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.
