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Ogawa v. Kang

United States Court of Appeals, Tenth Circuit

January 6, 2020

TAKESHI OGAWA, Petitioner - Appellant,
v.
KYONG KANG, Respondent - Appellee.

          Appeal from the United States District Court for the District of Utah (D.C. No. 2:18-CV-00335-DAK)

          John Robinson, Jr. (Wesley D. Felix, with him on the briefs), of Deiss Law, Salt Lake City, Utah, for Petitioner-Appellant.

          Cory R. Wall (Gregory B. Wall, with him on the brief), of Wall & Wall, Salt Lake City, Utah, for Respondent-Appellee.

          Before MATHESON, PHILLIPS, and MORITZ, Circuit Judges.

          MORITZ, Circuit Judge

         The 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.[1]

         Background

         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. See Minpō [Civ. C.] art. 763, 766, para. 1 (Japan), http://www.japaneselawtranslation.go.jp/law/detail/?id=2252&vm=02&re=02&new= 1.[2] 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 accurate.

         Several 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.

         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. 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.

         The 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 it ...


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