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Quinn v. Quinn

United States District Court, W.D. Missouri, Southwestern Division

June 18, 2019

SAORI QUINN, Petitioner,
v.
JUSTIN LEVI QUINN, Respondent.

          ORDER

          ROSEANN A. KETCHMARK, JUDGE.

         On 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. 21.)

         On 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 immediately.

         Background

         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.

         Petitioner 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.

         Legal Standard

         This 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).

         To 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).

         Petitioner 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 applies”).

         Discussion

         This 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 Japan.

         I. Elements

         1. ...


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