Takeshi Ogawa v Kynong Sun Kang, 2018 WL 2376338 (D. Utah, 2018) [Japan] [Rights of Custody] [Petition denied]

In Takeshi Ogawa v Kynong Sun Kang, 2018 WL 2376338 (D. Utah, 2018)  Petitioner Takeshi Ogawa’ sought the ruturn of the parties twins to Japan. Ogawa and Kang were married and lived together in  Japan. Ogawa was a Japanese national, and Kang was a South Korean national. Ogawa and Kang were the parents of twelve-year-old twins, N.O and N.O. The family lived together, mostly in Japan, until 2012. In April 2012, Kang and the twins relocated to the United States while Ogawa remained in Japan. The parties were intending to divorce at that time. In March 2013, Ogawa and Kang finalized their divorce by mutual agreement. Pursuant to the agreement, Kang returned the children to Japan and Ogawa’s custody. Although the agreement stated that Ogawa was to hand over the children to Kang on March 31, 2017, Ogawa kept the children living with him in Japan. Kang stated that she made efforts with authorities in Japan to have the “hand-over” provision of the divorce agreement enforced but she received no help and was unable to have the children turned over to her. The divorce agreement also stated that commencing in April 2017, Ogawa would pay 30,000 yen for each child each month to an account designated by Kang. However, Kang alleged that Ogawa had paid nothing. In October 2017, the twins traveled from Japan to South Korea to celebrate a traditional Korean festival with their maternal grandparents. Ogawa intended to travel to South Korea after the festival to pick up the twins and return with them to Japan. However, Kang was in South Korea during the time of the festival and took the children back to the United States with her. Kang sent a text to Ogawa with a picture of the children and a message that the children were doing well in the United States. Ogawa responded to the text message with several objections. However, Kang did not respond. After several weeks, on October 23, 2017, Kang responded that the twins were very happy and doing well. She also stated that Ogawa “would have never cooperated and allowed the kids to come to the USA. I’m sorry, this is the only way I could have got them.”

After trial, the Court found that Petitioner failed to meet his burden of showing by a preponderance of the evidence that the removal of the twins was in breach of Ogawa’s custody rights under the parties’ divorce agreement. The court concluded that the only clear reading of the agreement was that Ogawa gained physical custody of the children until March 31, 2017, at which time he would deliver the children to Kang and begin paying monthly child support. There was no provision in the Agreement stating that Kang would return the children to Ogawa after she was given physical custody of the children on March 31, 2017. In addition, the agreement provided that Ogawa would pay monthly child support to Kang until the children were twenty years old. This provision clearly demonstrated that the parties intended that Kang would have the primary physical custody of the children from March 31, 2017, forward.

          In dicta, the Court applied the  “age and maturity” exception, and concluded that  even if the court had found that Ogawa had demonstrated a prima facie case, the girls wereof an appropriate age and maturity such that it was appropriate for the court to take into account their desire to stay in Utah with their mother and not to return to Japan to live with their father. The court denied  Ogawa’s petition for the return of the children under the Hague Convention.

LM v JF, 2018 WL 2171080 (Sup. Ct., 2018)[Dominican Republic] [Habitual Residence][Grave risk of harm]

In LM v JF, 2018 WL 2171080 (Sup. Ct., 2018) the Court granted the mothers Hague Convention Petition for an order directing the return of the parties son to the Dominican Republic.

The parties were never married. The Mother was a citizen of the Dominican Republic and the Father was a citizen of the United States. The parties met in 2010 in the Dominican Republic where both were enrolled in medical school. The Child was born in the Dominican Republic, was raised in the Dominican Republic and spent time each year visiting the Father’s family whom resided in Levittown, New York. Prior to the Child’s first visit to the United States the parties obtained a United States passport and United States citizenship for the Child. During a stay in New York in or about April, 2013, the parties obtained a social security card on behalf of the Child listing the Levittown, New York, address as the Child’s residence.

The Mother graduated from medical school in 2011. In August, 2014, the Mother left for Rochester, New York to begin studies for a Masters Degree while the Father remained in the Dominican Republic with the Child. The Mother visited the Child and communicated with the Child via “Skype” while in Rochester.   In August of 2015, the Father learned that the Mother had become romantically involved with another man while in Rochester, New York. The Mother completed her Master’s Degree and returned to the Dominican Republic in February, 2016. Upon her return, the Mother stated that the Father did not allow her to see the Child until four days later. She  sought the assistance of the Dominican Republic courts and the parties agreed to an “informal arrangement” where the Mother would be permitted to spend time with the Child. In March, 2016, the Mother filed documents with the authorities in the Dominican Republic to prevent the Father from leaving the Country with the Child without her consent. On March 15, 2016, there was an altercation between the parties wherein the Father alleged the Mother had pushed her way inside his home and physically lunged at him. The parties returned to court and obtained a reciprocal “order of protection.”

On October 19, 2016, both parties, while represented by counsel, appeared in court and agreed to an order wherein they would equally share time with the Child. On November 30, 2016, the Father, the Child and the Paternal Grandmother, traveled to the Father’s parent’s home in Levittown, New York, with no intention of returning. On December 5, 2016, the Father filed a custody petition in Family Court which granted the Father’s application for sole legal and residential custody of the Child upon the default of the Mother. The Mother commenced this proceeding on August 23, 2017 by Order to Show Cause seeking an Order directing the Child’s return to the Dominican Republic.

Supreme Court found that the Dominican Republic was the child’s habitual residence under the analysis established by Gitter v. Gitter, 396 F.3d 124, 133 (2d Cir. 2005) as follows: “First, the court should inquire into the shared intent of those entitled to fix the child’s residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child. Second, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents’ latest shared intent.”

Based upon the testimony the court concluded that, the Dominican Republic was the Child’s habitual residence. Although the Child enjoyed frequent visits to New York where he stayed in the home of the Father’s parents, the majority of his life was spent in the Dominican Republic. It was where his home was, where he attended preschool, where he attended church and where his medical doctors were. There is a distinction to be made between a child who goes somewhere for a temporary duration and a child permanently moving to a new location. A Child who goes somewhere for a temporary duration, such as summer camp, is not considered to have acquired a new habitual residence because “he already has an established habitual residence elsewhere and his absence from it—even from an entire summer—is not indication that he means to abandon it.” Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005) (quoting Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001). There was no evidence that the Child unequivocally acclimated to a location other than the Dominican Republic so as to allow the Court to disregard the intent of the parties. The fact that Child may have acclimated to the United States from the time he was removed on November 30, 2016 until now is not the acclimation intended under this habitual resident analysis: The change in geography must occur before the questionable removal; here, the removal precipitated the change in geography. If we were to determine that by removing Thomas from his habitual residence without Mr. Friedrich’s knowledge or consent Ms. Friedrich ‘altered’ Thomas’s habitual residence, we would render the Convention meaningless.” (Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993) Supreme Court also found that the Mother had rights of custody at the time the Father and Child left the country and she was exercising her custody rights when the Child was removed. It found that the Mother had met her burden and established by a preponderance of the evidence that the Child was wrongfully removed from his place of habitual residence.

Supreme Court noted that with regard to the grave risk of harm defense the parent opposing the Child’s return must show that the risk to the child is grave, not just serious, and the harm must be more than a potential harm. There must be a direct threat to the Child upon his return to the Dominican Republic in order for this exception to apply. The Court considered the testimony of the Father and the Paternal Grandmother regarding allegations that the Mother abused or neglected the Child and that the Dominican Republic authorities did not satisfactorily address these allegations.
The Father presented photographs of the Child depicting unclean fingernails, an ear infection, mosquito bites, scabbing, cuts, burns and rashes. The Father testified that was the condition the Child was in when he returned from the Mother’s care in 2016. The Father testified that he went to court representatives with the Child, to the police and to child protective services but that no assistance was provided to him. The Father did not provide any records of said reports. On cross examination, the Father testified that the child is considered to be hypersensitive to mosquito bites and that the scars on his body were caused by scratching scabies. He testified that the Child had only one ear infection and although he did  not know with certainty what caused it, he concluded it was the Mother’s fault. The Child’s medical records were reviewed and the Father testified that the pediatrician’s records stated that the Child was regularly brought to his office as a healthy child who was at times afflicted by allergies to insect bites. There was no mention of any burns or any child abuse. The Father testified that since November, 2017, the Child cried, screamed and begged the Father to not make him see the Mother before the Mother’s parenting time. He testified that the Child returned from visits with the Mother angry and sad. The Father also testified that he did not believe the court in the Dominican Republic did or would do anything about his concerns. However, the Father offered no credible evidence that the courts failed to act on a legitimate threat to safety of the Child. He offered no basis for this Court to conclude that the Dominican Republic authorities had not and will not act in the best interests of the Child.

The Father offered the testimony of an expert in the field of forensic evaluations and children’s mental health who never interviewed or observed the Mother. She concluded that the Child was suffering trauma due to the relationship with the Mother but testified that the cause of that trauma could not be clinically ascertained. On cross examination, the witness testified that the trauma could be because the Child was used to being with both of his parents, or it could be because he did not see the Mother, or it could be some other reason. The Court was not convinced that the Child’s reaction to the mention of the Mother was because of abuse or neglect at the hands of the Mother. The expert agreed on cross examination that while she believed the Child’s trauma related to the Mother, it could be because of the trauma of the removal or some other reason. 

The Court  found that the Child’s comfort in his current environment was not a basis for the Child to remain in the United States. Whatever re-adjustment period the Child may have to undergo in the Dominican Republic is not considered a “grave harm” under the Convention. It is well established that the “harm” set forth in the grave harm exception must be “greater than would normally be expected on taking a child away from one parent and passing him to another.” Madrigal v. Tellez, 848 F.3d 669 (5th Cir. 2017); Nunez–Escudero, 58 F.3d 374 (8th Cir. 1995).

The Court held that the Father had not established, by clear and convincing evidence, that the Child will be subjected to a grave risk of harm if he returned to the Dominican Republic or any other affirmative defense.

Done v Pichardo, 2018 WL 1930081(N.D. Georgia, 2018) [Dominican Republic] [Rights of Access] [Petition denied]

In Done v Pichardo, 2018 WL 1930081(N.D. Georgia, 2018) Petitioner, Maireni Cabral Done, and Respondent, Noemi Antonia Matos Pichardo, had two minor children while living in the Dominican Republic: L.M., who was born in 2006, and J.M., who was born in 2012. Petitioner was listed as the Children’s biological father on their birth certificates.  In 2016, Respondent decided to move to the United States and to take the Children with her. Before they left, on April 29, 2016, the Parties entered into a private agreement regarding custody and visitation in which they agreed that the Children would live with Respondent in the United States, while Petitioner would have visitation rights during summers and Christmas. In May 2016, Respondent and the Children moved to Lawrenceville, Georgia, where they resided.

          On February 22, 2018, Petitioner filed an action pursuant to the Hague Convention and ICARA, requesting that the Court enter a final judgment securing his rights of access to the children.  The district court observed that the Convention also protects a parents’ “rights of access”–or, colloquially, their visitation rights. 22 U.S.C. § 9002(7). Specifically, § 9003(b) provides: Any person seeking to initiate judicial proceedings under the Convention for the return of a child or for arrangements for organizing or securing the effective exercise of rights of access to a child may do so by commencing a civil action by filing a petition for the relief sought in any court which has jurisdiction of such action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed.

         It noted that Courts are divided on whether ICARA confers jurisdiction upon federal courts to hear access claims. According to the Fourth Circuit, it does not. Cantor v. Cohen, 442. F.3d 196 (4th Cir. 2006). Most pertinent to this case, the Fourth Circuit found persuasive “the long established precedent that federal courts are courts of limited jurisdiction and generally abstain from hearing child custody matters.”

In contrast the Second Circuit has held that ICARA does create a federal cause of action to secure parents’ exercise of their visitation rights. Ozaltin v. Ozaltin, 708 F.3d 355 (2d Cir. 2013). Ozaltin involved a father who sought the return of his children to Turkey from their mother’s care in the United States, as well as an order enforcing the visitation rights granted to him by a Turkish family court. On appeal, the Second Circuit concluded that the district court had jurisdiction under § 9003(b) to consider the father’s access claims and that the mother had to comply with the Turkish court’s visitation order. In reaching this conclusion, the court criticized the Fourth Circuit’s reasoning in Cantor, admonishing that Article 21 states that efforts to secure rights of access “may” be initiated through an application to the Central Authority, not that they “may only” be pursued that way. Id. at 373; see also id. (reading Article 29 to mean that applying to the State Department is a nonexclusive remedy for enforcing access rights). Thus, the Second Circuit concluded, “even though not required under Article 21, federal law in the United States provides an avenue for aggrieved parties to seek judicial relief directly in a federal district court or an appropriate state court.”

The district court found that the Second Circuit held, at most, that a right of access is judicially enforceable under the Convention and ICARA and includes, as a general matter, enforcement of visitation orders from foreign courts. In other words, the Second Circuit found that federal courts have jurisdiction to consider and, where appropriate, give effect to orders entered in foreign states regarding a parent’s rights of access. And it is there that this case fundamentally differs. Petitioner had no order from a Dominican Republic court granting him parenting time. Instead, Petitioner and Respondent entered into a private agreement regarding custody and visitation that both Parties agreed was unenforceable under the laws of the Dominican Republic.

          The Court found the Fourth Circuit’s decision in Cantor to be more persuasive. There, much of the court’s reasoning focused on the longstanding presumption that federal courts do not and should not engage in child custody matters. Here, Petitioner was asking the Court to create such rights. As in Cantor, the Court declined to do so. The Court held that absent a valid order from a foreign state, it lacked jurisdiction to establish, in the first instance, the Parties’ respective parental rights. The petition was dismissed without prejudice.