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Saturday, May 26, 2018

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.