Michael Abraham Farr v. Bonnie Jeanene Kendrick

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MICHAEL ABRAHAM FARR,
Plaintiff-Appellant,
v.
BONNIE JEANENE KENDRICK,
Defendant-Appellee.
No. 19-16297
DC No. 3:19 cv-8127 DWL
MEMORANDUM
*
Appeal from the United States District Court
for the District of Arizona
Dominic Lanza, District Judge, Presiding
Argued and Submitted July 17, 2020
San Francisco, California
Before:TASHIMA and HURWITZ, Circuit Judges, and MARSHALL,
**
District Judge.

Michael Farr filed a pro se petition under the International Child Abduction
Remedies Act, 22 U.S.C. § 9001 et seq., which implements the provisions of the
Hague Convention on the Civil Aspects of International Child Abduction (the
FILED
AUG 20 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
* *
The Honorable Consuelo B. Marshall, United States District Judge for
the Central District of California, sitting by designation.

Convention). Farr sought 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,
concluding that Kendrick was not required to return the children because the
children’s country of habitual residence was the United States, not Mexico. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Under the Convention, “a child wrongfully removed from her country of
‘habitual residence’ ordinarily must be returned to that country.” Monasky v.
Taglieri, 140 S. Ct. 719, 723 (2020). Thus, “[d]etermination of ‘habitual
residence’ is ‘perhaps the most important inquiry under the Convention.’” Murphy
v. Sloan, 764 F.3d 1144, 1150 (9th Cir. 2014) (quoting Asvesta v. Petroutsas, 580
F.3d 1000, 1017 (9th Cir.2009)). “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.
The district court thoroughly and carefully reviewed the evidence and 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
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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.’” Id. at 729.
“Under the circumstances of this case, we decline to disturb the judgment
below.” Id. at 731. The district court’s very thorough findings enable us 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
3

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 contains 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.”
1
Farr raises many challenges to the court’s credibility findings, but
“[w]here, as here, findings of fact turn on credibility determinations, the findings
receive heightened deference in light of ‘the fact finder’s unique opportunity to
observe the demeanor of the witnesses.’” Valenzuela, 736 F.3d at 1176 (quoting
Newton v. Nat’l Broad. Co., 930 F.2d 662, 671 (9th Cir.1990)). We do not find
any of Farr’s arguments regarding alleged inconsistencies that undermine
Kendrick’s and other witnesses’ credibility sufficient to overturn the district
court’s credibility findings.
4

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;
2
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 live 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 supports the district court’s finding that the children’s habitual
residence was the United States, not Mexico.
For the reasons articulated in Monasky, we conclude that it is not necessary
to remand for the district court to consider the evidence under the new standard
announced by Monasky. First, the district court conducted a three-day evidentiary
hearing, considering numerous exhibits and testimony from many witnesses, and
thus “had before it all the facts relevant to the dispute.” Monasky, 140 S. Ct. at
2
Farr’s argument that the visas were being renewed as of August 2018
is unavailing. He does not indicate when he filed the application for renewal, and,
at any rate, he does not dispute that the visas expired in August 2017.
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731. Second, “[n]othing in the record suggests that the District Court would
appraise the facts differently on remand.” Id. Third, although Farr cites evidence
that he contends establishes the children’s habitual residence was Mexico, the
district court already “considered the competing facts bearing on those assertions.”
Id. Finally, “[a] remand would consume time when swift resolution is the
Convention’s objective.” Id.
The district court carefully laid out all the evidence in favor of both sides,
stated which facts it was relying on and which ones it was not, explained the
reasons for those evidentiary decisions, and explained its credibility findings. Its
findings are supported by the record.
3

AFFIRMED.
3
The district court further concluded that, even if Kendrick would
otherwise be required to return the children, an exception to the return requirement
applied, see Monasky, 140 S. Ct. at 723 (noting that the Convention recognizes that
a child’s return is not required “if the return would place her at a ‘grave risk’ of
harm or otherwise in an intolerable situation” (quoting Art. 13(b) of the
Convention)), finding that there was a grave risk that returning the children to
Mexico would expose them to physical or psychological harm. We do not address
this finding because we affirm the district court’s finding that the children’s
habitual residence was the United States.
6