Kenny v Davis, Not Reported in Fed. Rptr., 2022 WL 501625 (9th Circuit, 2022) [Ireland][Habitual residence][Petition denied]

          In Kenny v Davis, Not Reported in Fed. Rptr., 2022 WL 501625 (9^th Circuit, 2022) Petitioner-Appellant Patrick Daniel Kenny appealed from a district court order denying his petition to have his toddler son repatriated from the United States to the Republic of Ireland for custody proceedings against Respondent-Appellee Grace-Anne Davis.

     The Ninth Circuit reviewed the district court’s legal rulings de novo and its factual findings as to the habitual residence of the child for clear error, Monasky v. Taglieri, 140 S. Ct. 719, 730 (2020), and affirmed.

     Kenny argued that the district court clearly erred in finding that Alaska was his son’s habitual residence immediately before the July 9, 2020, wrongful retention date.  He cited an out-of-circuit opinion in suggesting the relevant inquiry is “whether the parents or guardians ... shared an intent to change the child’s habitual residence. His  reasoning was inconsistent with controlling Supreme Court precedent. It is true that, because “children, especially those too young or otherwise unable to acclimate, depend on their parents as caregivers, the intentions and circumstances of caregiving parents are relevant considerations” in identification of a child’s habitual residence. Monasky, 140 S. Ct. at 727. The Supreme Court has, however, held that “[t]here are no categorical requirements for establishing a child’s habitual residence—least of all an actual-agreement for infants. By contrast, “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 [of fact] to determine whether an infant’s residence in that place has the quality of being ‘habitual.’ And this factual inquiry is guided by common sense. Kenny’s narrow focus on mutual intent misstates and unduly restricts the law. Applying these principles, the district court’s factual finding that “the place of habitual residence of the child immediately prior to July 9, 2020, was Alaska” is not clearly erroneous. Kenny’s father sold the Irish business for which Kenny was working. After Kenny, Davis, and their son traveled to Alaska, Davis began working at her mother’s business. Kenny applied for Legal Permanent Resident (LPR) status and work authorization. Davis and her mother testified to the district court that Kenny had explored working as a real estate agent in Alaska. And Davis researched Alaskan apartments where she could live with Kenny and their son after Kenny got into a fight with Davis’s brother and was allegedly told to leave his accommodations at the home of Davis’s parents. When aggregated, these facts can properly be construed as indicating that Kenny and Davis made their home in Alaska, so the district court did not clearly err in making its factual finding that Alaska was the child’s habitual residence immediately before the July 9, 2020, wrongful retention date. See Monasky, 140 S. Ct. at 729; Brnovich v. Dem. Nat’l Comm., 141 S. Ct. 2321, 2348–49 (2021) (“If the district court’s view of the evidence is plausible in light of the entire record, an appellate court may not reverse even if it is convinced that it would have weighed the evidence differently in the first instance.” (cleaned up)).

         Kenny urged the panel to reach a contrary conclusion on the grounds that the district court improperly disregarded evidence and testimony allegedly establishing that Kenny’s son was a habitual resident of Ireland at all relevant times. This discussion was inapposite. See Brnovich, 141 S. Ct. at 2349 (“Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous.”  The district court did not clearly err in finding that Kenny’s son was a habitual resident of Alaska immediately prior to the wrongful retention date. See Monasky, 140 S. Ct. at 723, 730.