Case Update: application of habitual residence using the Monasky standard
On August 20, 2020, the Ninth Circuit affirmed the U.S. District Court for the District of Arizona in Farr v. Kendrick, which had denied Mr. Farr's petition to have his children returned to Mexico using the Hague Abduction Convention.
The district court concluded that the United States, not Mexico, was the children's habitual residence, and therefore they cannot be returned to Mexico. The district court reached this conclusion prior to the Monasky v. Taglieri opinion on February 25, 2020, which now mandates courts to assess habitual residence by reviewing a totality-of-the-circumstances. Even though the district court had focused on the parents' shared desire to not abandon the United States as the children's home, the trial court gathered sufficient evidence that the Ninth Circuit was able to conclude that the United States is the habitual residence when examining all facts.
For example, both parents and children were U.S. citizens, Farr's job in Mexico was temporary, Kendrick's and the children's temporary visas had expired, Farr made seven trips to the United States between 2015 and 2018, most of both parents' families lived in the United States, and Farr maintained a U.S. bank account and U.S. automobile insurance. There was additionally a December 2016 email where Farr was detailing a plan of action to return to the United States and select the city where they would reside. There were March 2016 texts where Kendrick expressed uncertainty about the family's living situation, not knowing whether the family would still be living in Mexico month-to-month. The trial court was best suited to weigh the facts and credibility of witnesses. Therefore, the habitual residence is the United States under the Monasky standard.