Background
Timothy Kelly appealed the district court’s denial of his petition for the return of his child, MKK, under the 1980 Convention on the Civil Aspects of International Child Abduction. The district court had assumed without deciding that Mexico was the child’s habitual residence but found that returning the child would pose a grave risk due to Kelly’s propensity for rage and abuse toward the mother, Christina Turner.
The court’s reasoning
The Ninth Circuit reviewed the district court’s findings of fact for clear error and conclusions of law de novo. The panel held that the district court correctly applied the clear and convincing evidence standard for the grave risk exception. The court found the district court’s factual findings regarding Kelly’s behavior were supported by evidence. Regarding ameliorative measures, the court noted that the district court reasonably declined to consider measures not raised by the parties and found Kelly’s history of disregarding authority made proposed measures unworkable. On due process and evidentiary grounds, the court found the district court properly applied relaxed rules of evidence and that Kelly failed to specify excluded documents or object to the procedures. The court also rejected claims of an impartial tribunal, finding no evidence of partiality in the judge’s actions or communications.
What it means going forward
The decision reinforces the Ninth Circuit’s deference to district courts on factual findings in Hague Convention cases involving allegations of domestic violence and abuse. It clarifies that parties must raise ameliorative measures at the district court level to preserve them for appeal.
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