In Kenny v Davis, Not Reported in
Fed. Rptr., 2022 WL 501625 (9th 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.
