United States District Court, W.D. Missouri, Southwestern Division
ROSEANN A. KETCHMARK, JUDGE.
February 22, 2019, the Court held an ex parte telephone
conference concerning Petitioner's Motion. (Doc. 7.) At
the conference, the following temporary relief was granted:
(1) Respondent was ordered to not remove Petitioner and
Respondent's minor biological child (“the
Child”) from the Western District of Missouri pending
resolution of this matter; (2) Respondent was ordered to
surrender the Child's passport pending resolution of this
matter; (3) the Court set a hearing for March 1, 2019, in
Springfield, Missouri, to decide whether the Child should be
returned to Japan, and (4) Respondent was directed to show
cause at the hearing on March 1, 2019, why the Child should
not be returned to Japan. (Doc. 7.) A return of service of
the Complaint and the Notice of Hearing was filed on February
25, 2019. (Docs. 8, 9.) On March 1, 2019, the Court granted
the parties' joint motion to continue the hearing. (Doc.
18.) The hearing was rescheduled for March 21, 2019. (Doc.
March 21, 2019, a trial of this action on the merits was
held. (Doc. 33.) Petitioner's counsel appeared in person,
and Petitioner appeared in person. Respondent's counsel
appeared in person, and Respondent appeared in person. The
trial of the action did not conclude on Mach 21, 2019, and
was continued to June 18, 2019. (Doc. 46.) On June 18, 2019,
the trial of the action resumed. Both parties presented
expert testimony as to Petitioner's mental state and
ability to care for the Child. Petitioner's counsel
appeared in person, and Petitioner appeared in person.
Respondent's counsel appeared in person, and Respondent
appeared in person. After careful consideration of the
evidence and for the reasons below, the Court finds, by a
preponderance of the evidence, that Respondent has wrongfully
retained custody of the Child since August 2018; the Child
currently resides with Respondent in Mount Vernon, Missouri;
and the Child shall be returned to Japan with Petitioner
filed her Verified Complaint (Doc. 1) for the return of her
son pursuant to the International Child Abduction Remedies
Act. (“ICARA”), 22 U.S.C. § 9001, et.
seq. Based on the facts alleged in the Verified
Complaint and testimony elicited at the hearing (doc. 1), the
Court makes the following findings: Petitioner and Respondent
were married in Japan on September 5, 2014, although
Respondent has recently indicated to Petitioner that he
intends to file for divorce. Petitioner and Respondent lived
together in Japan from September 2013 through May 2018,
thereafter, Respondent returned to the United States.
Petitioner and Respondent are the biological parents of the
Child, who was born in Japan in April 2014. Petitioner
currently resides in Tokyo, Japan. Respondent currently
resides in Mount Vernon, Missouri.
and the Child came to the United States and the Western
District of Missouri to visit Respondent in August 2018. On
October 15, 2018, Petitioner returned to Japan without the
Child for a medical procedure. At that time, Respondent
agreed to send the Child back to Japan on November 6, 2018;
however, Respondent failed to return the Child to Petitioner
in Japan on November 6, 2018, and at any point thereafter.
Court has jurisdiction over this matter pursuant to the ICARA
and the Hague Convention. The purpose of the Hague Convention
and ICARA is to “deter parents who are dissatisfied
with current custodial arrangements from abducting their
children and seeking a more favorable custody ruling in
another country.” Navani v. Shahani, 496 F.3d
1121, 1124 (10th Cir. 2007). “[A] primary purpose of
the Convention  [is] to restore the status quo ante and to
deter parents from crossing international boundaries in
search of a more sympathetic court.” Rydder v.
Rydder, 49 F.3d 369, 372 (8th Cir. 1995). However, the
Hague Convention provides no substantive rights and does not
allow the court in which a Hague Convention action is filed
to consider the merits of underlying child custody issues.
Id. at 372. ICARA specifically “empower[s]
courts in the United States to determine only rights under
the Convention and not the merits of any underlying child
custody claims.” 22 U.S.C. § 9001(b)(4).
obtain the relief sought in her Verified Complaint,
Petitioner must prove the following by a preponderance of the
evidence: (1) the Child was a habitual resident of Japan at
the time the Child was wrongfully retained by Respondent; (2)
the Child was wrongfully retained in violation of
Petitioner's custody rights under Japanese law; and (3)
Petitioner was exercising her custody rights over the Child
at the time the Child was wrongfully retained. 22 U.S.C.
§ 9003(e)(1)(A). The petitioner has the burden to prove
that the child has been “wrongfully removed or
retained” from the child's “habitual
residence.” 22 U.S.C. § 9003(e)(1)(A); Hague
Convention, art. 3. See also McCubbin v. McCubbin,
2006 Dist. LEXIS 43890, at *10 (W.D. Mo. June 28, 2006) (The
petitioner must show by a preponderance of the evidence that
a child was wrongfully in the United States and away from his
or her habitual residence).
need not provide further proof after showing the child was
removed from the habitual residence unless Respondent asserts
a defense accepted by the Hague Convention. See 22
U.S.C. § 9003(e) (“a respondent who opposes the
return of the child has the burden of establishing . . . by
clear and convincing evidence that one of the exceptions set
forth in article 13b or 20 of the Convention applies; and . .
. by a preponderance of the evidence that any other exception
set forth in article 12 or 13 of the Convention
Court has jurisdiction over this matter. ICARA provides that
state and federal courts have concurrent original
jurisdiction to consider an action filed by a foreign parent
to recover a child wrongfully removed to or retained within
the United States. 22 U.S.C. § 9003(a). The Convention
went into effect between the United States and Japan on April
1, 2014, upon Japan's accession to the Convention. The
Hague Convention applies only if the child is abducted from
one signatory nation to another. 22 U.S.C. § 9001(a)(4);
Hague Convention, Art. 1(b). Here, Petitioner alleges the
Child was wrongfully kept from his regular residence in