Kelly v. Turner

── Kelly v. Turner ── Court: Court of Appeals for the Ninth Circuit Date: May 05, 2026 Category: General NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 5 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT TIMOTHY R. KELLY, No. 25-3638 D.C. No. Petitioner - Appellant, 3:25-cv-00247-SI v. MEMORANDUM* CHRISTINA ASHLEY TURNER, FKA: Christina Ashley Hurlbert, Respondent - Appellee. Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding Submitted April 30, 2026** Before: N.R. SMITH, BUMATAY, and H.A. THOMAS, Circuit Judges. Plaintiff-Appellant Timothy Kelly appeals 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 Hague Convention). We have * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). jurisdiction under 28 U.S.C. § 1291 and affirm. 1. Kelly contends that the district court “clearly erred by concluding that Mexico was not the child’s habitual residence.” But, to the contrary, the district court “assumed without deciding that Kelly [met] his burden to show” that MKK’s “habitual residence was Mexico and that [Christina Turner] violated Kelly’s custody rights under Mexico’s law.” 2. The district court committed no error in its application of the grave risk defense determination. We review the district court’s findings of fact for clear error and its conclusions of law de novo. Oakland Bulk & Oversized Terminal, LLC v. City of Oakland, 960 F.3d 603, 612 (9th Cir. 2020). The district court applied the correct legal standard, requiring “[t]he party opposing return of the children” to “prov[e] the ultimate Article 13(b) exception issue by clear and convincing evidence.” Colchester v. Lazaro, 16 F.4th 712, 718 (9th Cir. 2021). And it based its conclusion that the grave risk exception applied on multiple factual findings supported by evidence that Kelly’s propensity to rage and abuse towards Turner harmed MKK. See id., 16 F.4th at 717. 3. The district court did not commit clear error in its consideration of protective measures to facilitate safe return. Kelly raises three potential ameliorative measures for the first time on this appeal. But a “district court reasonably may decline to consider ameliorative measures that have not been raised by the parties[.]” 2 25-3638 Golan v. Saada, 596 U.S. 666, 682 (2022). Even so, the district court did consider and reject court-ordered attendance by Kelly in anger management classes as a potential ameliorative measure after Kelly raised it in redirect testimony. And the district court concluded that Kelly wouldn’t comply with any court ordered measures given his history of “disregard for judicial and other authority.” See id. (a district court need not consider “unworkable” ameliorative measures). 4. Kelly contends that the district court violated his due process rights by applying “relaxed evidentiary standards” when it received the parties’ offered exhibits. But “due process is flexible and calls for such procedural protections as the particular situation demands.” Mathews v. Eldridge, 424 U.S. 319, 334 (simplified). The d