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Thursday, June 20, 2019
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.