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Ogawa v. Kang

United States District Court, D. Utah, Central Division

May 24, 2018

TAKESHI OGAWA, Petitioner,
v.
KYONG SUN KANG, Respondent.

          MEMORANDUM DECISION AND ORDER

          DALE A. KIMBALL JUDGE

         This matter is before the court on Petitioner Takeshi Ogawa's Verified Complaint and Petition for Return of Children pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) and the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. §§ 9001 through 9011. The court held an initial hearing on the Petition on May 7, 2018. At that hearing, Ogawa was represented by John Robinson and Andrew Deiss and Kang was represented by Cory Wall. The parties filed supplemental briefing after that hearing, and the court held a supplemental evidentiary hearing to hear testimony from the parties' Japanese law experts on May 17, 2018. At the supplemental evidentiary hearing, Ogawa was represented by John Robinson and Wesley Felix, and Kang was represented by Cory Wall. At the hearing, Wall requested the opportunity to file an additional brief regarding a new case relied upon by Ogawa. The court granted the request and gave Kang until May 22, 2018 to file the brief. In addition, on May 18, 2018, the court interviewed Ogawa and Kang's two children, who are at the center of the custody dispute, in chambers with no parents or attorneys present. The interview was on the record and Mai Sanchez acted as interpreter. With the submission of Kang's final brief on May 22, 2018, the court considers the matter fully briefed and under advisement. After carefully reviewing and considering the Petition, all the briefing and materials submitted in response to the Petition, the testimony of the legal experts, and the arguments made by counsel, along with the relevant authorities on the legal issues presented, the court issues the following Memorandum Decision and Order.

         BACKGROUND

         A. General Factual Background

         Ogawa and Kang were married and lived together in Otaru City, Hokkaido, Japan. Ogawa is a Japanese national, and Kang is a South Korean national. Ogawa and Kang are the parents of twelve-year-old twins, N.O and N.O. The family lived together, mostly in Japan, until 2012. In April 2012, Kang and the twins relocated to the United States while Ogawa remained in Japan. The parties were intending to divorce at that time.

         In March 2013, Ogawa and Kang finalized their divorce by mutual agreement. Pursuant to the agreement, Kang returned the children to Japan and Ogawa's custody. Although the agreement states that Ogawa was to hand over the children to Kang on March 31, 2017, Ogawa kept the children living with him in Japan. Kang states that she made efforts with authorities in Japan to have the “hand-over” provision of the divorce agreement enforced but she received no help and was unable to have the children turned over to her. The divorce agreement also states that commencing in April 2017, Ogawa will pay 30, 000 yen for each child each month to an account designated by Kang. However, Kang alleges that Ogawa has paid nothing.

         In October 2017, the twins traveled from Japan to South Korea to celebrate a traditional Korean festival with their maternal grandparents. Ogawa intended to travel to South Korea after the festival to pick up the twins and return with them to Japan. However, Kang was in South Korea during the time of the festival and took the children back to the United States with her. Kang sent a text to Ogawa with a picture of the children and a message that the children were doing well in the United States. Kang also stated that the children were afraid to call Ogawa because they were afraid that he would come pick them up and take then to Japan, and that they would call him when they were comfortable.

         Ogawa responded to the text message with several objections. However, Kang did not respond. After several weeks, on October 23, 2017, Kang responded that the twins were very happy and doing well. She also stated that Ogawa “would have never cooperated and allowed the kids to come to the USA. I'm sorry, this is the only way I could have got them.” Kang also requested that Ogawa send various personal items of the twins to her address in Utah and provided him a new telephone number he could use to contact the twins.

         Ogawa retained counsel in Japan and filed an application for assistance under the Hague Convention with the Japanese Central Authority on November 15, 2017. The next month, the Japanese Central Authority forwarded the application to the Untied States Department of State. On December 15, 2017, the U.S. Department of State sent a letter to Kang. Kang responded to the letter stating that she would not return the children to Japan. She believes it is her right under the divorce agreement to have physical custody of the twins after the “hand over” date of March 31, 2017.

         ANALYSIS

         Ogawa filed the present action pursuant to the Hague Convention, which has been implemented in the United States by the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. §§ 9001-9010. The Hague Convention was adopted to protect children from the adverse effects of being wrongfully removed to or retained in a foreign country and to establish procedures for their return. See Ohlander v. Larson, 114 F.3d 1531, 1534 (10th Cir. 1997) (citing the Hague Convention on the Civil Aspects of International Child Abduction, Dec. 23, 1981, Preamble, 51 Fed. Reg. 10494, 10, 498 (1986)). “The Convention is meant to provide for a child's prompt return once it has been established the child has been ‘wrongfully removed' to or retained in any affiliated state.” Id. (quoting Convention, art. 1). The court's role is not to make traditional custody decisions but to determine in what jurisdiction the children should be physically located so that the proper jurisdiction can make those custody decisions. Loos v. Manuel, 651 A.2d 1077 ( N.J.Super. Ct. Ch. Div. 1994); see also Friedrich v. Friedrich, 78 F.3d 1060, 1063 (6th Cir. 1996).

         The first question the court must address is whether Kang “wrongfully removed” the children in violation of Ogawa's right of custody. Once a petitioner establishes that removal was wrongful, the child must be returned unless an exception is applicable. Abbott v. Abbott 130 S.

         Ct. 1983, 1990 (2010) (citing 42 U.S.C. § § 11603(a)); Blondin v. Dubois, 189 F.3d 240, 245 (2nd Cir. 1999); see also 42 U.S.C. § 11601(a)(4) (“Children who are wrongfully removed or retained within the meaning of the Convention are to be promptly returned unless one of the narrow exceptions set forth in the Convention applies.”). Moreover, “[e]ven where the grounds for one of these “narrow” exceptions have been established, the district court is not necessarily bound to allow the child to remain with the abducting parent.” Blondin, 189 F.3d at 246 n.4 (quoting Friedrich v. Friedrich, 78 F.3d 1060, 1067) (6th Cir. 1996) (“[A] federal district court retains, and should use when appropriate, the discretion to return a child, despite the existence of a defense, if return would further the aims of the Convention.”)).

         Petitioner bears the burden of showing by a preponderance of the evidence that the removal or retention was wrongful. ...


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