Cunningham v Cunningham, 2017 WL 662020 (M.D. FL, 2017)[Japan][ Habitual residence ] [Petition granted]

In Cunningham v Cunningham, 2017 WL 662020 (M.D. FL, 2017),  Ryoko Cunningham (Mother), a citizen and resident of Japan, requested the return of her child, Y.L.C. from the United States to Japan. Respondents were Terrence Cunningham (Father) and Glenda Cunningham (Grandmother), the father and paternal grandmother of the Child. The Child lived with the Grandmother in Yulee, Florida. The Father was serving in the United States Army and stationed in Maryland, but his home of record was also Yulee, Florida. The district court granted the petition.

The Mother was born in Japan and lived her entire life in Japan aside from a three week period when she attempted to live in the United States. Prior to the Child’s birth, the Mother was living in Okinawa with her daughter and son. The Father, an American citizen, was stationed with the Army in Okinawa. In May 2014, the couple got married in Japan. The Father’s assignment in Japan was scheduled to end. Although their relationship was turbulent and troubled, the Parents made plans to move to Maryland together, with the Mother’s teenage son, and live there as a family on a permanent basis. They couple moved to the United States in April 2015 . However, after an argument, the Mother returned to Japan where the child was born.  She subsequently returned to the United States for a short time but sought to return to Japan after more arguments. Upon hearing the Mother’s demand to return to Japan and obtain a divorce, and hearing her threat to never let him see the Child, the fathers response was to ask the Army for assistance in returning the Mother to Japan

The district court observed that the difficulty with applying the usual” habitual residence” analysis in this case was  that the caselaw focused on situations in which a child’s habitual residence has changed, as opposed to the question of when or how an infant’s initial habitual residence is first established. Significantly, “courts have consistently held that a newborn’s place of birth does not automatically bestow upon that child a habitual residence.” Moreover, an infant child’s habitual residence is not automatically that of her mother. The Father contended that the Child’s habitual residence is the United States because when the couple moved to the United States in April 2015, they shared a mutual intent to remain permanently in the United States. According to the Father, even after the Mother returned to Japan, they quickly reconciled and prior to the Child’s birth agreed that as soon as the Mother and Child were able to travel, they would come to the United States to live here permanently. The Mother disputed this, saying that she wanted a divorce from the Father and only came to the United States to allow him to meet the Child.  The Court concluded that the preponderance of the evidence established that Japan is the Child’s habitual residence.

The Court dispensed with acclimatization as a useful factor. In cases involving very young children, “ ‘[a]cclimatization is an ineffectual standard by which to judge habitual residence in such circumstances because the child lacks the ability to truly acclimatize to a new environment.’ ” See Redmond v. Redmond, 724 F.3d 729, 746 (7th Cir. 2013). Like acclimatization, under the circumstances of this case, a focus on parental intent was also problematic. Here, the Parents, although still married, had separated and were living in different countries at the time of the Child’s birth.  The Parents both planned to live together as a family in the United States when they moved here in March 2015. After no more than three weeks in the United States, in a whirlwind of tempers and abuse allegations, the Mother and her teenage son returned to Japan with the Army’s assistance. The Father acknowledged that he consented to the Mother’s return to Japan. Thus, whatever his hopes had been for their future in Maryland, at that point, the Father acquiesced in the Mother’s decision to leave him and return to Japan while pregnant with the Child. Although the Father testified that he still intended for the Child to be born and raised in the United States, the Court rejected this testimony because, under the circumstances, the Father could have had no reasonable expectation that the Mother and Child would be returning to the United States. While one or both Parents may have had mixed feelings about the Mother’s departure, they both shared a settled mutual intent that she would return to Japan, pregnant with the unborn Child, indefinitely. See Ruiz, 392 F.3d at 1253. The Court found by a preponderance of the evidence that at most the Mother traveled to the United States in October 2015 in an attempt to reconcile with the Father. Both Parents understood that absent reconciliation, the Mother and Child would return to Japan. The Court found that the events of October 10, 2015, showed that the Father’s decision to keep the Child in the United States was a sudden departure from the Parents’ prior understanding. After agreeing that it was her choice whether to return to Japan, the Father changed position and tells the Mother, at his last possible opportunity, that she cannot take the Child. Based on the foregoing, the Court rejected the Father’s contention that the United States was the Child’s country of habitual residence, and found that the Mother has established by a preponderance of the evidence that the Child was habitually resident in Japan prior to the retention. 

The Court adetermined that with regard to rights of custody a showing of illegality or unlawfulness is not what the Hague Convention requires. See Ozaltin v. Ozaltin, 708 F.3d 355, 368–70 (2d Cir. 2013) (“[A] removal under the Hague Convention can still be ‘wrongful’ even if it is lawful.”) The Father presented no legal authority for the proposition that to have “breached” the Mother’s rights of custody within the meaning of the Hague Convention he must have committed acts which were “illegal” or “unlawful” under Japanese law. Significantly, the Hague Convention explicitly includes joint custody rights within its purview. See Hague Convention, art. 3(a). Thus, even if the Father’s actions were not considered “unlawful” under Japanese law, by disregarding the Mother’s jointly held rights and interfering with their normal exercise, the Father effectuated a “wrongful retention” within the meaning of the Hague Convention.  

Moreover, the Father’s reliance on the state court orders to establish that his retention was not wrongful was unavailing. Article 17 provides that “[t]he sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention.” As such, under the circumstances of this case, the existence of the state court orders had no impact on the “wrongful retention” analysis.