaker 00:
It's called incadat.

[01:18:21] Speaker 00:
And so there was no need for the Article 15 remedy.

[01:18:25] Speaker 00:
And that's really what happened.

[01:18:29] Speaker 00:
You mentioned, Judge Millett, the government and the case next week, Tal Yiree versus Monaski.

[01:18:37] Speaker 00:
It is not, the government's position is not at all inconsistent with Moses.

[01:18:42] Speaker 00:
Chief Judge Kosinski in Moses said, this is fact driven.

[01:18:48] Speaker 00:
Yes, we have an analysis and we have a paradigm now and we have a way of approaching it, but it's a mixed question of fact and law.

[01:18:57] Speaker 00:
What the government says in their, in the Solicitor General's brief in Talgury versus Monaski is that you consider all the admissible evidence,

[01:19:08] Speaker 00:
and this is a flexible and fact-bound analysis.

[01:19:12] Speaker 00:
That is exactly what Judge Metta did.

[01:19:14] Speaker 04:
Well, to be clear, they don't cite Moses, which I thought was a bit telling, and they go on to say the subjective intent of the parties, which is what Moses starts with, cannot be determinative and is at best one fact to think about.

[01:19:36] Speaker 04:
But it cannot be necessary or sufficient or even carry any more weight than any other fact.

[01:19:44] Speaker 04:
That's how I read their brief and Moses analysis.

[01:19:50] Speaker 04:
My understanding is you all have agreed governance here, so that may be the end of it for us, but the Moses analysis certainly makes subjective attempt sort of the starting point, and then says application can be considered as well.

[01:20:04] Speaker 04:
Maybe that could overcome it, but it seems like a rare circumstance.

[01:20:08] Speaker 00:
Yeah, I agree with that.

[01:20:11] Speaker 00:
What I was going to say is what Judge Metta did is exactly what the government says should be done.

[01:20:19] Speaker 00:
Because it's very helpful, it's pages A166 and 167 and they open beautifully in the first volume and they're side by side.

[01:20:29] Speaker 00:
And if you look at page 166 and 167, Judge Metta says, for a whole host of reasons,

[01:20:37] Speaker 00:
the habitual residence, the customary home of this child is obviously France.

[01:20:42] Speaker 00:
And he goes through 16 different compelling factual reasons.

[01:20:49] Speaker 00:
Sixteen.

[01:20:51] Speaker 00:
Sixteen saying why

[01:20:53] Speaker 00:
There's no possible doubt that France remains the customary home of this child.

[01:20:58] Speaker 00:
And those 16 views take in documents, data, evidence, and he assesses the credibility of the parties.

[01:21:10] Speaker 00:
And he goes very deep on that.

[01:21:12] Speaker 00:
He says it's not just issues like

[01:21:15] Speaker 00:
They have non-immigrant temporary G4 visas.

[01:21:19] Speaker 00:
It's not just the fact that they have only an 18-month contract, but all their worldly possessions are stored in two containers in Paris.

[01:21:31] Speaker 00:
And he had photographs of them all.

[01:21:33] Speaker 00:
And the best man from the wedding, Geronimo Rapopoulos,

[01:21:41] Speaker 00:
Their other best friend from Italy, Bose, said everyone knew this was an 18-month detachment.

[01:21:50] Speaker 00:
If you veer away from that, here's what would happen.

[01:21:53] Speaker 00:
I'll just pick on you, Judge Miller.

[01:21:55] Speaker 00:
You get a chance to do a sabbatical at the law school at the University of Edinburgh.

[01:22:00] Speaker 04:
That would be nice.

[01:22:01] Speaker 00:
Right, it would be lovely.

[01:22:02] Speaker 00:
The weather's a bit challenging from time to time.

[01:22:05] Speaker 00:
So you get to do that, and you decide to take your family.

[01:22:08] Speaker 00:
And for whatever reason, matters do not advance at home as you had anticipated.

[01:22:16] Speaker 00:
And the other side decides to go to the sheriff court and ask the sheriff in Edinburgh to issue a custody order.

[01:22:23] Speaker 00:
Well, your sabbatical, your detachment, is clearly not your customary home.

[01:22:30] Speaker 00:
And if you take that view further, Judge, then anyone who goes on a posting for Foreign Service is giving up the right to litigate their

[01:22:39] Speaker 00:
most important part of their lives, their family in the United States.

[01:22:43] Speaker 00:
That cannot be the law and it's not because this brilliant treaty came up with a solution and the solution is you must prevent unilateral action and that's what Madame Respondent did.

[01:22:57] Speaker 00:
And it's not just her, she instructed very competent counsel, and this is in Petitioner's Exhibit 16, which is the very last document in Volume 2 of the appendix.

[01:23:10] Speaker 00:
And you were right, Judge Pillard, I think you said, excuse me, it was Judge Millett.

[01:23:15] Speaker 00:
Counsel for Madam Respondent said, we're changing the locks.

[01:23:18] Speaker 00:
You may not come back into this family home.

[01:23:21] Speaker 00:
You are out of here.

[01:23:23] Speaker 00:
Also, the only place Dr. Abu Haidar can practice medicine is France.

[01:23:30] Speaker 00:
How could he possibly be relocating here?

[01:23:33] Speaker 00:
And he made the effort to come backwards and forwards from his home in Paris to here during the period of detachment.

[01:23:41] Speaker 00:
The last thing I did want to say, I'm keeping you all from your sandwiches.

[01:23:47] Speaker 04:
And go ahead.

[01:23:48] Speaker 04:
If they had, if the court had found that they had abandoned France as their habitual residence, but they had not yet established and agreed upon habitual residence, he didn't agree on the U.S., maybe he was thinking Spain or in hypothetical or Uruguay or whatever, what happens?

[01:24:07] Speaker 04:
It's habitual residence of the child first of all, correct?

[01:24:09] Speaker 04:
Correct.

[01:24:10] Speaker 04:
What happens if one's abandoned before another one's established?

[01:24:14] Speaker 04:
Can that happen under the treaty?

[01:24:15] Speaker 00:
Right, well there is one district court has taken the view that you can have no habitual residence.

[01:24:22] Speaker 04:
So what happens then?

[01:24:23] Speaker 04:
It can't be wrongful anywhere?

[01:24:25] Speaker 00:
Right, then there would be no remedy under the treaty because the treaty is based on the concept of habitual residence.

[01:24:31] Speaker 00:
And it's no different from the attempt in the Third Circuit several years ago where an additional defense of unclean hands was

[01:24:42] Speaker 00:
attempted to be interposed.

[01:24:44] Speaker 00:
And you can't.

[01:24:45] Speaker 00:
You can't mess with this treaty, as Justice Kennedy said in Abbott.

[01:24:49] Speaker 00:
It's a text-based treaty.

[01:24:51] Speaker 00:
It's based on habitual residence.

[01:24:53] Speaker 00:
If, in some extraordinary case, there is no habitual residence, then there's no treaty remedy.

[01:24:59] Speaker 00:
But that can't be right, because you can't leave someone in the position of Dr. Abu Haida or having no remedy.

[01:25:07] Speaker 00:
And because that cannot possibly be in the child's wellbeing, which is the whole purpose of this treaty.

[01:25:16] Speaker 04:
The other question I had is, she filed a petition for changing custodial rights in DC Spirit Corps, but that hadn't yet been adjudicated.

[01:25:26] Speaker 04:
Did his custodial rights change under French law at all?

[01:25:31] Speaker 04:
Have they changed at all this year?

[01:25:34] Speaker 00:
No, he has, the concept in the European Union is a concept of parental authority or parental responsibility.

[01:25:44] Speaker 00:
It is not really how we understand the words custody and visitation.

[01:25:50] Speaker 00:
But of course that's the great thing about this because this treaty assumes all types of rights and obligations relating to children.

[01:25:58] Speaker 00:
And so under French law,

[01:26:02] Speaker 00:
he still had equal rights.

[01:26:04] Speaker 00:
And that goes, Judge Pillard, to your question about wrongful retention.

[01:26:08] Speaker 00:
Because once you establish that there is wrongful retention, then the question is, okay, where was the habitual residence?

[01:26:15] Speaker 00:
France.

[01:26:16] Speaker 00:
Okay, at the time of wrongful retention, when habitual residence was still France,

[01:26:22] Speaker 00:
Did he have rights under French law, even if they're just joint rights?

[01:26:26] Speaker 00:
That's all he needs.

[01:26:27] Speaker 00:
And he did.

[01:26:28] Speaker 00:
Whereas what happened in Superior Court was an attempt

[01:26:33] Speaker 00:
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.

[01:26:44] Speaker 00:
That's what happened.

[01:26:46] Speaker 00:
I agree with you all, it's not really an abduction treaty.

[01:26:50] Speaker 00:
In fact, the word abduction is only used in the title

[01:26:54] Speaker 00:
and it was a last minute idea by the Canadians to sensationalise this treaty in a good way, to get attention to this extraordinary mechanism.

[01:27:07] Speaker 00:
It is a case of

[01:27:10] Speaker 00:
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.

[01:27:22] Speaker 00:
And there are a myriad number of ways.

[01:27:25] Speaker 00:
in which our courts have developed the idea that any type of unilateral action triggers wrongful retention.

[01:27:34] Speaker 00:
Then we look at habitual residence.

[01:27:36] Speaker 00:
Did that parent have rights in that country at that moment in time?

[01:27:40] Speaker 00:
And Dr. Abu Haidar absolutely did.

[01:27:43] Speaker 00:
I disagree with my learned friend because the most recent case by Chief Judge Jordan

[01:27:50] Speaker 00:
the Palencia case is absolutely on point.

[01:27:54] Speaker 00:
The question that Chief Judge Jordan explained is it's all about timing.

[01:28:00] Speaker 00:
And you look to when did the left behind parent realize what was going on?

[01:28:05] Speaker 00:
Well, Dr. Abuhaydar realizes what is going on when he's having breakfast.

[01:28:09] Speaker 00:
There's a knock on the door.

[01:28:11] Speaker 00:
He's served with a foreign custody case and then thrown out of his home.

[01:28:15] Speaker 00:
That's enough.

[01:28:17] Speaker 00:
Even the letter, even if it was just the petitioners exhibit 16, the letter from council, just that would be enough.

[01:28:25] Speaker 04:
So when they talk about the third prong, there's some discussion here about whether they preserved an argument on that, the third prong that focuses on a change in custodial rights.

[01:28:35] Speaker 04:
What that means is simply an attempted change.

[01:28:38] Speaker 06:
Yes.

[01:28:38] Speaker 04:
You don't actually have to have

[01:28:41] Speaker 04:
a legal change in custodial rights to trigger a wrongful retention.

[01:28:45] Speaker 00:
Spot on.

[01:28:45] Speaker 00:
That is exactly right.

[01:28:46] Speaker 00:
And that's why practitioners of the Hague try to get their affidavit of foreign law into the record as early as possible.

[01:28:56] Speaker 00:
You'll see in this case, long before we got to trial, we had filed the affidavit of foreign law so Judge Mehta could see what rights he was actually going to be dealing with.

[01:29:05] Speaker 00:
But a joint right is enough.

[01:29:07] Speaker 00:
under Palencia, an obligation is enough.

[01:29:11] Speaker 00:
If you have an obligation to your children to care for them, that is a sufficient right.

[01:29:17] Speaker 00:
Why?

[01:29:17] Speaker 00:
Because this treaty is brilliant.

[01:29:19] Speaker 00:
Because Article 5 says, when we talk about rights,

[01:29:23] Speaker 00:
It's a semi-autonomous concept.

[01:29:26] Speaker 00:
Don't get tied down in Scottish values and Scottish mores.

[01:29:31] Speaker 00:
You've got to look at this in the broadest possible way so every possible case can be brought under this treaty.

[01:29:38] Speaker 00:
Because there's no downside to Madam Respondent.

[01:29:43] Speaker 00:
Child goes back, they go back to France, they sort it out then.

[01:29:47] Speaker 00:
Imagine the downside to Dr. Abuhaydar.

[01:29:49] Speaker 00:
He doesn't live here.

[01:29:50] Speaker 00:
How could he possibly litigate a case in DC Superior Court?

[01:29:55] Speaker 04:
Is part of the custodial rights, the forum in which custodial rights will be determined, is part of his custodial rights the right to have custody decided by, under your theory, the case, France?

[01:30:09] Speaker 00:
Yes.

[01:30:11] Speaker 04:
that's recognized as a custodial right.

[01:30:13] Speaker 00:
Yes.

[01:30:13] Speaker 00:
And actually, helpfully, that email at page A1015 acknowledges that as well.

[01:30:21] Speaker 00:
He says he has parental rights under French law.

[01:30:27] Speaker 04:
Thank you very much.

[01:30:27] Speaker 00:
Thank you.

[01:30:30] Speaker 04:
All right, Mr. DePetro, if you didn't have any time left, we'll give you a couple minutes, two minutes.

[01:30:41] Speaker 03:
I think one issue that I would like to draw attention to is there seems to be a great deal of focus on the Dr. Abu Haidar's career and where he's licensed to practice medicine and his commute.

[01:30:57] Speaker 03:
What about the trajectory of both of their careers as they move to the United States?

[01:31:02] Speaker 03:
This was an amazing step forward.

[01:31:04] Speaker 03:
for Dr. Sanabasquez.

[01:31:05] Speaker 03:
Indeed, they moved here for her opportunity.

[01:31:09] Speaker 03:
They anticipated being longer.

[01:31:11] Speaker 03:
They specifically negotiated it being longer than 18 months.

[01:31:16] Speaker 03:
They took steps

[01:31:18] Speaker 03:
to make arrangements for what would happen after the renewal of the first contract in three years.

[01:31:28] Speaker 03:
Specifically, he started getting, he started the process of registering his medical license in Uruguay.

[01:31:36] Speaker 03:
There's evidence in the record that demonstrates an intent to, a clear intent away from France.

[01:31:43] Speaker 03:
And I think the district court focused on

[01:31:47] Speaker 03:
Well, essentially he says, I don't think they did enough to show that Washington DC was their permanent home.

[01:31:53] Speaker 03:
I think that's essentially what the opinion says.

[01:31:56] Speaker 03:
They, as Judge Millett just described, they don't have to supplant the former habitual residence with a new habitual residence in order to abandon it.

[01:32:08] Speaker 05:
And Moses... But they need to have an habitual residence because that's what determines the appropriate form.

[01:32:16] Speaker 04:
If DC is not the habitual residence, she can't file here.

[01:32:19] Speaker 03:
I'm sorry?

[01:32:20] Speaker 04:
If DC is not the habitual residence, if that's what you're arguing, they may have given up France, but they didn't have one here yet, she can't file here either.

[01:32:27] Speaker 03:
Well, we're arguing that they did have one here.

[01:32:29] Speaker 03:
But when you say file, Your Honor, if I could just ask for clarification as to whether you meant custody and local court, or that's what you meant, correct?

[01:32:37] Speaker 03:
Yes.

[01:32:37] Speaker 03:
So actually she could, because habitual residence has nothing to do

[01:32:41] Speaker 03:
with the jurisdictional statute in the United States that's been adopted by, I believe, nearly every state, if not all of them at this point, the Uniform Child Custody Jurisdiction Enforcement Act.

[01:32:52] Speaker 05:
So you're saying that the jurisdiction where they file doesn't have to be the jurisdiction the Hague Convention would select, it just has to not displace a different jurisdiction that the Hague Convention would select.

[01:33:01] Speaker 03:
They're mutually exclusive in a sense, but they're sort of related.

[01:33:04] Speaker 05:
I thought you were saying they weren't.

[01:33:06] Speaker 03:
Well, if I could clarify,

[01:33:08] Speaker 03:
The UCCJA refers to it as home state.

[01:33:11] Speaker 03:
It is not the same as habitual residence.

[01:33:13] Speaker 03:
Habitual residence is a term of art in the treaty.

[01:33:16] Speaker 03:
It's used in other European laws, both local laws and EU laws.

[01:33:24] Speaker 03:
Here, the UCCJA refers to home state.

[01:33:27] Speaker 03:
All this required is residency for six months.

[01:33:30] Speaker 03:
And there's also lots of exceptions, jurisdictions litigated frequently.

[01:33:35] Speaker 05:
Is there any case that has held there is no habitual residence for purposes of the Hague Convention and therefore that it just defaults to whatever forum the party files in?

[01:33:47] Speaker 05:
Which is, I take it to be what you're arguing?

[01:33:49] Speaker 05:
That there's no jurisdiction for the... There's no habitual residence within the meaning of the Hague Convention and therefore it's not in opposition to any

[01:34:00] Speaker 05:
forum that the convention would select for the party to file in the home state.

[01:34:05] Speaker 03:
Meaning there's no breach of custody rights?

[01:34:08] Speaker 05:
Meaning that we don't look at the Hague Convention's analysis.

[01:34:11] Speaker 05:
I thought that's what you're arguing.

[01:34:12] Speaker 05:
You don't have to have, you don't have to establish that DC is the habitual residence as long as the choice of DC is not in derogation of a different habitual residence.

[01:34:23] Speaker 05:
Is that not the point you were just making?

[01:34:24] Speaker 03:
I believe that's correct.

[01:34:25] Speaker 03:
What I'm saying is you can abandon France without

[01:34:29] Speaker 03:
France does not cannot, France does not, the United States does not have to be habitual residence or to abandon France.

[01:34:36] Speaker 03:
In this case, our argument, of course it is, it is.

[01:34:38] Speaker 03:
And when the law in Moses also says that when the family moves as a unit and establishes a permanent home, the time you establish that habitual residence need not be long.

[01:34:54] Speaker 03:
Would the,

[01:34:57] Speaker 04:
Did you have a wrap up?

[01:34:58] Speaker 03:
I'm sorry, certainly.

[01:35:00] Speaker 03:
Just that the breach of custody rights must not simply be an attempt, it has to be to satisfy step three, you need an actual breach.

[01:35:11] Speaker 03:
We're arguing, you know, this is kind of along the lines of anticipatory retention, you can't have an anticipatory claim, an encode claim, if you will, in the civil context, if there is one.

[01:35:19] Speaker 03:
And also the central authority, I believe the role of the central authority was quite diluted by counsel's argument, and that I would refer the court back to the Perez-Vera report, which is an official opinion of the executive branch, is the seminal report.

[01:35:37] Speaker 03:
with respect to interpretation of the treaty, expressly says the central authorities can reject petitions that are manifestly without foundation.

[01:35:46] Speaker 04:
And in the context of this treaty... Is that something that's... Are you talking about the same executive branch interpretation here?

[01:35:51] Speaker 03:
He was referring to the treaty itself.

[01:35:53] Speaker 03:
I'm referring to the report that interprets it.

[01:35:55] Speaker 04:
Is that on the record here?

[01:35:56] Speaker 03:
Absolutely.

[01:35:56] Speaker 03:
The Perez Vera report is a document I'd like to direct the court's attention to.

[01:36:02] Speaker 03:
It's mentioned in our

[01:36:03] Speaker 03:
in our briefs cited in our briefs my opening brief extensively.

[01:36:08] Speaker 04:
We don't have it here with us right now.

[01:36:09] Speaker 03:
The press report is actually I believe it should be in the behind in the back.

[01:36:17] Speaker 03:
Okay.

[01:36:17] Speaker 04:
I'll find it then.

[01:36:19] Speaker 03:
So there's the reason that we spent

[01:36:24] Speaker 03:
several pages addressing the role of the central authority, which operate at the level of bilateral relations among member nations.

[01:36:31] Speaker 03:
So the Department of State Office of Children's Issues, the Ministry of Justice in France, their opinion should be entitled to great weight.

[01:36:38] Speaker 03:
And taking, I believe that perhaps I should conclude at this time based on my impression of the bench.

[01:36:48] Speaker 03:
So thank you very much.

[01:36:50] Speaker 04:
Thank you very much.

[01:36:50] Speaker 04:
The case is submitted.