Ogawa v. Kang

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS January 6, 2020

Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

TAKESHI OGAWA,

Petitioner - Appellant,

v. No. 18-4082

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),

1
Because we conclude that the twins’ removal was not wrongful, we need not
and do not address Ogawa’s assertion that the district court erred in finding the twins
objected to returning to Japan.
2
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

2
The parties agree we may rely on this translation of the Japanese civil code,
prepared by the Japanese government. See generally Civil Code (Part IV and Part V),
Japanese Law Translation Database System (Jan. 30, 2014),
http://www.japaneselawtranslation.go.jp/law/detail/?id=2252&vm=02&re=02&new=
1.
3
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 finds that the child objects to being returned and has attained an age and

degree of maturity at which it is appropriate to take account of its views.”). Ogawa

appeals.

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 Analysis

“The Hague Convention was adopted to protect children from the adverse

effects of being wrongfully removed to or retained in a foreign country and to

establish procedures for their return.” de Silva v. Pitts, 481 F.3d 1279, 1281 (10th

Cir. 2007). “The Convention’s central operating feature is the return remedy.” Abbott

v. Abbott, 560 U.S. 1, 9 (2010). The return remedy “provide[s] for a child’s prompt

return once it has been established the child has been ‘wrongfully removed’ to or

retained in” a country that is party to the Convention. de Silva, 481 F.3d at 1281

(quoting Ohlander v. Larson, 114 F.3d 1531, 1534 (10th Cir. 1997)). “A petitioner

. . . shall establish by a preponderance of the evidence . . . that the child has been

wrongfully removed or retained within the meaning of the Convention.” 22 U.S.C.

§ 9003(e)(1)(A); accord Shealy v. Shealy, 295 F.3d 1117, 1122 (10th Cir. 2002).

To make a prima facie showing of wrongful removal and thereby obtain access

to the return remedy, a petitioner must establish that “(1) the child was habitually

resident in a given state at the time of the removal or retention; (2) the removal or

retention was in breach of petitioner’s custody rights under the laws of that state; and

(3) petitioner was exercising those rights at the time of removal or retention.” Shealy,

295 F.3d at 1122. Here, only the second element is at issue. Under this element, the

removal of a child is not wrongful merely because a parent objects; instead, a

removal is wrongful only if done “in breach of rights of custody attributed to” the

parent. Hague Convention, art. 3. Thus, to establish the second element, a petitioner

must demonstrate by a preponderance of the evidence that he or she possesses rights

5
of custody as that term is defined in the Convention. See § 9003(e)(1)(A); Abbott,

560 U.S. at 5 (explaining that “[t]he question is whether a parent has” any rights of

custody “by reason of” parent’s rights in child’s country of habitual residence).

The district court found that Ogawa failed to demonstrate that the twins’

removal breached his rights of custody. In doing so, the district court examined the

Divorce Agreement and concluded that after March 31, 2017, Kang had “full parental

authority under Japanese law with the right to all decision-making authority for the

children” and Ogawa had the right to “exercise[e] some physical custody[] at

undetermined future dates.” App. 125. Thus, it concluded, Kang’s decision to remove

the children did not violate Ogawa’s rights of custody.

Ogawa challenges the district court’s ruling on two grounds. First, he argues

that it misinterpreted the Divorce Agreement and “struck a clear custody clause

completely out of the Divorce Agreement.” Aplt. Br. 17. In particular, he insists that

the district court ignored the clause that stated, “however, [Ogawa] shall continue to

maintain the right of custody.” App. 46. He further argues that “it is the existence of

custody rights—but not the substance of them—that [is] the only relevant inquiry for

the court.” Aplt. Br. 14. And because both Kang and the district court agreed that the

Divorce Agreement gave Ogawa rights of some kind, he argues that he may invoke

the return remedy even though Kang may have had “greater” rights after March 2017.

Rep. Br. 8. Second, Ogawa argues the district court erred in finding that he had no

rights of custody because the Japanese government, when it forwarded his application

6
for Hague Convention assistance to the United States, implicitly recognized that he

has such rights under Japanese law.

In evaluating Ogawa’s two arguments, we review de novo the district court’s

“conclusions regarding principles of domestic, foreign, and international law.” See

Shealy, 295 F.3d at 1121.

I. Rights of Custody

The Convention provides that rights of custody “include rights relating to the

care of the person of the child and, in particular, the right to determine the child’s

place of residence.” Hague Convention, art. 5. The kinds of rights that give rise to

rights of custody may vary from country to country and from child to child depending

on a variety of factors, including each country’s domestic law, decisions by a

country’s courts about rights relating to a particular child, or any agreements made

among parents or others about those rights. See Hague Convention, art. 3 (stating that

rights of custody “may arise in particular by operation of law or by reason of a

judicial or administrative decision, or by reason of an agreement having legal effect

under the law of” country where child was “habitually resident” at time of removal).

Here, Ogawa and Kang agree that the twins were habitually resident in Japan

at the time of their removal to the United States. Thus, to determine if Ogawa’s rights

are rights of custody, we first look to Japanese law “to determine the content of [his]

right[s].” Abbott, 560 U.S. at 10. And because the parties agree that the Divorce

Agreement governs their custody arrangement, we more specifically determine

Ogawa’s rights under the Divorce Agreement as interpreted under Japanese law. See

7
Hague Convention, art. 3 (providing that rights of custody “may arise . . . by reason

of an agreement having legal effect under the law of” country); Minpō [Civ. C.] art.

766, para. 1 (“If parents divorce by agreement, the matters of who will have custody

over a child . . . shall be determined by that agreement.”). Then, we look to the “text

and structure” of the Hague Convention—as opposed to dictionary definitions or

“traditional notions of physical custody”—to determine whether Ogawa’s rights

under the Divorce Agreement and Japanese law constitute rights of custody under the

Convention. Abbott, 560 U.S. at 10, 12 (explaining that this “approach ensures

international consistency”).

We begin with the terms of the Divorce Agreement. It provides that Kang

“shall obtain parental authority over” the twins and Ogawa “shall obtain custody of”

the twins. App. 45. That same section also instructs Ogawa to “hand over” the twins

to Kang no later than March 31, 2017, but notes that he “shall continue to maintain

the right of custody” after that date. Id. at 46. Another section requires Ogawa to

begin paying child support to Kang in April 2017, after he “hand[s] over” the twins

to Kang. Id. Finally, the Divorce Agreement allows either parent to visit the twins

once a year, and it obligates Ogawa to purchase the plane tickets for those visits.

Ogawa argues—by relying on American legal principles of contract

interpretation—that according to the “plain meaning” of the word “custody” in the

Divorce Agreement, he “had custody rights under Japanese law.” Aplt. Br. 19. But it

is the Convention’s definition of rights of custody and the content of Japanese law

that guide us, not “our somewhat different American concepts of custody.” Furnes v.

8
Reeves, 362 F.3d 702, 711 (11th Cir. 2004), abrogated on other grounds by Lozano v.

Montoya Alvarez, 572 U.S. 1 (2014); see also Abbott, 560 U.S. at 12 (explaining that

Convention “forecloses courts from relying on definitions of custody confined by

local law usage, definitions that may undermine recognition of custodial

arrangements in other countries or in different legal traditions”). And Ogawa does

not tell us what “content” the word “custody” in the Divorce Agreement has under

Japanese law or how that might fit within the Convention’s definition. Abbott, 560

U.S. at 10.

In contrast to Ogawa’s undefined “custody” right, the Divorce Agreement

specifically grants Kang “parental authority.” App. 45. And Japanese law delineates

which rights are included in “parental authority”: for example, under Japanese law, a

parent with “parental authority” over a child has authority to determine that child’s

“[r]esidence.” Minpō [Civ. C.] art. 821. Thus, “parental authority” under Japanese

law falls squarely within part of the Hague Convention’s definition of rights of

custody—a definition that specifically includes, “in particular, the right to determine

the child’s place of residence.” Hague Convention, art. 5 (emphasis added). And the

Divorce Agreement grants parental authority only to Kang; it nowhere states that

Ogawa also has parental authority.

Yet Ogawa argues “that even minimal rights . . . are nevertheless ‘rights of

custody’ under the Convention.” Rep. Br. 7. In support, he relies on Abbott. There,

the Supreme Court held that a father had rights of custody under the Convention even

though the mother had sole custody and the father had visitation rights. See Abbott,

9
560 U.S. at 5–6. But critically, the father also had a ne exeat right—which, under the

relevant country’s domestic law, gave the father “the authority to consent before the

other parent may take the child to another country.” Id. at 5. Thus, the Supreme Court

concluded in part that because the ne exeat right gave the father “the joint ‘right to

determine the child’s place of residence,’” it met the definition of rights of custody

under the Convention. Id. at 11 (quoting Hague Convention, art. 5). But here, the

Divorce Agreement did not grant Ogawa a ne exeat right. That is, the Divorce

Agreement does not provide that Ogawa has any authority to prevent Kang from

taking the twins to a different country. Cf. Abbott, 560 U.S. at 6, 10 (holding that “ne

exeat right is a right of custody under the Convention”). Thus, Abbott does not help

Ogawa.

Of course, the authority to determine a child’s place of residence is not the

only type of right that meets the Convention definition for rights of custody. The

Convention also provides that rights of custody include “rights relating to the care of

the person of the child.” Hague Convention, art. 5. To determine whether Ogawa had

such rights, we turn again to the Divorce Agreement, which specifically provided

only Kang with parental authority. And parental authority, under Japanese law,

includes not only the authority to determine a child’s place of residence, but also a

broad collection of other rights including, among others, the rights to “care for and

educate the child,” Minpō [Civ. C.] art. 820, to discipline the child, id. at art. 822, to

handle the child’s money, and to take legal actions on behalf of the child, id. at art.

824. These rights “relat[e] to the care of the person of the child.” Cf. Altamiranda

10
Vale v. Avila, 538 F.3d 581, 584, 586–87 (7th Cir. 2008) (holding that even though

mother had physical custody of child, father had rights of custody because he had

right to make decisions about child’s care, education, and property).

Despite the Divorce Agreement’s broad designation of rights to Kang, Ogawa

maintains that the word “custody” in the Divorce Agreement carries with it some of

these same rights. But Ogawa’s briefing points to nothing in Japanese law to support

his assertion that the use of the word “custody” carries with it any of the same “rights

relating to the care of the person of the child” that accompany parental authority.

Hague Convention, art. 5.

Relatedly, Ogawa argues that even if Kang’s rights were “greater” than his, a

child’s removal is wrongful “whenever the left-behind parent had any custody right.”

Rep. Br. 8 (emphasis added). But for our purposes, the contours of the right or rights

that the “left-behind” parent retains are critical: that parent must have some kind of

right that meets the Convention’s definition of rights of custody. Aplt. Br. 2. Thus,

the question at hand is not whether Kang’s rights were “greater” than Ogawa’s, Rep.

Br. 8; it is merely whether Ogawa’s rights fall within the Convention’s definition of

rights of custody.

Indeed, simply because Ogawa had some rights to the twins does not

automatically mean that the content of those rights amounts to rights of custody

under the Convention. For instance, the Convention itself recognizes that not all of a

parent’s rights qualify as rights of custody: it also recognizes “rights of access.”

Hague Convention, art. 5 (“‘[R]ights of access’ shall include the right to take a child

11
for a limited period of time to a place other than the child’s habitual residence.”).

While a parent with only rights of access cannot invoke the return remedy, see

Abbott, 560 U.S. at 9, that parent may nevertheless use other Convention mechanisms

to enforce rights of access, see, e.g., Hague Convention, art. 21 (explaining that

signatory countries must “promote the peaceful enjoyment of access rights” by

“remov[ing], as far as possible, all obstacles to the exercise of such rights” and “may

initiate or assist in . . . proceedings . . . to organiz[e] or protect[] these rights”). Thus,

even if the Divorce Agreement gave Ogawa some rights, Ogawa must nevertheless

demonstrate those rights are rights of custody as defined by the Convention. This he

fails to do.3

In sum, Ogawa has not carried his burden to show, by a preponderance of the

evidence, that he has rights of custody as the Convention defines them. See

3
Although the parties have focused their arguments on rights of custody rather
than rights of access, the content of Ogawa’s rights after the handover may well
amount to rights of access under the Convention. Under the Divorce Agreement’s
terms, Kang held the rights included in “parental authority” and Ogawa held the
rights included in “custody.” App. 45–46. The Divorce Agreement contemplated that
no later than March 31, 2017, Ogawa would “hand over” the daily physical control of
the twins to Kang and then begin paying child support. Id. at 46. After that handover,
Ogawa would “continue to maintain the right of custody,” but Kang would have daily
physical control of the twins along with the broad collection of rights that Japanese
law places in the parent with parental authority. Id.; see Minpō [Civ. C.] art. 820–22,
824 (giving examples of rights included in parental authority). The Divorce
Agreement further provides that after the handover, Ogawa would have the right to
visit the twins once per year and to communicate with the twins. In any event, we
need not and do not decide the exact nature of the rights Ogawa does have because
whatever those rights are, he has not shown that his rights after March 2017 are rights
of custody “relating to the care of the person of the child and, in particular, the right
to determine the child’s place of residence.” Hague Convention, art. 3.
12
§ 9003(e)(1)(A); Abbott, 560 U.S. at 5. Indeed, instead of explaining what his rights

are under the Divorce Agreement, Ogawa insists simply that because he has some

rights—no matter what those rights actually are—their “nature and extent” is

“irrelevant.” Rep. Br. 3. But only by understanding the nature and extent of his rights

under Japanese law can we evaluate whether the content of his rights is within the

Convention’s definition of rights of custody. See Abbott, 560 U.S. at 10. Ogawa

offers little support for the argument that his rights are Convention rights of custody,

and we find none.

II. Japanese Central Authority

Ogawa next argues that he must have some rights of custody because the

Japanese Central Authority forwarded his application for Hague Convention

assistance to the U.S. Central Authority. Under the terms of the Convention, each

signatory country must “designate a Central Authority” to assist in a child’s return.

Hague Convention, art. 6.4 One of the duties of a Central Authority is to transmit an

application for a child’s return to the country to which the child has been removed,

provided that the Central Authority “has reason to believe that the child is in another”

signatory country. Hague Convention, art. 9.

4
The United States’ Central Authority is the Department of State, see Exec.
Order No. 12648, 53 Fed. Reg. 30637, 30637 (Aug. 11, 1988); Japan’s Central
Authority is the Minister for Foreign Affairs, see Act for Implementation of the
Convention on the Civil Aspects of Int’l Child Abduction, Act No. 48 of 2013, art. 3,
http://www.japaneselawtranslation.go.jp/law/detail/?id=2159&vm=02&re=02&new=
1 (Japan) [hereinafter Implementation Act].
13
 Yet Ogawa’s argument stems not from the terms of the Convention itself, but

from provisions of Japanese law that implement the Convention. In particular, Ogawa

argues that Japanese law requires the Japanese Central Authority to dismiss

applications under the Convention if “[i]t is obvious that the applicant does not have

the rights of custody.” Aplt. Br. 21 (quoting Implementation Act, art. 7, para. 1, no.

6). Thus, Ogawa reasons, when the Japanese Central Authority did not dismiss his

application, it acknowledged that he had some rights of custody.

Ogawa overreads the Implementation Act and thus overstates the significance

of the Japanese Central Authority’s actions. The Implementation Act states that the

Japanese Central Authority “shall dismiss an application for assistance” under the

Convention if “[i]t is obvious that the applicant does not have the rights of custody.”

Implementation Act, art. 7, para. 1, no. 6 (emphasis added). But the Implementation

Act does not state that by passing on the application, the Japanese Central Authority

has determined as a matter of law that the applicant does have rights of custody.

Further, and perhaps more importantly, it is Japanese law that governs whether

Convention rights of custody exist, not a foreign administrative body’s preliminary

assessment of that law. See Abbott, 560 U.S. at 10, 12. We therefore reject Ogawa’s

argument that he has rights of custody under the Convention simply because the

Japanese Central Authority transmitted his application to the United States.

Conclusion

Because Ogawa fails to establish that his rights under the Divorce Agreement

qualify as rights of custody under the Convention, Kang’s removal of the twins to the

14
United States cannot be a breach of such rights of custody. We therefore affirm the

judgment of the district court.

15