Tribunal de Apelaciones
Estados Unidos de América
12 July 2017
Residencia habitual - art. 3 | Derechos de custodia - art. 3 | Grave riesgo - art. 13(1)(b)
Apelación desestimada, restitución ordenada
Arts 2 No. 5, 26, 27 No 1-4, 28(1) Nos 2 and 4 and (2) of the Act for Implementation of the Convention on the Civil Aspects of International Child Abduction (Law No 48 of 19 June 2013).
1 child (national of Japan and the United States) removed from the United States to Japan ― Father a United States national, mother a Japanese national ― Parents married in Japan in 2012 and lived together with the mother’s son from her previous marriage ― The family moved to the United States in 2014 ― Upon becoming pregnant, the mother went back to Japan with her son in 2015 ― Mother returned to the United States with the new-born child in 2016 ― Father petitioned for divorce and obtained a provisional ne exeat order ― Mother moved to a shelter with the child within the United States ― Father had frequent access to the child, but contact broke up after an argument between the parents ― Mother removed the child to Japan in 2016 ― Obtaining assistance of the Central Authority of Japan in 2016, Father petitioned to the Osaka Family Court for return of the child in 2017 ― Return ordered ― Appeal to the Osaka High Court dismissed and return ordered in 2017 ― Main issues: Habitual Residence of the child ― Actual exercise of rights of custody ― Grave Risk for the child.
The father is a United States national, the mother a Japanese national. They met in Japan while the father was serving for a United States military base and married in Japan in 2012. The couple lived with the mother’s son from her previous marriage in Japan.
The father returned to the United States, followed by the mother and her son in 2014. After becoming pregnant, the mother returned to Japan with her son in 2015. Despite their deteriorating relationship and agreeing on divorce, the father assisted the mother at birth in Japan, and she returned to the United States with their child in 2016.
In 2016, the father petitioned to the State Courts for divorce and obtained a provisional ne exeat order prohibiting the mother from relocating with the child out of jurisdiction. The mother obtained a domestic violence restraining order and moved to a shelter with the child. The mother effectuated consensual divorce in Japan by submitting a divorce form without the father’s consent, indicating her as the sole custodian. Although the parents had frequent contact and allowed the father regular access to the child, they broke up after an argument when he insisted on accompanying them to the shelter and the police were called as the mother ran away. The mother hid herself in a different shelter and obtained another domestic violence restraining order. Upon being informed by her attorney that the lapse of 6-month period would subject her to an imprisonment for child abduction, the mother removed the child to Japan prior to that date in 2016.
After obtaining assistance of the Central Authority of Japan in 2016, the father petitioned to the Osaka Family Court for return of the child in 2017. The judge rendered a return order, rejecting defence of the mother. The mother appealed to the Osaka High Court, without success.
After the Osaka Family Court ordered return of the child by denying defence based on grounds for refusal due to the non-exercise of rights of custody or grave risk for the child, the Osaka High Court followed this reasoning and dismissed the appeal, upholding the return order.
The Osaka High Court judges reasoned that habitual residence is a place where the person resides for a certain period of time and is determined in light of the length, purpose and other circumstances of living there. In the underlying case, since the child was only 7 months old at the time of removal to Japan in 2016 and did not have any social connection or own intention, the child’s habitual residence is determined pursuant to the intention of the care-giver. At that time, the child had spent 51 days in Japan, and 180 days in the United States. In addition, the mother once told the father that she did not have any intention to go back to Japan, and never mentioned to him her intention to return.
Although it is not excluded that the mother went back to the United States with the child in 2016 without necessarily having in mind to stay there for a longer period of time, she seems to have decided to stay in the United States at least one month after returning there. The fact that she was living in a shelter with the child does not prevent the child from obtaining a habitual residence in the United States. Thus, the judges held that the child habitually resided in the United States at the time of the removal to Japan.
According to the Osaka High Court judges, the mother asserted that the father was not exercising rights of custody at the time of the removal of the child to Japan. However, given the fact that the parents were steadily in touch to organize access of the father to the child and the father frequently saw the child including a two-nights overnight stay, it was obvious that rights of custody were jointly exercised by the parents at that time.
The Osaka High Court judges opined that “grave risk for the child” as a ground for refusal of return of the child (Art. 28 (1) No. 4 of the Act) means that there is grave risk of placing the child in an intolerable situation, taking the entire circumstances into consideration, including the factors indicated under Art. 28 (2) of the Act. The mother asserted that (i) the father became furious and pointed a gun to her head in 2014, (ii) he threw a heavy box with books and clothes to her in 2015, and (iii) he sought to run her over by car while she was trying to escape with the child. However, there is no objective evidence to support the alleged facts of (i) and (ii) as has been contended by the mother. As for (iii), there was indeed an argument between the parents when the father wanted to accompany the mother and the child to the shelter and police was called. Yet, no accurate evidence has been submitted to ascertain the fact as described in (iii). Thus, the judges concluded that there was no grave risk that the child be exposed to serious harm by being returned to the United States.
Author: Prof. Yuko Nishitani