United States District Court, D. Arizona
Dominic W. Lanza United States District Judge
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
June 12-14, 2019, the Court held an evidentiary hearing in
this matter. These findings of fact and conclusions of law
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.
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. This compressed timeline creates an array
of case-management challenges that aren't present in a
typical civil case.
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. 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
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 of Civil 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
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.)
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
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. Moreover, Rule
1101(d)(3) of the Federal Rules of Evidence 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.
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.
Background Facts And Chronology
2007, Father and Mother met in Texas. At the time, Mother had
a five-year-old child (Z.A.K.) from a previous relationship.
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
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
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.
some point in 2012, Mother and Father began living together
in Texas with K.M.K.F.
May 2014, Father and Mother got married in Texas. Soon
afterward, Mother learned she was pregnant with the Children.
February 2015, the Children were born in Texas.
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
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.
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.)
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.
February 2017, Father filed a criminal complaint (Exhibit 35)
against Mother with Mexican law enforcement authorities.
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.
July 2017, Father filed for divorce from Mother in Mexico.
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” Father.
few days later, on April 11, 2018, Father filed a criminal
complaint (Exhibit 51) against Mother, accusing her of
kidnapping the Children.
or around May 2018, Mexican government officials removed
K.M.K.F. from the custody of both Mother and Father and
placed the child in protective custody. Afterward, Father,
Mother, and K.M.K.F. were all ordered to participate in
court-ordered psychological examinations.
June 2018, the protective order was dissolved and Father was
allowed to continue exercising custody of K.M.K.F.
August 11, 2018, Mother (with assistance from her
father-in-law, Lynnwood Farr) left Mexico with the Children
and began living with the Children in Lake Havasu City,
Arizona. K.M.K.F remained in Mexico living with Father.
September 2018, a Mexican court entered a divorce decree that
dissolved Father's and Mother's marriage.
October 2018, Father married a new wife, Alejandra Rodriguez,
Facts Tending To Demonstrate Mexico Was The
Children's Habitual Residence
When moving to Mexico in August 2015, Father and Mother sold
most of their possessions, terminated the lease on their home
in the United States, shipped their remaining possessions to
Mexico, and didn't retain any possessions in storage in
the United States.
Facts Tending To Demonstrate The United States Was
The Children's Habitual Residence
Father and Mother are both citizens of the United States and
are both veterans of the United States Navy.
the time of the move, Mother viewed the relocation to Mexico
as temporary in nature. Mother credibly testified that she
believed her family would only remain in Mexico for 3-5 years
before returning to the United States. This assertion
was corroborated by an array of evidence. For example:
▪ Stephanie Farr testified the job offer to Father was
for a “temporary” position that would only last
two years. After that, there was merely a possibility
that Father might be able to transition into a different
position. There was no written employment contract.
▪ Mother began asking to move back to the United States
almost immediately after the family arrived in Mexico. Mother
testified that she made her first request to move back by
late 2015 and there were multiple email exchanges and
secretly-recorded audio recordings introduced into ...