Legal Case Summary

May it please the court. My name is Thomas Wolfram. I represent Elaine Murphy. Chief Judge Kaczynski, Judge Macchewin, Judge Tristan, Mr. Sloan. This case is a clear case of wrongful removal. In retention. From the child's standpoint, in June of 2016, this little girl left Ireland and her mother and her school and her dance for Irish dance for summer in the United States. And she was thinking that she would return at the end of August to Ireland just as she had done after first grade. I'm so you're telling us what's in the child's mind? Yes, because this case has unique facts, Your Honor. What's the legal issue before us? Yeah. The legal issue would include whether the district court findings of facts were clearly erroneous. But what's the core question that you're asking us to decide? Well, there is clear error below. So that standard, I'd refer you to ER-136, ER-146, ER-101, which are the income and expense declarations of the parties exchanged on February 16, 2013 in Ireland, and the February 2013 Marital Selement Agreement proposed by Mr. Murphy, excuse me, by Mr. Sloan, additionally. Wait, wait, this is February 13, 2014? 13. And what number is that? Those are ER-101, 136, and 146. That's the settlement agreement. 136 and 146 are the California State Family Law Act forms for income and expense declaration information. On page 4 at paragraph 16, the form calls for the parents. I'm sorry. You had two forms, which form? 136 along 146. Both. They're the same. They're the mirror forms, Your Honor. One is 136, I believe, is from Mr. Sloan

. 146 is from Ms. Murphy. In the California divorce procedure, are you? Yes, 136 starts with paragraph 16. Yes. So you said four. So I just want to make sure I'm looking at what you're pointing at. Exhibit D. Exhibit D is reproduced as ER-136. And if we look at paragraph 16, I'm sorry, 16, I'm sorry. Four. It's page four. This form has been. That's fine. Paragraph 16. Go ahead. Yes. One is paragraph 16, do you? And this is Mr. Sloan's February 2013 and Remukman. I remember the removal, if you will, is in June of 2013. So February, March, April, May, four months later. Okay. 146. Yes, sorry. What does this do to help you? Okay. Here, Mr. Sloan is saying. I know what it does

. What does it do to help you? How does it advance your point? I believe is evidence of shared parental intent under your Moses' decision, especially when read would say, our Moses' decision, our Moses' decision, especially when, if you look also at ER-100 or more. Well, I'm sorry. And let me just make clear. This does not talk geography. This talks parental custody. It does not say where each parent is or where the child will be on the hands, just says where the who, which parent the child will spend time with. And you're under, that's why we turn to ER-101, exhibit 39 in trial. Okay. And where on page 101 are you? At paragraph 3.2, joint custody, and paragraph 3.3, final custody order. Paragraph 3.2, okay? Second line says, may I use the child's name or should I just refer to her as E? E or E.S. That's what's in the record? Yes. Quote, Bill and Elaine will have joint physical custody of E.S. and will share time with E as much as possible, given that E will, and here's a key word, reside in Ireland with Elaine during the school year and in California with Bill during summers and holidays. I'd also like to direct your attention to the next paragraph 3.3, in which Mr. Sloan refers to the California Supreme Court case of Montenegro versus D.S. There is a controversy in the, or there's a decision in the California Court. In fact, it's Montenegro versus D.S. that if there is a final custody order, that order cannot merely be changed by a party convincing the trial court that there is that it is in the child's best interest. When you make a final order, what you have to have as I continue to read, which means that a party, excuse me, quote, which means that a party is seeking to change the agreed upon custody arrangement

. And here we have an agreed upon custody arrangement for the future. This is a custody arrangement for after the divorce. I'm not sure how it speaks to what happened before. We know what, what the facts were when the child was present at one place. In the face of those facts, the District Court concluded that the prior habitual residence had not been abandoned. So what's the point of telling us what the future custody arrangement is, which includes residents in both places? Well, it includes residents for nine months or a little bit more than nine months in Ireland. This is not a 50-50 shuttle case as some of the cases that come up under the habitual residence are. The child will spend six months in one country and six months in another year on it. This is a nine month plus nine months, a little less than three months. Or maybe a different way to ask it is, where did you point to this and this and this, but we're looking at a very extensive findings by the District Court. So where did the District Court go wrong? What is clearly arounias? If you could point me to anything in the District Court, this clearly arounias that would be helpful. Thank you for asking that question because you are right. The District Court wrote a long detailed opinion that follows your decision of Moses. And I'd like to speak to that in a moment. Just answer this question. The District Court did not mention these three exhibits in its opinion. And these are crucial opinions. This is because the crucial facts as the subject of the subject have reviewed all the materials submitted, all of them for David's. There's any reason to doubt that he did that. He has a thorough misjudge of the thorough discussion of the facts. Clearly shows on the standing of what was in the record before him. And he also said just to act that, he said the date of dissolution, which was up to over 2013, and then he said still pending our orders regarding custody support, child and spouse. So he references that. Do you have a final child custody order? I don't believe so. That's what I thought. So what you have is exactly what the District Court said. You have a divorce or a dissolution

. But as of the time of the District Court order, you do not yet have a final child custody order. I mean, so he reviewed all the papers. He tells you you don't have a final order. So I'm not sure how somehow that document upends his entire decision. On this point, failure to mention ER101, ER136, and ER146. What's so critical about those documents that the failure to mention them is such a glaring error? If we, it relates back to whether or not shared, last shared, parental intent remains the standard in this district. Well, but these documents all pertain to the future. They're what is being proposed for custody after dissolution. But the Court's findings carefully recited when the child was at what place, and it's not inconsistent with this, the child had spent most of the year in Ireland. And the District Court got those facts correct. You're not complaining about any of those. So I'm not sure why the proposal for what's supposed to happen in the future changes the facts that the judge was looking at, such that the failure to mention those documents is so critical. Judge, ER136 and ER146 are not about the future. They are about the present in the past, because in paragraph 16, both parents say the child has been with mother in Ireland for 70 percent of the time. But the judge has already said that in the findings of fact. What in the findings of fact is incorrect or fails to reflect what you just said. He's recited where she's been. The takeaway would be that in paragraph 3.2 of ER101, father is can showing his last, is showing his parental intent that this child has been and is going to remain in Ireland during the school year. It's a question of, this is evidence ER101, paragraph 3.2 and 3.3 are circumstantial or direct evidence of father's intent that this child remain in Ireland for the school year, nine months out of the year. Which is what had been happening already as the District Court carefully lays out in its findings of facts beyond ER51. So the District Court knows the child has spent most of the year in Ireland. I'm not sure how this document changes that. You're saying a different conclusion should have been drawn from that, but it doesn't look like he's got the facts wrong. He didn't mention that the trial, the District Court doesn't mention these three things

. So what? He has already recited that the child spends most of the past few years in Ireland. What did this, with these documents prove other than exactly that? The District Court doesn't come back and this record finds there was no shared intent from what I can read of that decision or, excuse me, the District Court says the last shared intent was in 2010. These documents, I think, I argue to you show that there was a change of intent. Our job is not to edit District Court opinions. Our job is to review for error. So let's say that this record didn't mention these particular documents. What is it that requires a District Court to mention particular documents? And the record, what is the IFS Judge Clifton has pointed out that Judge got the facts? Obviously understands what the situation is. He describes historical facts. Why does he have to mention where the heads of the mentioned specific documents? In part, Your Honor, because if Moses is extended beyond its sabbatical, it's 15 month time period, then when the District Court finds, then the District Court goes looking for the last shared parental intent. What the District Court does in its long decision, it recites a number of facts that relate to custody where Mom lives, whether she has a permanent residence, whether she has a car in Ireland, but the shared intent test in Moses goes back, makes 3.2 and 3.3, very, very important. It's very clear he looked at that. He acknowledged this whole pending custody determination. He looked at all the documents. He just draws a different conclusion than you do. As my colleague, God rest his soul, Bill Hilton, who argued Moses in this court, would point out the treaty isn't a custody decision. It's a jurisdictional decision. Of course. You don't need to tell me what the treaty says. In fact, the judge just makes it as a matter of point of what's the status. So we know the custody that habitual residence doesn't follow custody, but now you're arguing to us that in these custody papers that are going to determine where things sort out in the California courts that were supposed to divine from that something different than the District Court did. And you think he should have mentioned, and I'm saying he acknowledged it, but he doesn't draw the same conclusion you do. I don't know why we have to say that's clearly erroneous. I don't think that he, I don't find in his statement a decision, you know, under that he acknowledges these 3 documents. And there's another problem. He doesn't have to acknowledge each one, but he obviously is aware, as Judge Kaczynski said, that he doesn't need to edit the opinion, but he's certainly aware of all the documents, and he references the fact that there is this pending determination

. So he definitely has that in mind when he draws his final factual. But there's a second problem with that, and that's a car. And that's the specific section. A car is 42 USC, 11603E, and that has to do with the burden of proof. Congress has told the District Court and the State Court because these issues are tried more in state courts across the country than in federal courts. 11603E1 says, a petitioner in an action brought under subsection B, the hate convention, shall establish by a preponderance of evidence dot dot dot, that the child has been wrongfully removed or retained within the meaning of the convention. Now, Congress was aware that it could change the burden of proof, because it did change the burden of proof with regard to Article 13B, which is the grave risk, and it also changed it with regard to Article 20, which is the fundamental purpose test, and there it made the test clear in convincing evidence. By ignoring these documents, the trial court, this district court, has now said, Ms. Murphy must prove unequivocally that the child has moved. I don't think it said unequivocally she has to prove it. I mean, I don't see what, as I have to understand your argument, you're now saying that, in effect, the district court collapsed the preponderance test and rose it to a clear convincing as you might do in a risk situation. So maybe you can point me to where in the district court opinion you think that happened. ER62, the court's decision, page 13, lines 1 through 4. Quote. So page 15? ER62, it is page 13 at the market, the court's decision. Okay. And which line? I'll start at line 2. Okay. Quote in. Quote in the absence of either of these circumstances. However, a prior habitual residence should be deemed supplanted. Sorry, that's so many numbers here. Looking at different page 62. I'm sorry. There's an ER62. Yes, I'm sorry. I was looking at page 62 at the top

. This is the ER62. I'm sorry. I'm with you. So at line 2. In the absence of. Yes, in the absence of either of these circumstances, however, a prior habitual residence should be deemed supplanted. Only where and only where and the following appear again italics. The objective facts point unequivocally to this conclusion. But does not understand that quotation. So correct me if I'm wrong. The judge first goes through, where is this child's habitual residence? Makes a determination that it's the United States. And then says, of course, there are these weird circumstances where we don't really credit that. And we look at the child's socialization and climatization to really override that. And that is a rare unusual case. And that's what the judge is talking about here. Quoting, I thought from. What is? Yeah, from most. The Bible. Or the condition. And you know what? So I'm sorry. I think that. In making the habitual residence determination at the outset, the judge doesn't up the standard in any way. Does he? I think when I would argue that when the standard is unequivocal. Let's go back when he has part A, which I think he labels. I just run that. I shared a. Sherry Cascadee and intent, who just basically the habitual residence

. Touchstone. That's basically a preponderance that she hasn't shown that it was anything different than, you know, the trial period. And then the, you know, the carrying on the trial period. It's only when he's talking about this socialization, this unusual circumstance of a climatization that he quotes. The confidence. Unifuable confidence. Isn't that true? Yes, but that's an excellent segue into his Moses should Moses be read beyond its sabbatical meaning Moses was in Beverly Hills for 15 months. And the quiet there is a split in the circus as we now know. This is the perhaps the last question that the United States Supreme Court has not answered as far as the hate convention is concerned. In the last four years, it has answered the question about what an AXA at border is, what an article three moodness is, and whether or not equitable tolling applies. And if we look at those, and if we look at the, if we look at the car itself, the car tells us, and those decisions tell us that interpreting a treaty is different than interpreting a statute. And that treaties are to be interpreted consistent with the shared expectations of the contracting parties. That's what's on Oets. One, two. You've lost me. I have no idea what you're talking about now. You started by telling us about extending Moses and now you're on treaties. So I don't know your point. I, I, I, this, just, what are you trying to say? That just has other jurisdictions. International. Not just what is the point you're trying to make? Don't tell us who's that. What, what, what is your point? The takeaway is that Moses requirement that a child cannot be removed from a country that was the parents, the country of the parents last shared intent needs to be recalibrated. It also needs to be considered whether or not that rule and Moses. I don't know which of you are going to be calibrated. If you think it's wrong, you can file a petition for a bank reviewing and we can reconsider Moses if the majority of the active judges go to take it to bank. But we can't overrule Moses. So I don't know what's exactly same, but you can't read

. It's pretty clear. Yeah, Moses says on the one point on the initial point of habitual residence is a upon the standard and on the question of acclimatization, which is a rare circumstance, it's a convincing standard, something like that. You know, it's a high standard. Is it you have a problem with that? Yes, I do. Okay. I do because, for example, that opinion is based to some extent on one of the most widely reported cases, Shaw. And Shaw has now been... It was very, I believe. It was somewhat a someplace down under, I am with Shaw. Yeah, yeah, SHH, not SHHW. So you know, it's a huge issue, so the United Kingdom case. But in the last year, the United Kingdom has had to change its approach to habitual residence. And it is now consistent with paragraph 66 of the... What if you disagree with Moses? This is not the time to take it up. The time to take it up is when you're filing a bank. We're bound by Moses. We can't change it. And so what you need to tell us is something that we can do. Otherwise, if you lose on the Moses' point, you file and ask the whole Court to take it up. But it's not helping you today. All right. I have your point. In your view, you think Moses is at odds with the convention? Yes

. It is. And it's also at odds with our treaty for sister countries. The treaty is in effect in 92 states. The United States has a treaty with 72 of those. This last year, the United Kingdom has abandoned its shared intent and has replaced it with a pure factual evaluation of what the situation is for the parents. And there's really good reasons for that. So we'll go into just now. Well, even if you... You know, the pure factual, I think, even if you take that standard, I mean, if you look at what the district court did on a climateization is to basically say, there is... There's not enough here to really show a climateization. That's kind of an ultimate conclusion of the facts. Based on, you know, he cites Ruiz and basically said, this is a lot like the Ruiz kids. And that's an excellent point. And it ties in with Judge Christen's comment about in bank and chief Judge Kuzinski's comment about the same thing. This court might perhaps can limit Moses through sabbaticals. This is not a sabbatical. Well, this is a case in which the child didn't go to Ireland until nine months after the parents marriage was over. The move to Ireland occurred with the whole hearted agreement of both parents, the flutter and aged extensively. I ask you this, is a climateization in your view a subset of habitual residence or does it find some freestanding form in the convention? That's difficult to answer. I go back to chief judge Kuzinski's footnote eight, which is a reference to the hunting of the snark. It was a very apt literary reference to put into a footnote in this case. It's very difficult to know where to come up with one standard for a three-month-old infant. The standard applied to a five-year-old, the standard applying as in this case to a eight-year-old. The main question is, what does the convention spell out a climateization or is that really a judicial framework to try to understand and how to implement the convention? If you look at Perez Verrera's paragraph, this is my question. Here's my first question. Here's my question again. I'm going to just give it to you and then you can answer it. Then you can talk all you want about something else. Does the convention spell out a provision for a climateization separate from habitual residence or is that a judicially created? It does not. But what it does say, and if we look at the report of Ms. Perez Verrera at paragraph 66, what she talks about is habitual residence being a factual determination. What Moses does and why would argue that Moses needs to be limited to a sabbatical case is it injects an element into a habitual residence of intent. When I hear intent, I think domicile. When you look at the stat, these conventions, which doesn't define habitual residence, and you look at Ms. Perez Verrera's paragraph 66, what you see is a pure factual test. And that's what our treaty, our 72 treaties countries, have all gone to. And how is that different from Moses? I mean, you have to find habitual residence based on facts. I thought what Moses said is you've got to sort of look at what both parents, what else is there under the intention of both parents? Because they have custody of the child, and somehow you have to divine that there is some sort of intent. Somebody has driven this child's, I mean, you know what happened with the child, often the child is not old enough to have an intent. And certainly most children don't determine their own residence domicile. So what is it about Moses? Do you think it's interesting? I mean, I think the fact that under the convention, there's supposed to be a consistent body of law worldwide. And I think we do have an obligation to look at what other countries are doing. And if what we have been doing is inconsistent with that, perhaps we need to look up hostage for a considering. So that Moses is not written in stone to the speak. But... Thank you. No, I.

. The main question is, what does the convention spell out a climateization or is that really a judicial framework to try to understand and how to implement the convention? If you look at Perez Verrera's paragraph, this is my question. Here's my first question. Here's my question again. I'm going to just give it to you and then you can answer it. Then you can talk all you want about something else. Does the convention spell out a provision for a climateization separate from habitual residence or is that a judicially created? It does not. But what it does say, and if we look at the report of Ms. Perez Verrera at paragraph 66, what she talks about is habitual residence being a factual determination. What Moses does and why would argue that Moses needs to be limited to a sabbatical case is it injects an element into a habitual residence of intent. When I hear intent, I think domicile. When you look at the stat, these conventions, which doesn't define habitual residence, and you look at Ms. Perez Verrera's paragraph 66, what you see is a pure factual test. And that's what our treaty, our 72 treaties countries, have all gone to. And how is that different from Moses? I mean, you have to find habitual residence based on facts. I thought what Moses said is you've got to sort of look at what both parents, what else is there under the intention of both parents? Because they have custody of the child, and somehow you have to divine that there is some sort of intent. Somebody has driven this child's, I mean, you know what happened with the child, often the child is not old enough to have an intent. And certainly most children don't determine their own residence domicile. So what is it about Moses? Do you think it's interesting? I mean, I think the fact that under the convention, there's supposed to be a consistent body of law worldwide. And I think we do have an obligation to look at what other countries are doing. And if what we have been doing is inconsistent with that, perhaps we need to look up hostage for a considering. So that Moses is not written in stone to the speak. But... Thank you. No, I... Maybe this isn't a public case for a bank. Not my first decide, but I'm failing to understand what it is that you think Moses got wrong. What it is that is now being done in other countries that are showing consistent with what we said should be done. Or what the district judge did here? I don't know that Moses got in wrong in sabbatical cases. Moses was a 15 month period in Beverly Hills. This case is a three year period of an eight year old wife. It's a three year period where she kept going back and forth. But it's not like she was there for three years in one place, in one house, one school, one set of friends. So this was a child from the beginning, was supposed to be shopping back and forth in Ireland and the United States. And one in Ireland, she was in four different places. A public time she was taken to... ...Madevis... ...put...

.. Maybe this isn't a public case for a bank. Not my first decide, but I'm failing to understand what it is that you think Moses got wrong. What it is that is now being done in other countries that are showing consistent with what we said should be done. Or what the district judge did here? I don't know that Moses got in wrong in sabbatical cases. Moses was a 15 month period in Beverly Hills. This case is a three year period of an eight year old wife. It's a three year period where she kept going back and forth. But it's not like she was there for three years in one place, in one house, one school, one set of friends. So this was a child from the beginning, was supposed to be shopping back and forth in Ireland and the United States. And one in Ireland, she was in four different places. A public time she was taken to... ...Madevis... ...put... ...in the middle of the school year. And this thing, Judge, looked at all this very carefully. And whatever you think the standard should be. It's hard for me to believe that this thing Judge... ...I just see what this Judge couldn't done differently to look at the record thoroughly and make it a finding. I mean, it's not finding that you or your client agree with. But this happens in every case. Every case we see, one side is happy with what this thing Judge did and one side is not happy. Or else you wouldn't be here, right? Right. So however... What's the big problem here? The big problem is the extension of Moses beyond its own facts. And even the court in Moses cautioned about extending Moses beyond its facts. But this happens with... ..

...in the middle of the school year. And this thing, Judge, looked at all this very carefully. And whatever you think the standard should be. It's hard for me to believe that this thing Judge... ...I just see what this Judge couldn't done differently to look at the record thoroughly and make it a finding. I mean, it's not finding that you or your client agree with. But this happens in every case. Every case we see, one side is happy with what this thing Judge did and one side is not happy. Or else you wouldn't be here, right? Right. So however... What's the big problem here? The big problem is the extension of Moses beyond its own facts. And even the court in Moses cautioned about extending Moses beyond its facts. But this happens with... ...Ruey's case. President's always extended beyond the facts. Because that's how President put it. So what is it that's actually wrong? What is it that should have happened here that didn't? What should have happened in this case? Yeah. Other than saying we should have won. Yes. The Sheridan Tant should have been decided in conjunction with a mention and a review by the District Court Judge of ER 101 136 and 146. Secondly, it should have not adopted Moses to the extent that it found there was no Sheridan Tant in determining a climateization and insane that the decision or the burden on Ms. Murphy to return her daughter was unequivocal. I think it's very appropriate for the facts that were presented to the court. So your objection in the first and the finding of habitual residence is that the District Court didn't mention three documents. That's it. And then you go to the documentation and you say that's the one thing. I think that's it. Why don't we give another side and see what they have to say about it? Thank you. Good morning, Your Honors. May please the Court. My name is William Sloan. I'm appearing in proper. I don't think it would surprise the court to hear that I believe Moses is a decision that is important to the Ninth Circuit. It's important to the jurisprudence on hate convention and I believe it was applied properly here. What is best I can hear, I understood the opposing counsel, what he takes issue with him in Moses. And again, I remember I said I think we do have an obligation to see what other countries are doing and if we are out of staff. I'm not saying we are obviously, but I think what he's objecting to is, by the way, the second part of Moses, the part of the legalization. And I think opposing counsel is saying that having a heightened burden of proof for that is truly considered. Now of course we can't do it here. But do you want to speak to that? Sure, and as I understood the argument of counsel, he began with a concern that perhaps the district court had applied the wrong burden of proof

.Ruey's case. President's always extended beyond the facts. Because that's how President put it. So what is it that's actually wrong? What is it that should have happened here that didn't? What should have happened in this case? Yeah. Other than saying we should have won. Yes. The Sheridan Tant should have been decided in conjunction with a mention and a review by the District Court Judge of ER 101 136 and 146. Secondly, it should have not adopted Moses to the extent that it found there was no Sheridan Tant in determining a climateization and insane that the decision or the burden on Ms. Murphy to return her daughter was unequivocal. I think it's very appropriate for the facts that were presented to the court. So your objection in the first and the finding of habitual residence is that the District Court didn't mention three documents. That's it. And then you go to the documentation and you say that's the one thing. I think that's it. Why don't we give another side and see what they have to say about it? Thank you. Good morning, Your Honors. May please the Court. My name is William Sloan. I'm appearing in proper. I don't think it would surprise the court to hear that I believe Moses is a decision that is important to the Ninth Circuit. It's important to the jurisprudence on hate convention and I believe it was applied properly here. What is best I can hear, I understood the opposing counsel, what he takes issue with him in Moses. And again, I remember I said I think we do have an obligation to see what other countries are doing and if we are out of staff. I'm not saying we are obviously, but I think what he's objecting to is, by the way, the second part of Moses, the part of the legalization. And I think opposing counsel is saying that having a heightened burden of proof for that is truly considered. Now of course we can't do it here. But do you want to speak to that? Sure, and as I understood the argument of counsel, he began with a concern that perhaps the district court had applied the wrong burden of proof. And I just want to clarify that. If you look at ER 58, line 14, when he does his initial analysis of habitual residence, he does apply the preponderance of the evidence standard. It's when we turn to the discussion of a climatization and whether a climatization of the facts that lead to an evaluation of a climatization ultimately overcome that initial determination. That is when I believe it was this Court in Moses said that the fact should point unequivocally to a determination that the child is acclimatized. And that was what the district court was quoting and its in quotation marks even when he makes his own determination. It's my, it will come as no surprise to this panel that it's my opinion that that is appropriate when you have the initial determination of habitual residence, which I believe it's important that the parents mutually shared in ten be determined by the courts. That that not be overcome for all of the reasons that have been discussed in all of the cases looking at acclimatization, the concern that a child, you know, God bless our daughter was doing extremely well in Ireland. That alone should not be enough to suddenly transform the intent of the parents into a scenario where the habitual residence changes. Well, if you ask you about the reality is there was this trial period, she would go over there and live for a year. And Miss Murphy would be able to pursue a degree, but one year turned into what to and then two turned into three. Why is that? I mean, that does not seem to really be consistent with the trial period idea at the outset. So it seems to be that there might have been a trial period to begin, but then that may have changed. I appreciate your comments on that. There's no question that the passage of time was a great concern of mine. It was, it was certainly examined at the district court level. When Miss Murphy approached me to consider trying this arrangement where our daughter would be in Ireland, it was from my perspective. She obviously had a different perspective, very clear that it was going to be a trial period. Much of that had to do with my ability to be a part of her life. And as I think the facts played out and as are reflected to some extent in the district court's decision, that became more and more difficult over time. And that is when ultimately the trial period concluded, I indicated in Miss Murphy that our daughter would be coming back here and ultimately then she filed the hate petition. It's still one of my greatest regrets that we're in the courts dealing with this. Well, is there a limit to how long the trial period can last and still be a trial? I mean, if you test drive a car, they may let you take it overnight, but if you still got a couple months later, that's probably about a test drive. In this case, it was a one year or I won school year, and then it went to another and then another and based on the proposed custody arrangements was expected to continue indefinitely like that. So why is that past a trial period? Well, I think that's a very fair question and ultimately I believe the courts have addressed this by saying ultimately it's not appropriate to play some sort of bright line time on these things. But once you do consider where the court will consider the totality of the circumstances, there may be one case where one year is enough and there may be another case like ours happen to be here where three years was not enough. In this situation, we didn't have two parents moving to a different place. I stayed in California, Miss Murphy moved to Ireland

. And I just want to clarify that. If you look at ER 58, line 14, when he does his initial analysis of habitual residence, he does apply the preponderance of the evidence standard. It's when we turn to the discussion of a climatization and whether a climatization of the facts that lead to an evaluation of a climatization ultimately overcome that initial determination. That is when I believe it was this Court in Moses said that the fact should point unequivocally to a determination that the child is acclimatized. And that was what the district court was quoting and its in quotation marks even when he makes his own determination. It's my, it will come as no surprise to this panel that it's my opinion that that is appropriate when you have the initial determination of habitual residence, which I believe it's important that the parents mutually shared in ten be determined by the courts. That that not be overcome for all of the reasons that have been discussed in all of the cases looking at acclimatization, the concern that a child, you know, God bless our daughter was doing extremely well in Ireland. That alone should not be enough to suddenly transform the intent of the parents into a scenario where the habitual residence changes. Well, if you ask you about the reality is there was this trial period, she would go over there and live for a year. And Miss Murphy would be able to pursue a degree, but one year turned into what to and then two turned into three. Why is that? I mean, that does not seem to really be consistent with the trial period idea at the outset. So it seems to be that there might have been a trial period to begin, but then that may have changed. I appreciate your comments on that. There's no question that the passage of time was a great concern of mine. It was, it was certainly examined at the district court level. When Miss Murphy approached me to consider trying this arrangement where our daughter would be in Ireland, it was from my perspective. She obviously had a different perspective, very clear that it was going to be a trial period. Much of that had to do with my ability to be a part of her life. And as I think the facts played out and as are reflected to some extent in the district court's decision, that became more and more difficult over time. And that is when ultimately the trial period concluded, I indicated in Miss Murphy that our daughter would be coming back here and ultimately then she filed the hate petition. It's still one of my greatest regrets that we're in the courts dealing with this. Well, is there a limit to how long the trial period can last and still be a trial? I mean, if you test drive a car, they may let you take it overnight, but if you still got a couple months later, that's probably about a test drive. In this case, it was a one year or I won school year, and then it went to another and then another and based on the proposed custody arrangements was expected to continue indefinitely like that. So why is that past a trial period? Well, I think that's a very fair question and ultimately I believe the courts have addressed this by saying ultimately it's not appropriate to play some sort of bright line time on these things. But once you do consider where the court will consider the totality of the circumstances, there may be one case where one year is enough and there may be another case like ours happen to be here where three years was not enough. In this situation, we didn't have two parents moving to a different place. I stayed in California, Miss Murphy moved to Ireland. Our daughter did come and spend considerable time with me throughout that period. And ultimately the court determined that the totality of the facts and the circumstances did not result in a change of habitual residence. There could be another case where maybe even six months is enough. And so the notion that we apply some sort of a timeline threshold really would constrict the courts in a way that would prevent them from making the determination that their facts. Just to follow up, or I understand to be just close this question a little bit further. The time period weighs in two ways. One of them is, of course, the longer she is at the other location, the more you could have acclimatization. That's governed by the higher standard and so on. But also the longer, sorry, weighs on that, but also the longer she spends time over there, the more there is support for that idea that perhaps that parents had a changed intent. That somewhere along the way, if you just let it go enough for long enough time, even though they didn't put in writing, even though the initial agreement was just to be a top period, at some point, it's extended far enough in time, we can say, well, tacitly, perhaps the parents had now agreed that it's no longer going to be California, it's going to be Ireland, that's the child's individual residence. And it's all troubling and three years of long time. Yeah. In the child's life, how old was he was when she left? She was five and a half. So she's half again is more than half again is old, right? And if you sort of think of, I don't know how far back children remember, but I don't remember he's beyond three years old or four years old. And that's most of her life, really. No, I understand. You think that this big judge looked at all that in these findings and that's it. Well, and I appreciated your comment in the last oral argument that sometimes it's appropriate to just read from opinions and it so happens. I believe Moses speaks precisely to this issue and it says other times, however, circumstances are such that even though the exact length of this day was left open to negotiation, the court is able to find no settled mutual intent from which such abandonment can be inferred. Clearly, this is one of those questions of quote historical and narrative facts, unquote, in which the findings of the district court are entitled to great difference. And Moses was citing the federally decision in that quote. And again, I think it all stems initially from the convention itself, the Perez-Vero report, which says, ultimately, this is a question of fact. And we have lots of jurisprudence that says we should resist applying technical rigid rules that will ultimately determine these cases because each case is different. Yeah, it puts everyone in a difficult situation, of course. Your option would have been, when both the convention earlier, while the child was in Ireland. But on the other hand, I understand the, you know, underlined as they are not necessarily resolved things via the courts. Is there anything in the record beyond this, you know, now we're going on a trial period that you would point to that suggests that you intended she come back to the United States and that you were going to kind of live and let live during the Ireland time, but you were going to be hard fast on the date

. Our daughter did come and spend considerable time with me throughout that period. And ultimately the court determined that the totality of the facts and the circumstances did not result in a change of habitual residence. There could be another case where maybe even six months is enough. And so the notion that we apply some sort of a timeline threshold really would constrict the courts in a way that would prevent them from making the determination that their facts. Just to follow up, or I understand to be just close this question a little bit further. The time period weighs in two ways. One of them is, of course, the longer she is at the other location, the more you could have acclimatization. That's governed by the higher standard and so on. But also the longer, sorry, weighs on that, but also the longer she spends time over there, the more there is support for that idea that perhaps that parents had a changed intent. That somewhere along the way, if you just let it go enough for long enough time, even though they didn't put in writing, even though the initial agreement was just to be a top period, at some point, it's extended far enough in time, we can say, well, tacitly, perhaps the parents had now agreed that it's no longer going to be California, it's going to be Ireland, that's the child's individual residence. And it's all troubling and three years of long time. Yeah. In the child's life, how old was he was when she left? She was five and a half. So she's half again is more than half again is old, right? And if you sort of think of, I don't know how far back children remember, but I don't remember he's beyond three years old or four years old. And that's most of her life, really. No, I understand. You think that this big judge looked at all that in these findings and that's it. Well, and I appreciated your comment in the last oral argument that sometimes it's appropriate to just read from opinions and it so happens. I believe Moses speaks precisely to this issue and it says other times, however, circumstances are such that even though the exact length of this day was left open to negotiation, the court is able to find no settled mutual intent from which such abandonment can be inferred. Clearly, this is one of those questions of quote historical and narrative facts, unquote, in which the findings of the district court are entitled to great difference. And Moses was citing the federally decision in that quote. And again, I think it all stems initially from the convention itself, the Perez-Vero report, which says, ultimately, this is a question of fact. And we have lots of jurisprudence that says we should resist applying technical rigid rules that will ultimately determine these cases because each case is different. Yeah, it puts everyone in a difficult situation, of course. Your option would have been, when both the convention earlier, while the child was in Ireland. But on the other hand, I understand the, you know, underlined as they are not necessarily resolved things via the courts. Is there anything in the record beyond this, you know, now we're going on a trial period that you would point to that suggests that you intended she come back to the United States and that you were going to kind of live and let live during the Ireland time, but you were going to be hard fast on the date. I mean, is there anything beyond those initial statements that we should look to in the record to see whether the district court made a factual error? Well, I did point out in my brief and did point out to the district court, for example, when council was raising the issue of the proposed settlement agreement. There were a few points that I made when it came up in the district court, I started with my general understanding that settlement agreements typically are not used as evidence, but they were introduced here. And I decided I'd rather speak to them and try to just have them removed from the record. And what I pointed out was that was a draft and there was a subsequent draft where the language was removed about where ultimately our daughter would live. And that ultimately reflected things that I testified to which in place to my declaration, which was that Miss Murphy was not prepared to say that she would live in Ireland. And that was my declaration that I knew she had that amended draft or no. I do. Do we have it in the record? You do. Okay. And it's in the supplemental excerpts of record, my declaration sites it had pages 50 and 51 of the supplemental ER. And then the actual draft is found at supplemental excerpts of record 173 through 178. I present to both the original and the supplemental. So I want 70 feet to 178. Yes. And again, that's the SER not the ER. Thank you. That's exhibit. I'm sorry. Exhibit 38 starts at 173. And I believe it's the February draft first and then the later draft after just the excerpts of February 23. Right. Okay. I think one should make. So I suppose the only other point that I would make is that there was discussion about the Ruiz case. And I do not interpret that as critical to the court's ultimate determination. But I do believe it reflected another case where time if a strict time limit were imposed, it would create. It would create

. I mean, is there anything beyond those initial statements that we should look to in the record to see whether the district court made a factual error? Well, I did point out in my brief and did point out to the district court, for example, when council was raising the issue of the proposed settlement agreement. There were a few points that I made when it came up in the district court, I started with my general understanding that settlement agreements typically are not used as evidence, but they were introduced here. And I decided I'd rather speak to them and try to just have them removed from the record. And what I pointed out was that was a draft and there was a subsequent draft where the language was removed about where ultimately our daughter would live. And that ultimately reflected things that I testified to which in place to my declaration, which was that Miss Murphy was not prepared to say that she would live in Ireland. And that was my declaration that I knew she had that amended draft or no. I do. Do we have it in the record? You do. Okay. And it's in the supplemental excerpts of record, my declaration sites it had pages 50 and 51 of the supplemental ER. And then the actual draft is found at supplemental excerpts of record 173 through 178. I present to both the original and the supplemental. So I want 70 feet to 178. Yes. And again, that's the SER not the ER. Thank you. That's exhibit. I'm sorry. Exhibit 38 starts at 173. And I believe it's the February draft first and then the later draft after just the excerpts of February 23. Right. Okay. I think one should make. So I suppose the only other point that I would make is that there was discussion about the Ruiz case. And I do not interpret that as critical to the court's ultimate determination. But I do believe it reflected another case where time if a strict time limit were imposed, it would create. It would create. That's the first time I've ever seen that. Usually we tell you to turn up. Yeah. I use this a wake up alarm. It's time to get it from this place. There have been cases where it'd be useful. Well, all I wanted to say is that the Ruiz case in my mind is an example of another scenario where the court needed the flexibility to reach the decision that it reached without being constrained by some sort of hard and fast time limit. So to that extent, I feel like it's useful and I feel like it reflects. And in fact, it does reflect that Moses is a decision that has had a very influential course in many, if not all, the circuits as well as jurisdictions outside the United States. So with that, I believe that the district court reached a sound decision. It considered the total of the circumstances. It applied the appropriate burdens and for all those reasons, I believe that that decision should be affirmed. If there are any other questions. Thank you. Thank you. Well, you've taken more than your time. I wish a minute for about who you can take it. But I think we understand the case. I'd like to answer both Judge Clifton and Judge McCallan's question to Mr. Sloan. Is there anything else in the record that we should look at? And I would direct the court's attention to page 93 of the trial transcript. Where is that in the year? I'm sorry. Is that in the exorcerator? Is that in the exorcerator? I don't believe so. That's not in the exorcerator record. I don't believe so. Is it in the district court record or is it just a transcript you have? I will. We only have access to the district court record

. That's the first time I've ever seen that. Usually we tell you to turn up. Yeah. I use this a wake up alarm. It's time to get it from this place. There have been cases where it'd be useful. Well, all I wanted to say is that the Ruiz case in my mind is an example of another scenario where the court needed the flexibility to reach the decision that it reached without being constrained by some sort of hard and fast time limit. So to that extent, I feel like it's useful and I feel like it reflects. And in fact, it does reflect that Moses is a decision that has had a very influential course in many, if not all, the circuits as well as jurisdictions outside the United States. So with that, I believe that the district court reached a sound decision. It considered the total of the circumstances. It applied the appropriate burdens and for all those reasons, I believe that that decision should be affirmed. If there are any other questions. Thank you. Thank you. Well, you've taken more than your time. I wish a minute for about who you can take it. But I think we understand the case. I'd like to answer both Judge Clifton and Judge McCallan's question to Mr. Sloan. Is there anything else in the record that we should look at? And I would direct the court's attention to page 93 of the trial transcript. Where is that in the year? I'm sorry. Is that in the exorcerator? Is that in the exorcerator? I don't believe so. That's not in the exorcerator record. I don't believe so. Is it in the district court record or is it just a transcript you have? I will. We only have access to the district court record. We don't have access to. If it's not filed as a document. I can't swear that it's in the district court record. I believe it is. You could, they have a little piece of paper here that you can make us up a known location. And if you can point us to where it is in the district court record, that would be helpful. All right. May I have until the end of the day to do that? Sure. Thank you. Okay. And I'll serve that on the, Mr. Sloan as well. I would just add that you're at this time. Thank you. Thank you. And Kaysha Saga was passed a minute. And we also thank the court and Mr. Sloan for agreeing to expedite this matter. We will hear very quickly and Miss Murphy appreciates that greatly. Of course. Thank you.

May it please the court. My name is Thomas Wolfram. I represent Elaine Murphy. Chief Judge Kaczynski, Judge Macchewin, Judge Tristan, Mr. Sloan. This case is a clear case of wrongful removal. In retention. From the child's standpoint, in June of 2016, this little girl left Ireland and her mother and her school and her dance for Irish dance for summer in the United States. And she was thinking that she would return at the end of August to Ireland just as she had done after first grade. I'm so you're telling us what's in the child's mind? Yes, because this case has unique facts, Your Honor. What's the legal issue before us? Yeah. The legal issue would include whether the district court findings of facts were clearly erroneous. But what's the core question that you're asking us to decide? Well, there is clear error below. So that standard, I'd refer you to ER-136, ER-146, ER-101, which are the income and expense declarations of the parties exchanged on February 16, 2013 in Ireland, and the February 2013 Marital Selement Agreement proposed by Mr. Murphy, excuse me, by Mr. Sloan, additionally. Wait, wait, this is February 13, 2014? 13. And what number is that? Those are ER-101, 136, and 146. That's the settlement agreement. 136 and 146 are the California State Family Law Act forms for income and expense declaration information. On page 4 at paragraph 16, the form calls for the parents. I'm sorry. You had two forms, which form? 136 along 146. Both. They're the same. They're the mirror forms, Your Honor. One is 136, I believe, is from Mr. Sloan. 146 is from Ms. Murphy. In the California divorce procedure, are you? Yes, 136 starts with paragraph 16. Yes. So you said four. So I just want to make sure I'm looking at what you're pointing at. Exhibit D. Exhibit D is reproduced as ER-136. And if we look at paragraph 16, I'm sorry, 16, I'm sorry. Four. It's page four. This form has been. That's fine. Paragraph 16. Go ahead. Yes. One is paragraph 16, do you? And this is Mr. Sloan's February 2013 and Remukman. I remember the removal, if you will, is in June of 2013. So February, March, April, May, four months later. Okay. 146. Yes, sorry. What does this do to help you? Okay. Here, Mr. Sloan is saying. I know what it does. What does it do to help you? How does it advance your point? I believe is evidence of shared parental intent under your Moses' decision, especially when read would say, our Moses' decision, our Moses' decision, especially when, if you look also at ER-100 or more. Well, I'm sorry. And let me just make clear. This does not talk geography. This talks parental custody. It does not say where each parent is or where the child will be on the hands, just says where the who, which parent the child will spend time with. And you're under, that's why we turn to ER-101, exhibit 39 in trial. Okay. And where on page 101 are you? At paragraph 3.2, joint custody, and paragraph 3.3, final custody order. Paragraph 3.2, okay? Second line says, may I use the child's name or should I just refer to her as E? E or E.S. That's what's in the record? Yes. Quote, Bill and Elaine will have joint physical custody of E.S. and will share time with E as much as possible, given that E will, and here's a key word, reside in Ireland with Elaine during the school year and in California with Bill during summers and holidays. I'd also like to direct your attention to the next paragraph 3.3, in which Mr. Sloan refers to the California Supreme Court case of Montenegro versus D.S. There is a controversy in the, or there's a decision in the California Court. In fact, it's Montenegro versus D.S. that if there is a final custody order, that order cannot merely be changed by a party convincing the trial court that there is that it is in the child's best interest. When you make a final order, what you have to have as I continue to read, which means that a party, excuse me, quote, which means that a party is seeking to change the agreed upon custody arrangement. And here we have an agreed upon custody arrangement for the future. This is a custody arrangement for after the divorce. I'm not sure how it speaks to what happened before. We know what, what the facts were when the child was present at one place. In the face of those facts, the District Court concluded that the prior habitual residence had not been abandoned. So what's the point of telling us what the future custody arrangement is, which includes residents in both places? Well, it includes residents for nine months or a little bit more than nine months in Ireland. This is not a 50-50 shuttle case as some of the cases that come up under the habitual residence are. The child will spend six months in one country and six months in another year on it. This is a nine month plus nine months, a little less than three months. Or maybe a different way to ask it is, where did you point to this and this and this, but we're looking at a very extensive findings by the District Court. So where did the District Court go wrong? What is clearly arounias? If you could point me to anything in the District Court, this clearly arounias that would be helpful. Thank you for asking that question because you are right. The District Court wrote a long detailed opinion that follows your decision of Moses. And I'd like to speak to that in a moment. Just answer this question. The District Court did not mention these three exhibits in its opinion. And these are crucial opinions. This is because the crucial facts as the subject of the subject have reviewed all the materials submitted, all of them for David's. There's any reason to doubt that he did that. He has a thorough misjudge of the thorough discussion of the facts. Clearly shows on the standing of what was in the record before him. And he also said just to act that, he said the date of dissolution, which was up to over 2013, and then he said still pending our orders regarding custody support, child and spouse. So he references that. Do you have a final child custody order? I don't believe so. That's what I thought. So what you have is exactly what the District Court said. You have a divorce or a dissolution. But as of the time of the District Court order, you do not yet have a final child custody order. I mean, so he reviewed all the papers. He tells you you don't have a final order. So I'm not sure how somehow that document upends his entire decision. On this point, failure to mention ER101, ER136, and ER146. What's so critical about those documents that the failure to mention them is such a glaring error? If we, it relates back to whether or not shared, last shared, parental intent remains the standard in this district. Well, but these documents all pertain to the future. They're what is being proposed for custody after dissolution. But the Court's findings carefully recited when the child was at what place, and it's not inconsistent with this, the child had spent most of the year in Ireland. And the District Court got those facts correct. You're not complaining about any of those. So I'm not sure why the proposal for what's supposed to happen in the future changes the facts that the judge was looking at, such that the failure to mention those documents is so critical. Judge, ER136 and ER146 are not about the future. They are about the present in the past, because in paragraph 16, both parents say the child has been with mother in Ireland for 70 percent of the time. But the judge has already said that in the findings of fact. What in the findings of fact is incorrect or fails to reflect what you just said. He's recited where she's been. The takeaway would be that in paragraph 3.2 of ER101, father is can showing his last, is showing his parental intent that this child has been and is going to remain in Ireland during the school year. It's a question of, this is evidence ER101, paragraph 3.2 and 3.3 are circumstantial or direct evidence of father's intent that this child remain in Ireland for the school year, nine months out of the year. Which is what had been happening already as the District Court carefully lays out in its findings of facts beyond ER51. So the District Court knows the child has spent most of the year in Ireland. I'm not sure how this document changes that. You're saying a different conclusion should have been drawn from that, but it doesn't look like he's got the facts wrong. He didn't mention that the trial, the District Court doesn't mention these three things. So what? He has already recited that the child spends most of the past few years in Ireland. What did this, with these documents prove other than exactly that? The District Court doesn't come back and this record finds there was no shared intent from what I can read of that decision or, excuse me, the District Court says the last shared intent was in 2010. These documents, I think, I argue to you show that there was a change of intent. Our job is not to edit District Court opinions. Our job is to review for error. So let's say that this record didn't mention these particular documents. What is it that requires a District Court to mention particular documents? And the record, what is the IFS Judge Clifton has pointed out that Judge got the facts? Obviously understands what the situation is. He describes historical facts. Why does he have to mention where the heads of the mentioned specific documents? In part, Your Honor, because if Moses is extended beyond its sabbatical, it's 15 month time period, then when the District Court finds, then the District Court goes looking for the last shared parental intent. What the District Court does in its long decision, it recites a number of facts that relate to custody where Mom lives, whether she has a permanent residence, whether she has a car in Ireland, but the shared intent test in Moses goes back, makes 3.2 and 3.3, very, very important. It's very clear he looked at that. He acknowledged this whole pending custody determination. He looked at all the documents. He just draws a different conclusion than you do. As my colleague, God rest his soul, Bill Hilton, who argued Moses in this court, would point out the treaty isn't a custody decision. It's a jurisdictional decision. Of course. You don't need to tell me what the treaty says. In fact, the judge just makes it as a matter of point of what's the status. So we know the custody that habitual residence doesn't follow custody, but now you're arguing to us that in these custody papers that are going to determine where things sort out in the California courts that were supposed to divine from that something different than the District Court did. And you think he should have mentioned, and I'm saying he acknowledged it, but he doesn't draw the same conclusion you do. I don't know why we have to say that's clearly erroneous. I don't think that he, I don't find in his statement a decision, you know, under that he acknowledges these 3 documents. And there's another problem. He doesn't have to acknowledge each one, but he obviously is aware, as Judge Kaczynski said, that he doesn't need to edit the opinion, but he's certainly aware of all the documents, and he references the fact that there is this pending determination. So he definitely has that in mind when he draws his final factual. But there's a second problem with that, and that's a car. And that's the specific section. A car is 42 USC, 11603E, and that has to do with the burden of proof. Congress has told the District Court and the State Court because these issues are tried more in state courts across the country than in federal courts. 11603E1 says, a petitioner in an action brought under subsection B, the hate convention, shall establish by a preponderance of evidence dot dot dot, that the child has been wrongfully removed or retained within the meaning of the convention. Now, Congress was aware that it could change the burden of proof, because it did change the burden of proof with regard to Article 13B, which is the grave risk, and it also changed it with regard to Article 20, which is the fundamental purpose test, and there it made the test clear in convincing evidence. By ignoring these documents, the trial court, this district court, has now said, Ms. Murphy must prove unequivocally that the child has moved. I don't think it said unequivocally she has to prove it. I mean, I don't see what, as I have to understand your argument, you're now saying that, in effect, the district court collapsed the preponderance test and rose it to a clear convincing as you might do in a risk situation. So maybe you can point me to where in the district court opinion you think that happened. ER62, the court's decision, page 13, lines 1 through 4. Quote. So page 15? ER62, it is page 13 at the market, the court's decision. Okay. And which line? I'll start at line 2. Okay. Quote in. Quote in the absence of either of these circumstances. However, a prior habitual residence should be deemed supplanted. Sorry, that's so many numbers here. Looking at different page 62. I'm sorry. There's an ER62. Yes, I'm sorry. I was looking at page 62 at the top. This is the ER62. I'm sorry. I'm with you. So at line 2. In the absence of. Yes, in the absence of either of these circumstances, however, a prior habitual residence should be deemed supplanted. Only where and only where and the following appear again italics. The objective facts point unequivocally to this conclusion. But does not understand that quotation. So correct me if I'm wrong. The judge first goes through, where is this child's habitual residence? Makes a determination that it's the United States. And then says, of course, there are these weird circumstances where we don't really credit that. And we look at the child's socialization and climatization to really override that. And that is a rare unusual case. And that's what the judge is talking about here. Quoting, I thought from. What is? Yeah, from most. The Bible. Or the condition. And you know what? So I'm sorry. I think that. In making the habitual residence determination at the outset, the judge doesn't up the standard in any way. Does he? I think when I would argue that when the standard is unequivocal. Let's go back when he has part A, which I think he labels. I just run that. I shared a. Sherry Cascadee and intent, who just basically the habitual residence. Touchstone. That's basically a preponderance that she hasn't shown that it was anything different than, you know, the trial period. And then the, you know, the carrying on the trial period. It's only when he's talking about this socialization, this unusual circumstance of a climatization that he quotes. The confidence. Unifuable confidence. Isn't that true? Yes, but that's an excellent segue into his Moses should Moses be read beyond its sabbatical meaning Moses was in Beverly Hills for 15 months. And the quiet there is a split in the circus as we now know. This is the perhaps the last question that the United States Supreme Court has not answered as far as the hate convention is concerned. In the last four years, it has answered the question about what an AXA at border is, what an article three moodness is, and whether or not equitable tolling applies. And if we look at those, and if we look at the, if we look at the car itself, the car tells us, and those decisions tell us that interpreting a treaty is different than interpreting a statute. And that treaties are to be interpreted consistent with the shared expectations of the contracting parties. That's what's on Oets. One, two. You've lost me. I have no idea what you're talking about now. You started by telling us about extending Moses and now you're on treaties. So I don't know your point. I, I, I, this, just, what are you trying to say? That just has other jurisdictions. International. Not just what is the point you're trying to make? Don't tell us who's that. What, what, what is your point? The takeaway is that Moses requirement that a child cannot be removed from a country that was the parents, the country of the parents last shared intent needs to be recalibrated. It also needs to be considered whether or not that rule and Moses. I don't know which of you are going to be calibrated. If you think it's wrong, you can file a petition for a bank reviewing and we can reconsider Moses if the majority of the active judges go to take it to bank. But we can't overrule Moses. So I don't know what's exactly same, but you can't read. It's pretty clear. Yeah, Moses says on the one point on the initial point of habitual residence is a upon the standard and on the question of acclimatization, which is a rare circumstance, it's a convincing standard, something like that. You know, it's a high standard. Is it you have a problem with that? Yes, I do. Okay. I do because, for example, that opinion is based to some extent on one of the most widely reported cases, Shaw. And Shaw has now been... It was very, I believe. It was somewhat a someplace down under, I am with Shaw. Yeah, yeah, SHH, not SHHW. So you know, it's a huge issue, so the United Kingdom case. But in the last year, the United Kingdom has had to change its approach to habitual residence. And it is now consistent with paragraph 66 of the... What if you disagree with Moses? This is not the time to take it up. The time to take it up is when you're filing a bank. We're bound by Moses. We can't change it. And so what you need to tell us is something that we can do. Otherwise, if you lose on the Moses' point, you file and ask the whole Court to take it up. But it's not helping you today. All right. I have your point. In your view, you think Moses is at odds with the convention? Yes. It is. And it's also at odds with our treaty for sister countries. The treaty is in effect in 92 states. The United States has a treaty with 72 of those. This last year, the United Kingdom has abandoned its shared intent and has replaced it with a pure factual evaluation of what the situation is for the parents. And there's really good reasons for that. So we'll go into just now. Well, even if you... You know, the pure factual, I think, even if you take that standard, I mean, if you look at what the district court did on a climateization is to basically say, there is... There's not enough here to really show a climateization. That's kind of an ultimate conclusion of the facts. Based on, you know, he cites Ruiz and basically said, this is a lot like the Ruiz kids. And that's an excellent point. And it ties in with Judge Christen's comment about in bank and chief Judge Kuzinski's comment about the same thing. This court might perhaps can limit Moses through sabbaticals. This is not a sabbatical. Well, this is a case in which the child didn't go to Ireland until nine months after the parents marriage was over. The move to Ireland occurred with the whole hearted agreement of both parents, the flutter and aged extensively. I ask you this, is a climateization in your view a subset of habitual residence or does it find some freestanding form in the convention? That's difficult to answer. I go back to chief judge Kuzinski's footnote eight, which is a reference to the hunting of the snark. It was a very apt literary reference to put into a footnote in this case. It's very difficult to know where to come up with one standard for a three-month-old infant. The standard applied to a five-year-old, the standard applying as in this case to a eight-year-old. The main question is, what does the convention spell out a climateization or is that really a judicial framework to try to understand and how to implement the convention? If you look at Perez Verrera's paragraph, this is my question. Here's my first question. Here's my question again. I'm going to just give it to you and then you can answer it. Then you can talk all you want about something else. Does the convention spell out a provision for a climateization separate from habitual residence or is that a judicially created? It does not. But what it does say, and if we look at the report of Ms. Perez Verrera at paragraph 66, what she talks about is habitual residence being a factual determination. What Moses does and why would argue that Moses needs to be limited to a sabbatical case is it injects an element into a habitual residence of intent. When I hear intent, I think domicile. When you look at the stat, these conventions, which doesn't define habitual residence, and you look at Ms. Perez Verrera's paragraph 66, what you see is a pure factual test. And that's what our treaty, our 72 treaties countries, have all gone to. And how is that different from Moses? I mean, you have to find habitual residence based on facts. I thought what Moses said is you've got to sort of look at what both parents, what else is there under the intention of both parents? Because they have custody of the child, and somehow you have to divine that there is some sort of intent. Somebody has driven this child's, I mean, you know what happened with the child, often the child is not old enough to have an intent. And certainly most children don't determine their own residence domicile. So what is it about Moses? Do you think it's interesting? I mean, I think the fact that under the convention, there's supposed to be a consistent body of law worldwide. And I think we do have an obligation to look at what other countries are doing. And if what we have been doing is inconsistent with that, perhaps we need to look up hostage for a considering. So that Moses is not written in stone to the speak. But... Thank you. No, I... Maybe this isn't a public case for a bank. Not my first decide, but I'm failing to understand what it is that you think Moses got wrong. What it is that is now being done in other countries that are showing consistent with what we said should be done. Or what the district judge did here? I don't know that Moses got in wrong in sabbatical cases. Moses was a 15 month period in Beverly Hills. This case is a three year period of an eight year old wife. It's a three year period where she kept going back and forth. But it's not like she was there for three years in one place, in one house, one school, one set of friends. So this was a child from the beginning, was supposed to be shopping back and forth in Ireland and the United States. And one in Ireland, she was in four different places. A public time she was taken to... ...Madevis... ...put... ...in the middle of the school year. And this thing, Judge, looked at all this very carefully. And whatever you think the standard should be. It's hard for me to believe that this thing Judge... ...I just see what this Judge couldn't done differently to look at the record thoroughly and make it a finding. I mean, it's not finding that you or your client agree with. But this happens in every case. Every case we see, one side is happy with what this thing Judge did and one side is not happy. Or else you wouldn't be here, right? Right. So however... What's the big problem here? The big problem is the extension of Moses beyond its own facts. And even the court in Moses cautioned about extending Moses beyond its facts. But this happens with... ...Ruey's case. President's always extended beyond the facts. Because that's how President put it. So what is it that's actually wrong? What is it that should have happened here that didn't? What should have happened in this case? Yeah. Other than saying we should have won. Yes. The Sheridan Tant should have been decided in conjunction with a mention and a review by the District Court Judge of ER 101 136 and 146. Secondly, it should have not adopted Moses to the extent that it found there was no Sheridan Tant in determining a climateization and insane that the decision or the burden on Ms. Murphy to return her daughter was unequivocal. I think it's very appropriate for the facts that were presented to the court. So your objection in the first and the finding of habitual residence is that the District Court didn't mention three documents. That's it. And then you go to the documentation and you say that's the one thing. I think that's it. Why don't we give another side and see what they have to say about it? Thank you. Good morning, Your Honors. May please the Court. My name is William Sloan. I'm appearing in proper. I don't think it would surprise the court to hear that I believe Moses is a decision that is important to the Ninth Circuit. It's important to the jurisprudence on hate convention and I believe it was applied properly here. What is best I can hear, I understood the opposing counsel, what he takes issue with him in Moses. And again, I remember I said I think we do have an obligation to see what other countries are doing and if we are out of staff. I'm not saying we are obviously, but I think what he's objecting to is, by the way, the second part of Moses, the part of the legalization. And I think opposing counsel is saying that having a heightened burden of proof for that is truly considered. Now of course we can't do it here. But do you want to speak to that? Sure, and as I understood the argument of counsel, he began with a concern that perhaps the district court had applied the wrong burden of proof. And I just want to clarify that. If you look at ER 58, line 14, when he does his initial analysis of habitual residence, he does apply the preponderance of the evidence standard. It's when we turn to the discussion of a climatization and whether a climatization of the facts that lead to an evaluation of a climatization ultimately overcome that initial determination. That is when I believe it was this Court in Moses said that the fact should point unequivocally to a determination that the child is acclimatized. And that was what the district court was quoting and its in quotation marks even when he makes his own determination. It's my, it will come as no surprise to this panel that it's my opinion that that is appropriate when you have the initial determination of habitual residence, which I believe it's important that the parents mutually shared in ten be determined by the courts. That that not be overcome for all of the reasons that have been discussed in all of the cases looking at acclimatization, the concern that a child, you know, God bless our daughter was doing extremely well in Ireland. That alone should not be enough to suddenly transform the intent of the parents into a scenario where the habitual residence changes. Well, if you ask you about the reality is there was this trial period, she would go over there and live for a year. And Miss Murphy would be able to pursue a degree, but one year turned into what to and then two turned into three. Why is that? I mean, that does not seem to really be consistent with the trial period idea at the outset. So it seems to be that there might have been a trial period to begin, but then that may have changed. I appreciate your comments on that. There's no question that the passage of time was a great concern of mine. It was, it was certainly examined at the district court level. When Miss Murphy approached me to consider trying this arrangement where our daughter would be in Ireland, it was from my perspective. She obviously had a different perspective, very clear that it was going to be a trial period. Much of that had to do with my ability to be a part of her life. And as I think the facts played out and as are reflected to some extent in the district court's decision, that became more and more difficult over time. And that is when ultimately the trial period concluded, I indicated in Miss Murphy that our daughter would be coming back here and ultimately then she filed the hate petition. It's still one of my greatest regrets that we're in the courts dealing with this. Well, is there a limit to how long the trial period can last and still be a trial? I mean, if you test drive a car, they may let you take it overnight, but if you still got a couple months later, that's probably about a test drive. In this case, it was a one year or I won school year, and then it went to another and then another and based on the proposed custody arrangements was expected to continue indefinitely like that. So why is that past a trial period? Well, I think that's a very fair question and ultimately I believe the courts have addressed this by saying ultimately it's not appropriate to play some sort of bright line time on these things. But once you do consider where the court will consider the totality of the circumstances, there may be one case where one year is enough and there may be another case like ours happen to be here where three years was not enough. In this situation, we didn't have two parents moving to a different place. I stayed in California, Miss Murphy moved to Ireland. Our daughter did come and spend considerable time with me throughout that period. And ultimately the court determined that the totality of the facts and the circumstances did not result in a change of habitual residence. There could be another case where maybe even six months is enough. And so the notion that we apply some sort of a timeline threshold really would constrict the courts in a way that would prevent them from making the determination that their facts. Just to follow up, or I understand to be just close this question a little bit further. The time period weighs in two ways. One of them is, of course, the longer she is at the other location, the more you could have acclimatization. That's governed by the higher standard and so on. But also the longer, sorry, weighs on that, but also the longer she spends time over there, the more there is support for that idea that perhaps that parents had a changed intent. That somewhere along the way, if you just let it go enough for long enough time, even though they didn't put in writing, even though the initial agreement was just to be a top period, at some point, it's extended far enough in time, we can say, well, tacitly, perhaps the parents had now agreed that it's no longer going to be California, it's going to be Ireland, that's the child's individual residence. And it's all troubling and three years of long time. Yeah. In the child's life, how old was he was when she left? She was five and a half. So she's half again is more than half again is old, right? And if you sort of think of, I don't know how far back children remember, but I don't remember he's beyond three years old or four years old. And that's most of her life, really. No, I understand. You think that this big judge looked at all that in these findings and that's it. Well, and I appreciated your comment in the last oral argument that sometimes it's appropriate to just read from opinions and it so happens. I believe Moses speaks precisely to this issue and it says other times, however, circumstances are such that even though the exact length of this day was left open to negotiation, the court is able to find no settled mutual intent from which such abandonment can be inferred. Clearly, this is one of those questions of quote historical and narrative facts, unquote, in which the findings of the district court are entitled to great difference. And Moses was citing the federally decision in that quote. And again, I think it all stems initially from the convention itself, the Perez-Vero report, which says, ultimately, this is a question of fact. And we have lots of jurisprudence that says we should resist applying technical rigid rules that will ultimately determine these cases because each case is different. Yeah, it puts everyone in a difficult situation, of course. Your option would have been, when both the convention earlier, while the child was in Ireland. But on the other hand, I understand the, you know, underlined as they are not necessarily resolved things via the courts. Is there anything in the record beyond this, you know, now we're going on a trial period that you would point to that suggests that you intended she come back to the United States and that you were going to kind of live and let live during the Ireland time, but you were going to be hard fast on the date. I mean, is there anything beyond those initial statements that we should look to in the record to see whether the district court made a factual error? Well, I did point out in my brief and did point out to the district court, for example, when council was raising the issue of the proposed settlement agreement. There were a few points that I made when it came up in the district court, I started with my general understanding that settlement agreements typically are not used as evidence, but they were introduced here. And I decided I'd rather speak to them and try to just have them removed from the record. And what I pointed out was that was a draft and there was a subsequent draft where the language was removed about where ultimately our daughter would live. And that ultimately reflected things that I testified to which in place to my declaration, which was that Miss Murphy was not prepared to say that she would live in Ireland. And that was my declaration that I knew she had that amended draft or no. I do. Do we have it in the record? You do. Okay. And it's in the supplemental excerpts of record, my declaration sites it had pages 50 and 51 of the supplemental ER. And then the actual draft is found at supplemental excerpts of record 173 through 178. I present to both the original and the supplemental. So I want 70 feet to 178. Yes. And again, that's the SER not the ER. Thank you. That's exhibit. I'm sorry. Exhibit 38 starts at 173. And I believe it's the February draft first and then the later draft after just the excerpts of February 23. Right. Okay. I think one should make. So I suppose the only other point that I would make is that there was discussion about the Ruiz case. And I do not interpret that as critical to the court's ultimate determination. But I do believe it reflected another case where time if a strict time limit were imposed, it would create. It would create. That's the first time I've ever seen that. Usually we tell you to turn up. Yeah. I use this a wake up alarm. It's time to get it from this place. There have been cases where it'd be useful. Well, all I wanted to say is that the Ruiz case in my mind is an example of another scenario where the court needed the flexibility to reach the decision that it reached without being constrained by some sort of hard and fast time limit. So to that extent, I feel like it's useful and I feel like it reflects. And in fact, it does reflect that Moses is a decision that has had a very influential course in many, if not all, the circuits as well as jurisdictions outside the United States. So with that, I believe that the district court reached a sound decision. It considered the total of the circumstances. It applied the appropriate burdens and for all those reasons, I believe that that decision should be affirmed. If there are any other questions. Thank you. Thank you. Well, you've taken more than your time. I wish a minute for about who you can take it. But I think we understand the case. I'd like to answer both Judge Clifton and Judge McCallan's question to Mr. Sloan. Is there anything else in the record that we should look at? And I would direct the court's attention to page 93 of the trial transcript. Where is that in the year? I'm sorry. Is that in the exorcerator? Is that in the exorcerator? I don't believe so. That's not in the exorcerator record. I don't believe so. Is it in the district court record or is it just a transcript you have? I will. We only have access to the district court record. We don't have access to. If it's not filed as a document. I can't swear that it's in the district court record. I believe it is. You could, they have a little piece of paper here that you can make us up a known location. And if you can point us to where it is in the district court record, that would be helpful. All right. May I have until the end of the day to do that? Sure. Thank you. Okay. And I'll serve that on the, Mr. Sloan as well. I would just add that you're at this time. Thank you. Thank you. And Kaysha Saga was passed a minute. And we also thank the court and Mr. Sloan for agreeing to expedite this matter. We will hear very quickly and Miss Murphy appreciates that greatly. Of course. Thank you