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Wednesday, March 21, 2018

Kim v Ferdinand, 2018 WL 721455 (E.D. Louisiana, 2018)[Thailand] [Habitual Residence] [Petition granted]

In Kim v Ferdinand, 2018 WL 721455 (E.D. Louisiana, 2018) the Court granted the mothers petition for the return of her children to Thailand.

 Soonhee Kim was the mother of L.J.F. (born in 2007) and A.J.F. (born in 2009) She alleged that on or before August 13, 2017, Kamau Bakari Ferdinand the children’s father, wrongfully retained them in Louisiana where they now remained.  The Mother and Father first met in Japan in 2002. In 2006, the parties married in Kawasaki, Japan.  The Mother was a citizen of the Republic of Korea, but was born in and lived most of her life in Japan. The Mother held special permanent resident status in Japan. The Mother had no immigration status in the United States. The Mother was permitted to enter the United States as a short-term visitor under the visa waiver program. The Father was a citizen of the United States. Prior to 2017, he lived in Asia for almost eighteen years. The Mother and Father both continued to work in Japan after their children’s births in 2007 and 2009. The Mother was a director and partner at a venture capital firm, and the Father was an English teacher. In December 2011, the parties jointly decided to move the family to Thailand, and resided together in Bangkok.  After the family arrived in Thailand, the Father enrolled in an educational program at a local university. The Father completed the curriculum in 2016. The Father did not work while he was attending school. He then started working as a part-time English teacher in 2016.  While in Thailand, the Mother, Father and children all held Thai visas.  From 2011 until mid-2017, their lives, as well as their children’s, centered in Bangkok, Thailand. The family leased and lived in a luxury condominium in Bangkok.

In 2016, after the family lived in Thailand for nearly five years, the parents began to experience marital discord. Eventually, the Father moved out, and rented another apartment in Bangkok. When the parents parted, they agreed on a schedule for the children to spend approximately equal time with both parents.  In 2017, the Father told the Mother he was thinking about finding a job in the United States and would be interviewing with a potential employer during a trip with the children to see their extended family in New Orleans. When the Father was planning this trip to the United States, the Mother had advised the Father that she would not agree for the children to travel to the United States unless the Father provided proof that he had purchased return plane tickets for the children to return to Thailand at the end of the vacation.  On May 5, 2017, the Father forwarded the Mother an e-mail confirmation of the children’s roundtrip ticket from Bangkok, Thailand to New Orleans, Louisiana.  The e-mail confirmation provided a departure date of June 29, 2017 from Bangkok and a return date of August 13, 2017. The children’s paternal grandfather purchased the tickets. On June 29, 2017, the children departed Thailand with the Father’s sister and arrived in New Orleans, Louisiana.  On August 13, 2017, the Father did not return the children to Thailand, and indicated to the Mother in an e-mail that he believes it was a good idea for them to stay. The Father said the children have outgrown the life Bangkok has to offer.

The district court observed that in determining the habitual residence of the children the threshold test is whether both parents intended for the child to ‘abandon the [habitual residence] left behind.’” (quoting Mozes, 239 F.3d at 1075). “Absent shared intent, ‘prior habitual residence should be deemed supplanted only where ‘the objective facts point unequivocally to this conclusion.’. When ‘the child’s initial move from an established habitual residence was clearly intended for a specific, limited duration [,]...most courts will find no change in habitual residence.’ ” Larbie, 690 F.3d at 311. Here, the Mother repeatedly asserted that she expected the children to return to Thailand after their summer visit to their grandparents’ home in New Orleans. Very telling was the fact the Father, through the grandfather, purchased round-trip tickets from New Orleans to Bangkok for the children. At trial, the Father confirmed this round-trip plan for the children:
The Court found that the shared intent of both parents was not to relocate the children from Bangkok, Thailand to New Orleans, Louisiana.  The Father contended that Thailand was never intended to be a permanent residence.  The Court found that the children’s home was built in Thailand, where the parents leased a condo, secured jobs, enrolled the children in school and extracurricular activities, and where the paternal grandparents visited them, inter alia.

Respondent further argued that the children were well adjusted in New Orleans. Perhaps this was true. But even though the children had seemingly accustomed themselves to New Orleans, with great support from their grandparents who are both accomplished medical professionals, the Fifth Circuit has cautioned courts not to equate this to establishment of habitual residence. Despite the superficial appeal of focusing primarily on the child’s contacts in the new country, in the absence of settled parental intent, courts should be slow to infer from such contacts that an earlier habitual residence has been abandoned. Mozes, 239 F.3d at 1078–79. The children’s support network in New Orleans was unrelated to the issue of determining habitual residence. 

From the facts presented at trial, the Court concluded that the Mother has established that, before the removal of the children to New Orleans, the parties had a shared and settled intent to live with the children in Thailand. The Court found the Mother had custody rights under Thai law at the time of the retention. The Mother and Father jointly had “parental power” over the children under Thai law by operation of law because they wee the natural parents of the children. Section 1567 of the Civil and Commercial Code of Thailand provides that parental power includes: (A) the right to determine the child’s place of residence; (B) the right to punish the child in a reasonable manner for disciplinary purposes; (C) the right to require the child to do such work as may be reasonable to his ability and condition in life; and (D) the right to demand the return of the child from any person who unlawfully detains the child.  Parental power under Thai law is considered a right of custody in accordance with Article 5(a) of the Hague Convention because it includes rights relating to the person of the child and to determine the child’s place of residence.  Accordingly, the Mother demonstrated by a preponderance of the evidence that she had rights of custody in Thailand under Article 5(a) of the Convention. See Bader v. Kramer, 445 F.3d 346 (4th Cir. 2006) (holding joint rights of custody are considered “rights of custody” under Article 5(a) of the Hague Convention).

           The Court also found that the Mother was exercising rights of custody in Thailand.

The Court concluded that the Mother met her burden in establishing her prima facie case for the Court to order the return of L.J.F. and A.J.F. to Thailand. It also concluded that none of the discretionary exceptions applied to the children’s return and ordered the return of L.J.F. and A.J.F. to Thailand.

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