Kelly v. Turner

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 5, 2026
• Docket: 25-3638
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 5 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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 district court advised the parties that it would apply “relaxed rules

of evidence” based on the nature of the proceeding, citing applicable law to confirm

that Federal Rules of Evidence do not apply in a Hague Convention proceeding. See

22 U.S.C. § 9005. And neither Kelly nor Turner objected to the district court’s

relaxed evidentiary approach.

5. The district court did not abuse its discretion regarding Kelly’s evidentiary

exhibits. We review the district court’s evidentiary rulings for abuse of discretion,

and require any error to be prejudicial. Barranco v. 3D Sys. Corp., 952 F.3d 1122,

1127 (9th Cir. 2020). And we review a district court’s denial of a motion for

reconsideration for abuse of discretion. Benson v. JPMorgan Chase Bank, N.A., 673

3 25-3638 F.3d 1207, 1211 (9th Cir. 2012). The district court received all exhibits offered by

Kelly. Neither Kelly nor Turner listed the documents Kelly alleges were excluded,

“including a criminal complaint and custody filing in Rosarito” on their filed exhibit

lists. And Kelly does not specify when or how he offered these documents as

evidence during the evidentiary hearing. Moreover, in his motion for

reconsideration, Kelly offered no appropriate basis for the district court to receive

and consider these documents after entry of judgment. See Defs. of Wildlife v.

Bernal, 204 F.3d 920, 929 (9th Cir. 2000).

6. The district court’s credibility findings were not clearly erroneous. We only

reject the district court’s findings if it commits clear error, Allen v. Iranon, 283 F.3d

1070, 1076 (9th Cir. 2022), and we give “special deference” to its finding that a

witness isn’t credible, id. at 1078 n.8. The district court’s credibility findings

regarding Kelly and Turner were specific and detailed.

7. Lastly, Kelly’s arguments that he was “deprived [] of an impartial tribunal”

are meritless. The district court’s evidentiary decisions were proper. Nor did the

district court ever treat the proceeding as an “extradition proceeding.” The district

court aiding Turner to find counsel below, when Kelly himself was represented by

counsel from filing through the district court’s entry of judgment, presents no

“circumstances creating an appearance of partiality.” Liljeberg v. Health Servs.

Acquisition Corp., 486 U.S. 847, 850 (1988). Kelly challenges the district court for

4 25-3638 allowing Turner to file certain documents under seal, but he does not allege he lacked

access to them in his Opening or Reply Briefs. Kelly’s contention that “[t]he Judge’s

law clerk allegedly communicated with opposing counsel” is without citation.

Indeed, the closest match in the record to what he claims is the courtroom deputy

communicating with Turner’s counsel—a normal occurrence. Finally, Kelly’s

accusation that “[t]he Judge’s law clerk” “draft[ed] findings that mirrored [Turner’s]

submissions” is both irrelevant and manifestly untrue. Liteky v. United States, 510

U.S. 540, 555 (1994). For example, against Turner’s arguments, the district court

assumed without deciding that MKK’s habitual residence was Mexico. Kelly cannot

show he was improperly deprived of an impartial tribunal.

AFFIRMED.1

1 The motion to supplement the record on appeal (Dkt. No. 16) is DENIED.

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