Recherche de décisions

The father was a United States national and the mother was a Japanese national. The parents married in 2014 and resided in Japan. Their two sons were born in Japan in 2016 and 2017, respectively. In 2018, the entire family moved to California, the United States. By September 2022, the mother started to seek a divorce, but the father refused. On 26 December 2022, the mother took both children to Japan.

The father insisted the children be returned to the United States and reiterated not to agree to divorce. However, the mother alleged that they entered a divorce agreement on 28 November 2022, granting the mother sole parental authority and obliging the father to pay 2000 USD monthly as child support. The mother declared a consensual divorce at the Municipal Office in Japan on 2 February 2023, while the father petitioned the Family Court to confirm its nullity around 21 April 2023. The father paid child support from January until August 2023, but far less in amount and frequency than what was indicated in the said divorce agreement.

After obtaining assistance from the Central Authority of Japan, the father petitioned to the Osaka Family Court on 17 August 2023 for the return of the children. The disputed points were whether the father had consented to the children’s move to Japan, and whether there was a grave risk for the children to be returned to the United States. The Osaka Family Court ordered the return of the children on 6 October 2023. On 16 January 2024, the Court of Appeal in California granted sole physical custody to the father to reside with the children and only visitation to the mother.

The Osaka Family Court ordered the return of the children, on the grounds that the father did not consent to the retention of the children and there was no grave risk for the children to be returned.

Consent - Art. 13(1)(a)

According to the Osaka High Court, consent in the sense of Art. 28(1) No. 3 of the Implementation Act (Art. 13(1)(a) of the 1980 Convention) amounts to the applicant giving up the right to claim the return of the children. Thus, the applicant must have agreed that the children would reside in Japan for a significant period of time and not for a temporary stay. In the underlying case, the Court found no evidence supporting the mother’s allegation that the father had signed the divorce agreement or the divorce form, or that the father had paid child support to abide by the divorce agreement. In the Court’s view, the facts instead indicated that the father was opposed to divorce and consistently demanded the return of the children. Nor could it be discerned that the father agreed to the children’s temporary stay in Japan. Thus, the Court concluded there was no consent in the sense of Art. 28(1) No. 3 of the Implementation Act.

Grave Risk - Art. 13(1)(b)

The Osaka High Court further considered the mother’s allegation that the father was an alcoholic and would shout or become verbally violent, causing fear to the children. After examining the facts including the father’s work record and an accident report from the United States authority, however, the Court concluded that there was no evidence supporting the mother’s allegation about the father’s alcoholism or verbal violence. The Court also mentioned that the Court of Appeal in California confirmed the appropriateness of the father’s custody.

As a result, the Osaka High Court dismissed the appeal and ordered the return of the children to the United States. 

Author: Prof. Yuko Nishitani