In Ogawa
v Kang, 2020 WL 119960 (Tenth Circuit, 2020) Japanese national Takeshi
Ogawa brought a Hague Convention action against his former wife, South Korean
national Kyong Kang, alleging that she wrongfully removed their twin daughters
from Japan to the United States in violation of his rights of custody and
seeking an order requiring the twins to return to Japan. The district court
denied Ogawa’s petition. The Tenth Circuit affirmed.
In 2003, Ogawa and Kang married in Japan. In 2006, Kang gave birth
to twin girls. Until 2012, the family lived together, primarily in Japan. But
in March 2013, Ogawa and Kang divorced. Married couples in Japan may
divorce by agreement without judicial involvement. And when they do, the
divorce agreement may provide the terms of any child-custody arrangements.
Ogawa and Kang’s divorce agreement provided such terms. Ogawa filed an English
translation of the Divorce Agreement with the district court. Under the heading
“the person who has parental authority,” the Divorce Agreement states that Kang
“shall obtain parental authority over” the twins, Ogawa “shall obtain custody
of” the twins, and Ogawa “shall give due consideration to the welfare of [the
twins] when exercising custody.” Under the same heading, the Divorce Agreement
also provides that Ogawa “shall hand over [the twins] to [Kang] on the last day
of March 2017[;] however, [Ogawa] shall continue to maintain the right of
custody of [the twins].” Next, under the heading “[c]hild [s]upport, etc.,” the
Divorce Agreement states that “[r]egardless of which party is entitled to
custody, [Ogawa] shall acknowledge that he is obliged to pay 30,000 yen/month
for each child for a period beginning in April 2017 until the month when [the
twins] reach 20 years of age as child support to cover actual childcare
expenses.” Finally, under the heading “[r]ight of visitation or other
contacts,” the Divorce Agreement states that “either party can visit [the
twins] once a year.”
After the divorce, the twins lived in Japan with Ogawa. But in
October 2017, the twins traveled to South Korea to visit Kang’s family. While
the twins were there, Kang took them to the United States without Ogawa’s
permission. In April 2018, Ogawa filed his Hague Convention petition in the
district court. The district court denied the petition, concluding, inter alia,
that Ogawa failed to make a prima facie showing that Kang breached his rights
of custody by bringing the twins to the United States.
The Tenth
Circuit pointed out that to make a prima facie showing of wrongful removal and
thereby obtain access to the return remedy, a petitioner must establish that
“(1) the child was habitually resident in a given state at the time of the
removal or retention; (2) the removal or retention was in breach of
petitioner’s custody rights under the laws of that state; and (3) petitioner
was exercising those rights at the time of removal or retention.” Shealy, 295 F.3d at 1122. Here, only the second element was at issue.
To establish the second element, a petitioner must demonstrate by a
preponderance of the evidence that he or she possesses rights of custody as
that term is defined in the Convention. See § 9003(e)(1)(A); Abbott, 560 U.S. at 5 (explaining that “[t]he question is whether a parent has” any
rights of custody “by reason of” parent’s rights in child’s country of habitual
residence).
The district court found that Ogawa failed to demonstrate that the
twins’ removal breached his rights of custody. In doing so, the district court
examined the Divorce Agreement and concluded that after March 31, 2017, Kang
had “full parental authority under Japanese law with the right to all
decision-making authority for the children” and Ogawa had the right to
“exercise[e] some physical custody[ ] at undetermined future dates.” Thus, it
concluded, Kang’s decision to remove the children did not violate Ogawa’s
rights of custody.
Ogawa and Kang agreed that the twins were habitually resident in
Japan at the time of their removal to the United States. Thus, to determine if
Ogawa’s rights were rights of custody, it looked to Japanese law “to determine the
content of [his] right[s].” Abbott, 560 U.S. at 10. And because the parties agreed that the
Divorce Agreement governed their custody arrangement, it determines Ogawa’s
rights under the Divorce Agreement as interpreted under Japanese law.
The terms of the Divorce Agreement provide that Kang “shall obtain
parental authority over” the twins and Ogawa “shall obtain custody of” the
twins. That same section also instructs Ogawa to “hand over” the twins to Kang
no later than March 31, 2017, but notes that he “shall continue to maintain the
right of custody” after that date. Another section requires Ogawa to begin
paying child support to Kang in April 2017, after he “hand[s] over” the twins
to Kang. Finally, the Divorce Agreement allows either parent to visit the twins
once a year, and it obligates Ogawa to purchase the plane tickets for those
visits. Ogawa argued—by relying on American legal principles of contract
interpretation—that according to the “plain meaning” of the word “custody” in
the Divorce Agreement, he “had custody rights under Japanese law.”. But it was the
Convention’s definition of rights of custody and the content of Japanese law
that guided the court, not “our somewhat different American concepts of
custody.” Furnes v. Reeves, 362 F.3d 702, 711 (11th Cir. 2004), abrogated
on other grounds by Lozano v. Montoya Alvarez, 572 U.S. 1 (2014); see also Abbott, 560 U.S. at 12 (explaining that Convention “forecloses courts
from relying on definitions of custody confined by local law usage, definitions
that may undermine recognition of custodial arrangements in other countries or
in different legal traditions”). And Ogawa did not tell the court what
“content” the word “custody” in the Divorce Agreement has under Japanese law or
how that might fit within the Convention’s definition. In contrast to
Ogawa’s undefined “custody” right, the Divorce Agreement specifically grants
Kang “parental authority.” And Japanese law delineates which rights are
included in “parental authority”: for example, under Japanese law, a parent
with “parental authority” over a child has authority to determine that child’s
“[r]esidence.” Thus, “parental authority” under Japanese law falls squarely
within part of the Hague Convention’s definition of rights of custody—a
definition that specifically includes, “in particular, the right to
determine the child’s place of residence.”. And the Divorce Agreement grants
parental authority only to Kang; it nowhere states that Ogawa also has parental
authority.
Relying on Abbott Ogawa argued “that even minimal rights ... are
nevertheless ‘rights of custody’ under the Convention.” There, the Supreme
Court held that a father had rights of custody under the Convention even though
the mother had sole custody and the father had visitation rights. See Abbott, 560 U.S. at 5–6. But critically, the father also had a ne
exeat right—which, under the relevant country’s domestic law, gave the
father “the authority to consent before the other parent may take the child to
another country.” Thus, the Supreme Court concluded in part that because the ne
exeat right gave the father “the joint ‘right to determine the child’s
place of residence,’ ” it met the definition of rights of custody under the
Convention. But here, the Divorce Agreement did not grant Ogawa a ne
exeat right. That is, the Divorce Agreement does not provide that Ogawa has
any authority to prevent Kang from taking the twins to a different
country.
The Convention also provides that rights of custody include
“rights relating to the care of the person of the child.” To determine whether
Ogawa had such rights, the Divorce Agreement, specifically provided only
Kang with parental authority. And parental authority, under Japanese law,
includes not only the authority to determine a child’s place of residence, but
also a broad collection of other rights-including, among others, the rights to
“care for and educate the child,”, to discipline the child, to handle the
child’s money, and to take legal actions on behalf of the child.
The Court pointed out that simply because Ogawa had some rights to
the twins did not automatically mean that the content of those rights amounts
to rights of custody under the Convention. For instance, the Convention itself
recognizes that not all of a parent’s rights qualify as rights of custody: it
also recognizes “rights of access.” Hague Convention, art. 5 (“ ‘[R]ights of
access’ shall include the right to take a child for a limited period of time to
a place other than the child’s habitual residence.”). A parent with only rights
of access cannot invoke the return remedy, see Abbott, 560 U.S. at 9. Thus, even if the Divorce Agreement gave Ogawa some rights,
Ogawa had to demonstrate those rights are rights of custody as defined by the
Convention. This he failed to do.
In sum, Ogawa did not carry his burden to show, by a preponderance
of the evidence, that he had rights of custody as the Convention defines them. See
§ 9003(e)(1)(A); Abbott, 560 U.S. at 5. Instead of explaining what his rights were under the Divorce
Agreement, Ogawa insisted simply that because he had some rights, no
matter what those rights actually are, their “nature and extent” is
“irrelevant.”
The Court also
rejected Ogawa’s argument that he must have some rights of custody because the
Japanese Central Authority forwarded his application for Hague Convention
assistance to the U.S. Central Authority. Ogawa’s argument stemmed not from the
terms of the Convention itself, but from provisions of Japanese law that
implemented the Convention. Ogawa argued that Japanese law requires the
Japanese Central Authority to dismiss applications under the Convention if
“[i]t is obvious that the applicant does not have the rights of custody.” Thus,
Ogawa reasoned, when the Japanese Central Authority did not dismiss his
application, it acknowledged that he had some rights of custody. However, the
Implementation Act does not state that by passing on the application,
the Japanese Central Authority has determined as a matter of law that the
applicant does have rights of custody. Further, and perhaps more
importantly, Japanese law governs whether Convention rights of custody exist,
not a foreign administrative body’s preliminary assessment of that law. See Abbott, 560 U.S. at 10, 12. It, therefore, rejected Ogawa’s argument that
he has rights of custody under the Convention simply because the Japanese
Central Authority transmitted his application to the United States.
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