from the United States District Court for the District of
Utah (D.C. No. 2:18-CV-00335-DAK)
Robinson, Jr. (Wesley D. Felix, with him on the briefs), of
Deiss Law, Salt Lake City, Utah, for Petitioner-Appellant.
R. Wall (Gregory B. Wall, with him on the brief), of Wall
& Wall, Salt Lake City, Utah, for Respondent-Appellee.
MATHESON, PHILLIPS, and MORITZ, Circuit Judges.
MORITZ, Circuit Judge
Hague Convention on the Civil Aspects of International Child
Abduction (the Hague Convention or the Convention) prohibits
a parent from wrongfully removing a child from one country to
another when doing so would violate another parent's
"rights of custody." Art. 3, done at the
Hague Oct. 25, 1980, T.I.A.S. No. 11670 (entered into
force in the United States July 1, 1988; entered into force
in Japan Apr. 1, 2014); see also 22 U.S.C. §
9001 (implementing Convention). Here, 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 disagreed and denied Ogawa's petition,
concluding that (1) the twins' removal to the United
States did not violate Ogawa's rights of custody and,
alternatively, (2) even if their removal was wrongful, the
twins objected to returning to Japan. Ogawa now appeals. For
the reasons discussed below, we conclude that Ogawa fails to
make a prima facie showing that he has any rights of custody
as the Convention defines them. Accordingly, we affirm the
district court's order.
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
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.
See Minpō [Civ. C.] art. 763, 766, para. 1
Ogawa and Kang's divorce agreement (the Divorce
Agreement) provides such terms. Ogawa filed an English
translation of the Divorce Agreement with the district court.
That translated Divorce Agreement is attached to this opinion
as an appendix. The parties agree the translation is
provisions of that agreement are particularly relevant here.
First, 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." App. 45-46. 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]."
Id. at 46. 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."
Id. 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." Id. at 47.
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.
April 2018, Ogawa filed his Hague Convention petition in the
district court. Before resolving the petition, the district
court conducted two hearings and heard testimony from two
witnesses who testified about the Divorce Agreement and
Japanese law. The court also interviewed each twin separately
outside the presence of Ogawa, Kang, and their lawyers.
district court denied the petition, concluding that Ogawa
failed to make a prima facie showing that Kang breached his
rights of custody by bringing the twins to the United States.
See Hague Convention, art. 3 ("The removal or
the retention of a child is to be considered wrongful where .
. . it is in breach of rights of custody attributed to a
person . . . ."). Alternatively, the district court
concluded that, even assuming Ogawa made such a prima facie
showing, the mature-child exception to a Hague Convention
petition would bar the twins' return. See Hague
Convention, art. 13 ("The judicial or administrative
authority may also refuse to order the return of the child if