Farr v. Kendrick

Michael Abraham Farr, Petitioner, v. Bonnie Jeanene Kendrick, Respondent.

No. CV-19-08127-PCT-DWL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

June 21, 2019

ORDER

INTRODUCTION

Michael Abraham Farr ("Father") and Bonnie Jeanene Kendrick ("Mother") are the parents of minor children E.G.F. and E.C.F., who are twins (collectively, "the Children"). On April 29, 2019, Father filed a petition under the International Child Abduction Remedies Act ("ICARA"), 22 U.S.C. § 9001 et seq., which implements the provisions of the Hague Convention on the Civil Aspects of International Child Abduction ("the Convention"). (Doc. 1.) The petition alleges that, in August 2018, Mother improperly removed the Children from Mexico and took them to live with her in Arizona. The petition seeks, among other things, "[a] final judgment and order in [Father's] favor directing a prompt return of the minor children . . . to their habitual residence of Mexico." (Id. at 14.)

Between June 12-14, 2019, the Court held an evidentiary hearing in this matter. These findings of fact and conclusions of law follow.

As the Ninth Circuit has observed, "[t]hese cases are always heart-wrenching, and there is inevitably one party who is crushed by the outcome." Holder v. Holder, 392 F.3d 1009, 1023 (9th Cir. 2004). That observation certainly holds true here. As explained below, the Court concludes Father is not entitled to relief for two independent reasons: (1) the Children's country of "habitual residence" was and is the United States, not Mexico; and (2) returning the Children would create a "grave risk" of physical or psychological harm.

PROCEDURAL BACKGROUND

District courts have jurisdiction under 22 U.S.C. § 9003(a) over ICARA proceedings. Such proceedings must be conducted on an expedited basis and should, at least as an aspirational matter, be completed within six weeks of when the petition was filed.¹ This compressed timeline creates an array of case-management challenges that aren't present in a typical civil case.

In recognition of these challenges, the Ninth Circuit has stated that district courts should "'use the most speedy procedures'" available when adjudicating ICARA claims. Holder, 392 F.3d at 1023 (citation omitted). Similarly, 22 U.S.C. § 9003(d) provides that a court presiding over an ICARA action "shall decide the case in accordance with the Convention" and Article 2 of the Convention instructs courts to "use the most expeditious procedures available" to implement the objects of the Convention.² Given this backdrop, the Court concluded it was not required to strictly comply with the Federal Rules of Civil Procedure or the Federal Rules of Evidence when conducting the proceedings in this case. Instead, the Court utilized procedures that were, in its view, best suited to achieve a fair, expeditious, and just outcome.

For example, both Father and Mother wished to—and were ultimately allowed to—present expert testimony. The default rule under Rule 26(a)(2)(D) of the Federal Rules ofCivil Procedure is that all expert disclosures must be made "at least 90 days before the date set for trial." Additionally, Rule 26(b)(4)(A) provides that, in general, the opposing party has the right to conduct a pre-trial deposition of "any person who has been identified as an expert whose opinions may be presented at trial." It would be extremely difficult, if not impossible, to comply with these requirements in an ICARA case. Accordingly, the Court did not require Mother and Father to strictly comply with these rules.

The Court also allowed both sides to introduce expert testimony without making a threshold determination as to whether each expert's opinions met the standards for admissibility under Rules 702-704 of the Rules of Evidence. In the Court's view, this was the "most speedy" and "most expeditious" procedure in light of the Court's role as the ultimate fact-finder—dubious expert opinions could simply be disregarded or discounted. (Indeed, as discussed infra, the Court assigned little weight to the experts' opinions.)

The Court also acted with an eye toward expeditious resolution when applying Rule 43(a) of the Federal Rules of Civil Procedure, which provides that witness testimony ordinarily "must be taken in open court" but also provides that "[f]or good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location." Here, the Court determined that good cause and compelling circumstances were present, so it allowed both parties to present telephonic testimony from certain witnesses located outside the United States and/or outside the Court's subpoena power. The Court also arranged for a Spanish-speaking interpreter to be present, at no expense to Father (who is proceeding pro se), to translate the telephonic testimony of some of Father's witnesses.

Finally, during the hearing itself, the Court did not strictly apply the Federal Rules of Evidence when deciding what evidence to admit. The law requires courts in ICARA cases to apply a relaxed standard when it comes to questions of authenticity and taking judicial notice of foreign law.³ Moreover, Rule 1101(d)(3) of the Federal Rules ofEvidence provides that the Rules of Evidence "do not apply" to "miscellaneous proceedings such as . . . extradition and rendition," and an ICARA proceeding is—in the Court's view—similar to an extradition proceeding. For these reasons, coupled with Father's status as a pro se litigant, the Court concluded the "most speedy" and "most expeditious" procedure would be to apply a relaxed admissibility standard during the hearing and then discount the evidentiary value of any dubious evidence during the fact-finding process. If anything, this approach benefited Father, who was allowed to introduce an array of documentary evidence and testimony whose admissibility might have been questionable under a strict application of the Rules of Evidence.

FINDINGS OF FACT

The Court's findings of fact are set forth below. The findings are divided into four sections. First, the Court has set forth the background facts and chronology concerning Mother and Father's relationship, their move to Mexico with the Children in August 2015, and Mother's removal of the Children to the United States in August 2018. Second, the Court has made findings concerning facts that bear upon whether the Children's "habitual residence" should be considered Mexico or the United States. Third, the Court has made findings concerning facts that bear upon whether the Children would be exposed to a "grave risk" of harm if returned to Father's custody in Mexico. Fourth, in an abundance of caution, the Court has identified some of the incidents that were the subject of significant discussion during the evidentiary hearing but which the Court views as immaterial to the legal issues before it. The Court has also identified some of the witness testimony that it deemed not credible or otherwise entitled to little evidentiary weight.

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I. Background Facts And Chronology

1. In 2007, Father and Mother met in Texas. At the time, Mother had a five-year-old child (Z.A.K.) from a previous relationship.

2. In 2009, Mother became pregnant with Father's child. However, by the time the child (a boy named K.M.K.F.) was born in December 2009, the couple had separated, with Father living in Mexico and Mother living in the United States.⁴

3. In 2011, Father was hospitalized in Texas due to drug-induced "psychosis," which was caused, at least in part, by Father's recurrent use of illegal hallucinogenic drugs.

4. Following this incident, Father received assistance from his cousin, Jon Farr, who encouraged Father to stop using drugs and also encouraged Father to become more religious. Father's increasing religious devotion resulted in tension between Father and certain members of his family—in particular, his father Lynnwood Farr, his brother Paul Farr, and his sister Stephanie Farr, all of whom came to view Father's methods for disciplining the Children (which are rooted, in part, in Father's religious beliefs) as abusive and inappropriate.

5. At some point in 2012, Mother and Father began living together in Texas with K.M.K.F.

6. In May 2014, Father and Mother got married in Texas. Soon afterward, Mother learned she was pregnant with the Children.

7. In February 2015, the Children were born in Texas.

8. In August 2015, Mother, Father, Z.A.K., K.M.K.F, and the Children moved to Mexico so Father could pursue a job opportunity with a company owned by his sister, Stephanie Farr.

9. In October 2016, Mother took a trip to Texas to visit family members. During this trip, Father had a second "psychosis" episode that required medical care. This episode, like the one before it, was caused by Father's use of illicit drugs.⁵

10. In late November or early December 2016, Mother contacted a representative from the United States Consulate to seek assistance in returning to the United States with the Children. (Exhibit 135.)

11. In January 2017, Mother and Father separated and began living in different residences in Mexico. Following the separation, Mother and Father shared joint custody of the Children.

12. In February 2017, Father filed a criminal complaint (Exhibit 35) against Mother with Mexican law enforcement authorities.

13. In April 2017, Mother was involved in an automobile accident. While she recovered, Father took care of the Children with the assistance of a nanny. After Mother recovered, she and Father resumed their shared custody schedule.

14. In July 2017, Father filed for divorce from Mother in Mexico.

15. In April 2018, Mother filed a criminal complaint (Exhibit 94) against Father with Mexican law enforcement authorities, which resulted in the entry of a protective order against Father. Among other things, Mother asserted in this complaint that "violence physical, emotional and economic [had been] exerted on me by" Fath...