In Farr v Kendrick, --- Fed.Appx. ----, 2020 WL 4877531 (9th Cir.,2020) (not selected for publication) Michael Farr filed a pro se petition under the International Child Abduction Remedies Act, 22 U.S.C. § 9001 et seq., for the return of his twin minor children to Mexico, after his ex-wife and mother of the children, Bonnie Jeanene Kendrick, took them from Mexico to live with her in Arizona. The district court denied Farr’s petition because the children’s country of habitual residence was the United States, not Mexico. The Ninth Circuit affirmed. It observed that the habitual-residence determination ... presents a task for factfinding courts, not appellate courts, and should be judged on appeal by a clear-error review standard deferential to the factfinding court.” Monasky, 140 S. Ct. at 730. It noted that the district court found that the parents did not have a shared, settled intent to abandon the United States as their habitual residence when they moved to Mexico, pursuant to existing precedent. See Valenzuela v. Michel, 736 F.3d 1173, 1177 (9th Cir. 2013) (“In the Ninth Circuit, we look for the last shared, settled intent of the parents in an attempt to determine which country is the ‘locus of the children’s family and social development.’ ” (quoting Mozes v. Mozes, 239 F.3d 1067, 1084 (9th Cir. 2001)). However, after the district court’s decision, the Supreme Court held that “a child’s habitual residence depends on the totality of the circumstances specific to the case.” Monasky, 140 S. Ct. at 723. Thus, “a wide range of facts other than an actual agreement, including facts indicating that the parents have made their home in a particular place, can enable a trier to determine whether an infant’s residence in that place has the quality of being ‘habitual.’ Under the circumstances of this case, it declined to disturb the judgment below.
The district court’s very thorough findings enabled it to conclude that, under the totality of the circumstances, the children’s habitual residence was the United States. For example, the district court found that Kendrick credibly testified that she viewed the move as temporary and believed the family would remain in Mexico for three to five years.1 The court also relied on Kendrick’s repeated requests, in email exchanges and in conversations secretly recorded by Farr, to return to the United States. The court found “most telling” a January 2017 email exchange, in which Kendrick described Houston, Texas, as their home and permanent residence, and, rather than dispute the characterization, Farr sought to postpone deciding when the move would occur. A December 2016 email by Farr also supports the district court’s finding. In this email, Farr detailed a “plan of action” for their return to the United States, setting forth decisions they needed to make “very soon,” such as which United States city they would move to. The record also contained March 2016 text message exchanges in which Kendrick expressed uncertainty about whether they would stay in Mexico, writing, for example, that it was difficult for the family to settle in Mexico and make friends because “we don’t know month to month if we’ll be here or not.” Other circumstances the court relied on include the following: Farr, Kendrick, and the children are United States citizens; Farr’s sister testified that Farr’s job in Mexico was “indefinite” and “temporary”; Kendrick’s and the children’s temporary visas expired in August 2017; Farr made seven trips to the United States between August 2015 and August 2018; all of Kendrick’s and most of Farr’s extended family members lived in the United States; and Farr maintained an American bank account and American automobile insurance while living in Mexico. In addition, the court noted that the children were less than a year old when they moved to Mexico, only three years old when they returned to the United States, did not speak Spanish, and did not attend school in Mexico. The totality of the circumstances supported the district court’s finding that the children’s habitual residence was the United States, not Mexico. For the reasons articulated in Monasky, it concluded that it was not necessary to remand for the district court to consider the evidence under the new standard announced by Monasky.
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