In Quinn v
Quinn, 2019 WL 2518147 (W.D. Missouri, 2019) the Court found that
Respondent wrongfully retained custody
of the Child since August 2018; the Child currently resided with Respondent in
Mount Vernon, Missouri; and granted the petition for return of the Child to
Japan.
Petitioner and Respondent were
married in Japan on September 5, 2014. Petitioner and Respondent lived together
in Japan from September 2013 through May 2018, thereafter, Respondent returned
to the United States. Petitioner and Respondent were the biological parents of
the Child, who was born in Japan in April 2014. Petitioner currently resided in
Tokyo, Japan. Respondent currently resided in Mount Vernon, Missouri. Petitioner
and the Child came to the United States to visit Respondent in August 2018. On
October 15, 2018, Petitioner returned to Japan without the Child for a medical
procedure. At that time, Respondent agreed to send the Child back to Japan on
November 6, 2018; however, Respondent failed to return the Child to Petitioner
in Japan on November 6, 2018, and at any point thereafter.
The district court noted that the
Hague Convention went into effect between
the United States and Japan on April 1, 2014, upon Japan’s accession to the
Convention. The Hague Convention applies only if the child is abducted from one
signatory nation to another. 22 U.S.C. §
9001(a)(4); Hague Convention, Art. 1(b). Here, Petitioner alleged the
Child was wrongfully kept from his regular residence in Japan.
The Court observed that in order
to prevail on a petition to return a child under the Hague Convention, a
petitioner has the burden to prove, by preponderance of the evidence, that the
child has been “wrongfully removed or retained” from the child’s “habitual
residence.” Although the term “habitual residence” is not defined in the
Convention, the Eighth Circuit has found that “there is no real distinction
between habitual and ordinary residence.”. A child’s “habitual residence” is
determined at the time immediately prior to the incident alleged to constitute
a wrongful removal or retention - the country from which the child came, not
the country to which he was wrongfully removed. Silverman v.
Silverman, 338 F.3d 886, 897 (8th Cir. 2003). A parent cannot
unilaterally create a new habitual residence by wrongfully removing or
sequestering a child. Feder v.
Evans-Feder, 63 F.3d 217, 224 (3rd Cir. 1995). The determination of
habitual residence is primarily a fact-based determination and not one which is
encumbered by legal technicalities; therefore, a court must look at the facts,
the shared intentions of the parties, the history of the child’s location and
the settled nature of the family prior to the facts giving rise to the request
for return..
The
Court found that Petitioner had established by a preponderance of the evidence
that the Child was a habitual resident of Japan. Petitioner’s Complaint provided
the Child’s birth certificate showing the Child was born in Japan. The
Complaint also provided the Child’s daycare records which demonstrated the
Child attended daycare on a regular basis in Japan. Accordingly, the Court found
that the Child’s residence immediately prior to Respondent’s wrongful retention
was Japan. Petitioner proved by a preponderance of the evidence that the
Child was wrongfully retained in violation of Petitioner’s custody rights under
Japanese law. Both Petitioner and Respondent testified that Petitioner’s travel
from Japan to the United States was intended to be a temporary visit, and at
the conclusion of the visit, Petitioner and the Child would return to Japan.
The Child would resume living in Japan with Petitioner after the visit concluded.
Petitioner showed by a
preponderance of the evidence that she was exercising her custody rights over
the Child at the time of the wrongful retention.
Respondent argued the Child would
be subjected to a grave risk of harm if the Child were returned to Japan with
Petitioner. However, the Court found that Respondent had not shown by clear and
convincing evidence that the Child would be subjected to a grave risk of harm if he was
returned to Japan. Hague Convention, art. 13(b). Petitioner provided all mental
health records for the Court’s consideration. The Court reviewed these medical
records. Further, both parties presented expert testimony and lodged oral
arguments as to Petitioner’s ability to manager her diagnosis as well as care
for the Child. After reviewing the medical records, reviewing the filings
submitted by the parties, and considering the expert’s testimony, the Court
concluded that the Child would not be subject to a grave risk of harm if the
Child returned to Japan with Petitioner.
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