Tsuruta v Tsuruta, 2022 WL 4299814( E.D. Missouri, 2022)
[Japan] [Petition granted] [Habitual residence] [Grave risk of
harm not established][Consent or acquiescence not established]
In Tsuruta v Tsuruta, 2022
WL 4299814( E.D. Missouri, 2022) the Petitioner demonstrated,
by a preponderance of the evidence, that Japan was the habitual residence of
L.T. immediately prior to her removal from Japan on October 15, 2021. There was
significant evidence that L.T. acclimatized to Japan during her time there. Although
the evidence regarding the intentions of L.T.’s parents was conflicting, it
generally supported a finding that the parents had the settled purpose of
creating a home in Japan, perhaps not forever, but for a significant period of
time.
As of the
time L.T. was removed from Japan, L.T.’s place of habitual residence was Japan.
The burden thus shifted to Respondent to establish an affirmative defense to
L.T.’s prompt return.
In
her Answer, Respondent asserted two affirmative defenses: (1) that returning
L.T. to Japan would expose L.T. to a grave risk of physical or psychological
harm; and (2) that Petitioner consented to and acquiesced in Respondent’s
retaining L.T. in the United States. In
her Answer, Respondent alleged that Petitioner had “abused, isolated,
controlled, and assaulted Respondent and the Minor Child, both physically and
verbally,” and that “[t]he Minor Child has expressed fear of Petitioner and is
afraid of further harm at the hands of Petitioner.” Respondent also alleged
that she and the child were held in Japan against their will for twenty months,
and that Petitioner “told Respondent that if she ever tried to leave
Petitioner’s control, he would kill her.” When she testified at trial,
Respondent offered no evidence in support of most of these allegations. The
Court found no evidence, let alone clear and convincing evidence, that
returning L.T. to Japan would subject L.T. to a grave risk of physical or
psychological harm. In her Answer, Respondent alleged that prior
to leaving Japan, she informed Petitioner of her intent to come home to the
United States, that Petitioner was aware at all times that Respondent had left
Japan with the child for the United States and was in continuous contact with
Respondent; and that Petitioner did not make any effort to secure the return of
the child until 180 days had passed after the removal and until over 150 days
after Respondent filed divorce proceedings. Respondent did not address this
defense in her trial brief or in the proposed memorandum opinion she filed
after trial. Based on the evidence presented at trial, the Court found that
Respondent had not demonstrated, by a preponderance of the evidence, either
that Petitioner consented to the removal of L.T. before it occurred or that
Petitioner acquiesced in the removal after it occurred.
