Tsuruta v. Tsuruta

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

NAOTERU TSURUTA, )

)

Petitioner, )

)

v. ) Case No. 4:22-CV-00425-SPM

)

SARAH MARGARET TSURUTA, )

)

Respondent. )

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Petitioner Naoteru Tsuruta’s Verified Complaint and

Petition for Return of Child Under the Hague Convention on the Civil Aspects of International Child

Abduction (the “Hague Convention”), October 25, 1980, 1343 U.N.T.S. 22514, as implemented by

the International Child Abduction Remedies Act (“ICARA”), 42 U.S.C. § 9001 et seq. This Court has

jurisdiction over the matter pursuant to 22 U.S.C. § 9003(a) and 28 U.S.C. § 1331. The parties

consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C.

§ 636(c). (Doc. 7). The Court has held an evidentiary hearing in this matter, and the parties have

submitted post-hearing briefing. After consideration of the pleadings, testimony, exhibits, and

briefing submitted by the parties, the Court will grant Petitioner’s Complaint. The Court enters the

findings of fact and conclusions of law below in accordance with Rule 52(a) of the Federal Rules of

Civil Procedure.

I. INTRODUCTION

“The Hague Convention ‘was adopted in 1980 in response to the problem of international

child abductions during domestic disputes.’” Golan v. Saada, 142 S. Ct. 1880, 1888 (2022) (quoting

Abbott v. Abbott, 560 U.S. 1, 8 (2010)). “It is the Convention’s core premise that ‘the interests of

children . . . in matters relating to their custody’ are best served when custody decisions are made in

the child’s country of ‘habitual residence.’” Monasky v. Taglieri, 140 S. Ct. 719, 723 (2020) (quoting

Convention Preamble, Treaty Doc., at 7). “To that end, the Convention ordinarily requires the prompt

return of a child wrongfully removed or retained away from the country in which she habitually

resides.” Id. (citing Art. 12, Treaty Doc., at 9). “The removal or retention is wrongful if done in

violation of the custody laws of the child’s habitual residence.” Id.

“The principal objectives of the Convention are ‘to secure the prompt return of children

wrongfully removed to or retained in any Contracting State’ and ‘to ensure that rights of custody and

of access under the law of one Contracting State are effectively respected in the other Contracting

States.’” Barzilay v. Barzilay, 536 F.3d 844, 846 (8th Cir. 2008) (“Barzilay I”) (quoting Hague

Convention Art. 1, T.I.A.S. No. 11670). “The Hague Convention is not designed to resolve underlying

custody disputes, but rather to ensure that such disputes are adjudicated in the appropriate

jurisdiction.” Acosta v. Acosta, 725 F.3d 868, 875 (8th Cir. 2013) (internal citations omitted). “Its

‘primary purpose is to restore the status quo and deter parents from crossing international borders in

search of a more sympathetic court.’” Id. (quoting Nunez–Escudero v. Tice–Menley, 58 F.3d 374, 376

(8th Cir. 1995)).

II. PROCEDURAL BACKGROUND

Petitioner, a citizen of Japan and the father of minor child L.T., filed his Complaint on April

12, 2022. (Doc. 1). Petitioner alleged that on or around October 15, 2021, L.T.’s mother—Respondent

Sarah Margaret Tsuruta, a United States citizen—wrongfully removed L.T. from Japan and has

retained L.T. in Missouri since that date. Petitioner also alleged that L.T.’s place of habitual residence

in October 2021 was in Japan, and that at that time Petitioner was exercising his custody rights under

Japanese law. Petitioner requested that the Court enter an order returning L.T. to Japan. On May 2,

2022, Respondent filed an Answer, in which she denied the allegation that Japan was L.T.’s habitual

residence. (Doc. 8, ¶ 21). She also asserted two affirmative defenses: (1) that relocating the child to

Japan would present a grave risk of physical or psychological harm to L.T. or would otherwise place

L.T. in danger; and (2) that Petitioner consented and subsequently acquiesced to the Respondent’s

retaining L.T. in the United States. The Court held a scheduling conference pursuant to Rule 16 of

the Federal Rules of Civil Procedure, and on May 24, 2022, the Court entered a Case Management

Order setting deadlines for disclosure and discovery and setting the case for an evidentiary hearing.

(Doc. 15).

On July 25, 2022, the parties submitted their pretrial briefs, witness lists, and exhibit lists. On

August 1, 2022, the Court held a pretrial conference with counsel for the parties. On August 5, 2022,

the parties appeared with counsel for the trial. Petitioner and Respondent testified, and Respondent

presented an additional witness, Julia Hillyer. Following the trial the parties requested, and were

granted, time to request a transcript of the hearing and file post-hearing briefs. The transcript was

filed on August 15, 2022, and post-hearing briefing was completed on August 26, 2022. As such, the

matter is now ready for a ruling.

III. FINDINGS OF FACT

The Court’s findings of fact are based upon all credible evidence presented at trial, together

with reasonable inferences derived from that evidence.

A. Credibility Findings

At the hearing, the Court heard testimony from Petitioner, Respondent, and Julia Hillyer, a

licensed professional counselor. The Court also admitted Petitioner Exhibits 1-23 and Respondent

Exhibits A-M into evidence.

Petitioner and Respondent gave divergent testimonies on a variety of topics including, among

other things, the circumstances surrounding Petitioner’s relocation from the United States to the

United Kingdom, the circumstances surrounding their marriage in Japan, Respondent’s role in

Petitioner’s business, whether Respondent understood that the family’s move from the United

Kingdom to Japan in November 2018 was indefinite, and the nature of the relationship between

Petitioner, Respondent, and their daughter, L.T. Neither Petitioner nor Respondent was an entirely

credible witness. However, Petitioner’s testimony was more credible on the most salient issues. In

particular, Respondent’s suggestion that she was held against her will in Japan and needed to “escape”

was not credible when considered together with Respondent’s own testimony about her life in Japan

and other evidence presented at trial.

In making factual findings, to the extent the Court needed to resolve discrepancies between

the parties’ version of events, the Court has resolved those discrepancies in favor of the testimony

most supported by other evidence of record.

The Court found Ms. Hillyer to be a credible witness. However, the Court gave her testimony

little weight because it was based upon biased and/or incomplete information and had little or no

probative value to the issues before the Court.

B. Factual Findings

Petitioner is a Japanese citizen who came to the United States to pursue an education.

Respondent is a citizen of the United States who was born and raised in Missouri. In 2010, Respondent

was living in Miami, Florida. Petitioner met Respondent in Miami, and they became friends. Their

friendship evolved into a romantic relationship. In June 2011, they began living together in Scottsdale,

Arizona, where Peittioner was operating a luxury skincare business. Respondent took a job working

Petitioner’s business in a variety of roles. In 2013, Petitioner moved to London, and Respondent

moved back to Miami. Petitioner and Respondent’s romantic relationship continued after Petitioner

left for London, and in 2014, Respondent learned she was pregnant while visiting Petitioner in

London.

On July 20, 2015, Respondent gave birth to L.T. in Miami, Florida, and listed Petitioner as

the father on the birth certificate. When L.T. was ten months old, Respondent and L.T. moved to the

United Kingdom to live with Petitioner in London. From that point forward, until October 15, 2021,

Petitioner, Respondent, and L.T. lived together as a family either in the United Kingdom or Japan.

They visited Petitioner’s family in Japan in early 2018. While there, on March 19, 2018, Petitioner

and Respondent got married. Petitioner rented an apartment in Fujisawa in April 2018, but he later

returned to the United Kingdom.

In November 2018, Respondent, Petitioner, and L.T. moved to Fujisawa, Japan. They lived in

the apartment rented by Petitioner for about a year and then moved into a house sometime during

2020. Respondent, Petitioner, and L.T. lived as a family in Fujiswawa, Japan, until October 15, 2021.

During that time, Respondent continued to work for Petitioner’s skincare business (albeit in a more

limited capacity). Otherwise, Respondent stayed home and, together with Petitioner, took care of L.T.

Respondent had misgivings about raising L.T. in Japan. In November 2019, Respondent and

L.T. traveled to the United States to visit Respondent’s family. Three months later, in February 2020,

Respondent and L.T. voluntarily went back to Japan; Respondent testified that she did this because

she loved her husband and wanted to work on things and do the right thing.

In the year leading up to October 2021, L.T. attended school/daycare in Fujisawa. The

evidence further established that during her time in Japan, L.T. learned to speak both English and

Japanese; engaged in extracurricular activities such as horseback riding, Kumon, and martial arts;

attended family gatherings with Petitioner’s family, including dinners and birthday parties; and went

on vacations both in Japan and outside of Japan, including trips to the United States to visit

Respondent’s family.

Although she was not working outside of the home, Respondent appears to have been engaged

with Petitioner’s family and with activities of her own such as shopping and going to the gym.

Respondent was alone with L.T. a fair amount of the time, as Petitioner’s work often took him away

on business trips. Throughout that time, Respondent’s ability to communicate with friends and family

in Japan and the United States was not hampered in any way. She had access to, and frequently used,

the internet, mobile phones, a laptop and other devices.

The evidence presented does not support a finding that Respondent’s time in Japan was

transient or other than indefinite. Respondent admitted that she held herself out as someone who was

residing in a home that she considered hers, that she had a gym membership in Japan and went to the

gym two or three times a week, that she went grocery shopping in Japan twice a week, that she visited

and interacted with Petitioner’s family, and that she had an OB/GYN in Japan she saw once a year.

Between November 2018 and October 15, 2021, Respondent and Petitioner experienced

marital problems. Evidence presented demonstrated that, over time, Respondent became increasingly

unhappy about a number of things, including the dynamics between her daughter, herself, her

husband, and even the family dog. Petitioner appears to have been inconsiderate, insensitive and, at

times, dismissive of Respondent’s complaints. However, there was no evidence that Petitioner

physically or sexually abused Respondent or physically or sexually abused L.T.

Throughout 2021, Respondent become increasingly anxious about returning to the United

States. She repeatedly told Petitioner that she wanted a divorce and that she wanted to leave Japan

and return to the United States. She urged Petitioner to renew L.T.’s expired U.S. passport. Petitioner

expressed concern about Respondent and L.T. traveling given COVID restrictions. Evidence

presented demonstrated that Petitioner attempted to conceal L.T.’s expired United States passport and

Japanese passport from Respondent. Respondent, however, had possession of her own passport.

On October 15, 2021, Respondent spoke with her parents, who were in the United States. Her

parents informed her that they had been in touch with their Congresswoman, Ann Wagner.

Representative Wagner’s office provided instructions for how Respondent might obtain an emergency

passport for L.T. so that they could leave Japan. Following that conversation, Respondent went to the

family’s storage locker to search for L.T.’s U.S. passport after dropping L.T. at school. When she

found the passport, Respondent immediately reported to L.T.’s school, retrieved L.T., and took a taxi

to the U.S. Embassy. Once at the Embassy, Respondent told the diplomat she met with that she feared

for her life and for her child’s safety. She obtained an emergency passport and was directed to go

immediately to the airport. She and L.T. boarded an airplane bound for Hawaii and left Japan. L.T.

and Respondent later made their way from Hawaii to St. Charles, Missouri, where they took up

residence with Respondent’s parents.

Petitioner was unaware of Respondent’s plan to leave Japan on October 15, 2021. On the

morning of October 15, 2021, Petitioner left home for a business meeting in Tokyo. Petitioner saw

Respondent and L.T. when they left the house for L.T.’s school, however, Respondent did not tell

Petitioner that she planned to leave for the United States that day. Although Respondent traded instant

messages with Petitioner throughout the day, her messages all centered around Petitioner’s meeting

and other ordinary household matters. She never disclosed that she intended to leave for the United

States with L.T.

When Petitioner returned home on the night of October 15th, he became alarmed and

concerned that Respondent and L.T. had been kidnapped or harmed. He contacted authorities, who

initiated a search for them. Petitioner subsequently learned that Respondent and L.T. had left for the

United States. He learned that Respondent had a return flight for March 15, 2022, and based on his

discussions with Respondent and members of her family, he initially believed that Respondent and

L.T. planned to eventually return to Japan, as they had after prior trips to the United States.

On November 3, 2021, Respondent filed a Petition for Child Custody and Child Support in

the St. Charles County Circuit Court. On November 10, 2021, Respondent filed a Petition for

Dissolution of Marriage. In her discussions with Petitioner, Respondent suggested she would seek a

divorce. However, Respondent had frequently threatened divorce in the past and, during her

discussions with Petitioner in the Fall and Winter of 2021, Respondent also indicated she was

interested in reconciling with Petitioner. Petitioner expected Respondent to return to Japan with L.T.

on March 15, 2022, the date of her return ticket, but wanted them to come back earlier. As such,

Petitioner was caught off guard when he learned, in March of 2022, that Respondent had filed for

divorce and that there was a hearing in the divorce case set for April. With assistance from the

Japanese government, Petitioner obtained counsel and filed the instant action for return of his minor

child.

IV. CONCLUSIONS OF LAW

As the parties acknowlege, the United States and Japan are both signatories to the Hague

Convention.1 The only issues in dispute in this case are (1) whether Petitioner has established a prima

facie case for return of L.T. under the Hague Convenstion; and (2) whether Respondent has

established an affirmative defense that would allow the Court to decline to order L.T.’s return even if

Petitioner has established a prima facie case for return. Respondent has raised two affirmative

defenses: (a) that relocating L.T. to Japan would present a grave risk of physical or psychological

harm to L.T. or would otherwise place L.T. in danger; and (b) that Petitioner consented and

subsequently acquiesced to the Respondent’s retaining L.T. in the United States. As discussed below,

it is not entirely clear whether Respondent is still taking the position that one or both of these

affirmative defenses should apply, as she does not mention them in the proposed Memorandum

Opinion she filed following trial. Nevertheless, the Court will address the affirmative defenses.

A. Prima Facie Case for Return

“To establish a prima facie case for return of the child under the Convention, the petitioner

must show, by a preponderance of the evidence, that: (1) immediately prior to removal or retention,

the child habitually resided in another Contracting State; (2) the removal or retention was in breach

1 See https://travel.state.gov/content/travel/en/International-Parental-Child-

Abduction/abductions/hague-abduction-country-list.html (last visited September 18, 2022).

of the petitioner’s custody rights under that State’s law; and (3) the petitioner was exercising those

custody rights at the time of the removal or wrongful retention.” Custodio v. Samillan, 842 F.3d 1084,

1088 (8th Cir. 2016). “If a petitioner establishes a prima facie case, the child must be ‘promptly

returned unless one of the narrow exceptions set forth in the Convention applies.’” Id. at 1089.

(quoting 22 U.S.C. § 9001(a)(4)). The second and third elements of the prima facie case are not in

dispute. See Respondent’s Proposed Mem. Opin., Doc. 36, at 17 (“The parties do not dispute that

Petitioner had rights of custody at the time Respondent returned to the United States, nor do they

dispute that these rights were being exercised.”). The only issue in dispute with respect to the prima

facie case is whether Japan was L.T’s habitual residence immediately prior to her removal from Japan

in October 2021.

“The Hague Convention does not define the term ‘habitual residence.’” Monasky v. Taglieri,

140 S. Ct. 719, 726 (2020). Federal courts share a common understanding that “[t]he place where a

child is at home, at the time of removal or retention, ranks as the child’s habitual residence.” Id. The

determination of a child’s habitual residence is a “fact-driven inquiry” and “depends on the totality of

the circumstances specific to the case.” Id. at 723, 727. “For older children capable of acclimating to

their surroundings, courts have long recognized, facts indicating acclimatization will be highly

relevant.” Id. at 727. Facts relevant to acclimatization may include “a change in geography combined

with the passage of an appreciable period of time, age of the child, immigration status of child and

parent, academic activities, social engagements, participation in sports programs and excursions,

meaningful connections with the people and places in the child’s new country, language proficiency,

and location of personal belongings.” Id. at 727 n.3 (internal quotation marks omitted). In addition to

acclimatization, “the intentions and circumstances of caregiving parents are relevant considerations,”

especially for children too young to acclimate. Id. at 727. The Supreme Court has noted that, for

example, if “an infant lived in a country only because a caregiving parent had been coerced into

remaining there,” that circumstance “should figure in the calculus.” Id. However, “[a]n actual

agreement between the parents is not necessary to establish an infant’s habitual residence.” Id. at 723.

“No single fact . . . is dispositive across all cases.” Id. at 727.

The Eighth Circuit has identified several factors relevant to the determination of habitual

residence: “the settled purpose of the move to the new country from the child’s perspective, parental

intent regarding the move, the change in geography, the passage of time, and the acclimatization of

the child to the new country.” Barzilay v. Barzilay, 600 F.3d 912, 918 (8th Cir. 2010) (“Barzilay II”)

(quotation marks omitted). Accord Cohen v. Cohen, 858 F.3d 1150, 1153 (8th Cir. 2017). “The

‘settled purpose’ of a family’s move to a new country is a central element of the habitual residence

inquiry.” Barzilay II, 660 F.3d at 918. “This settled purpose need not be to stay in a new location

forever, but the family must have a sufficient degree of continuity to be properly described as settled.”

Cohen, 858 F.3d at 1153 (quoting Silverman v. Silverman, 338 F.3d 886, 898 (8th Cir. 2003)). Settled

purpose is determined “from the child’s perspective, although parental intent is also taken into

account.” Id. (quoting Silverman, 338 F.3d at 898). “That said, parental intent need not be completely

clear, and ‘one spouse harboring reluctance during a move does not eliminate the settled purpose from

the [child’s] perspective.’” Cohen, 858 F.3d at 1153 (quoting Silverman, 338 F.3d at 899; internal

citation omitted).

After careful consideration of the evidence presented in light of the factors set forth above, the

Court finds that Petitioner has demonstrated, by a preponderance of the evidence, that Japan was the

habitual residence of L.T. immediately prior to her removal from Japan on October 15, 2021. First,

there is significant evidence that L.T. acclimatized to Japan during her time there. There was a change

in geography combined with the passage of an appreciable period of time—L.T. moved to Japan in

November 2018 and continued to live there for almost three years before her removal, aside from a

visit to the United States for a few months from November 2019 to February 2020. L.T. attended

daycare/school in Japan for over a year immediately prior to her removal. She also participated in

sports and other extracurricular activities in Japan, including horseback riding, tennis, martial arts,

and Kumon. She attended social gatherings in Japan, including dinners and parties with Petitioner’s

family. She went on trips and vacations in Japan with her parents and with Petitioner’s family. She

spoke both Japanese and English. Although L.T. maintained contact with her mother’s family in the

United States and visited them, the preponderance of the evidence supports a finding that, from L.T.’s

perspective, “home” was in Japan, not in the United States or any other country. See, e.g., Cohen, 858

F.3d at1154 (finding the United States to be a child’s habitual residence and reasoning in part that he

had lived there for almost two years, he attended school and speech-therapy classes there, he had

friends and extended family there, and his mother had obtained employment, purchased a vehicle,

and rented an apartment there); Guzzo v. Hansen, No. 4:22-CV-15 PLC, 2022 WL 3081159, at *5

(E.D. Mo. Aug. 3, 2022) (finding Spain was the habitual residence of a child despite evidence that

the child regularly visited the United States, maintained significant family relationships in the United

States, and had stronger English than Spanish skills; reasoning in part that the child had “lived in

Spain for five years (or half of his life), spoke Spanish, and attended school, participated in

extracurricular activities, socialized with friends, and had a pediatrician in Spain”).

Second, although the evidence regarding the intentions of L.T.’s parents is conflicting, it

generally supports a finding that the parents had the settled purpose of creating a home in Japan—

perhaps not forever, but for a significant period of time. The Tsurutas have never lived together as a

family in the United States. In contrast, the Tsurutas lived together in Japan for almost three years,

where they lived in a rented apartment (and later in a house they purchased), placed their child in

daycare/school and extracurricular activities, and pursued their own business and personal interests.

See Guzzo, 2022 WL 3081159, at *5 (considering, among other factors, that “Mother and Father ‘did

what parents intent on making a new home for themselves and their child do—they [rented] a house,

pursued interests and employment, and arranged for [the child’s] . . . schooling’”) (quoting Feder v.

Evans-Feder, 63 F.3d 217, 224-25 (3d Cir. 1995)). Petitioner’s testimony and actions during the

relevant time frame consistently indicate that his intent was for the family to live in Japan, at least for

a significant period of time, for the purpose of his business. As to Respondent, despite her assertion

that she intended their travels to Japan to be temporary visits, the bulk of the evidence suggests that

she acted as if Japan was her home. She admitted that she held herself out as someone who was

residing in a home that she considered hers, she had a gym membership in Japan and went two or

three times a week, she went grocery shopping in Japan twice a week, she had an OB/GYN in Japan

she saw once a year, and her visits to the United States were short compared to the long stretches of

time she spent in Japan. Overall, the evidence supports a finding that the family was settled in Japan.

See Barzilay II, 600 F.3d at 918 (noting that the settled purpose of a family’s move “need not be to

stay in a new location forever” in order to support a finding of habitual residence; finding the United

States to be the habitual residence of the children despite evidence that it was that uncertain whether

the parents intended to remain in the United States permanently).

The Court has considered Respondent’s argument that Respondent and L.T. only remained in

Japen due to coercion by Petitioner; however, the Court finds that argument unconvincing in light of

the evidence presented. To support her claim of coercion, Respondent points to her financial

dependence on Respondent, who she claims controlled all of the family’s finances and determined

what purchases she could make; her claim that Petitioner tricked her into signing a Japanese marriage

certificate that would give him parental rights over L.T.; her claim that Petitioner confiscated L.T.’s

passport so that Respondent could not return to the United States with L.T.; and her claim that

Petitioner admitted to being motivated to “control and discipline” Respondent. Petitioner also cites

two cases that she asserts involved circumstances similar to this case. First, she relies on Tsarbopoulos

v. Tsarbopoulos, 176 F. Supp. 2d 1045 (E.D. Wash. 2001), in which the court rejected the father’s

argument that Greece was habitual residence of the children where the father had concealed

information from his wife regarding his intent to move to Greece; the father had engaged in verbal

abuse, physical abuse, and controlling behavior of the mother that was substantiated by photographs

and/or testimony of witnesses outside the family; the mother had been primarily confined to the home

in Greece by her obligations to the children and by the demands of her husband, who gave her a list

of daily tasks, punished her physically if she did not do them, and demanded to know where she was

at all times; the younger children were with their mother nearly all day, every day, in the new country,

and (with the exception of the oldest child, who went to school) had little socialization with anyone

outside the family; and the father controlled the family’s finances. Second, she relies on Ponath v.

Ponath, 829 F. Supp. 363 (D. Utah 1993), in which the court rejected the father’s argument that

Germany was the child’s habitual residence where the family had traveled to Germany on a round-

trip ticket to visit the petitioner’s family, with a scheduled return trip a month later and an indication

from the father that they would return within three months; the father had refused and prevented them

from leaving by means of verbal, emotional, and physical abuse; the mother’s clinical psychologist

found respondent’s behavior consistent with her having been verbally, emotionally, and physically

abused; and the father had been arrested in the United States for allegedly attacking his sister-in-law

in her home while attempting to see the mother and the minor child.

The Court finds these cases to be inapposite. The physical abuse, verbal abuse, and controlling

behavior that motivated the courts in both Tsarbopoulos and Ponath are simply not present here.

There is no evidence of physical abuse, violence, or threats of violence in this case. Additionally,

having considered the testimony of Petitioner and Respondent and having reviewed the text message

exchanges between the parties, the Court does not find evidence of the type of verbal abuse or

controlling behavior that would suggest that Petitioner was coerced or forced into staying in Japan.

Notably, when Respondent was asked about her allegations of verbal abuse, she described arguments

in which she participated, and she admitted that she would have considered her own statements to be

verbal abuse as well. The text exchanges submitted in the parties’ exhibits suggest a marriage with

significant argument and friction, but not a relationship of abuse or control.

Although Respondent was somewhat socially isolated due to her lack of Japanese-language

skills, there is no credible evidence that Petitioner tried to isolate Respondent or prevented

Respondent from interacting with others. She had significant free time during the day, when L.T. was

at daycare and Petitioner was at work; she freely moved around the city to shop and go to the gym

and admitted that she could make calls or do whatever she wanted; and she frequently used mobile

phones, a laptop, and other devices to communicate with friends and family in Japan and the United

States. These facts sharply distinguish the instant case from Tsarbopoulos, in which the mother’s

movements and activities strictly monitored and controlled by her husband and the mother was largely

confined to the home due to the combination of her childcare-related duties and the tasks given to her

by her husband. The Court also notes that although there was evidence that Petitioner concealed L.T.’s

passport from Respondent, Respondent always had her own passport.

Finally, Respondent’s suggestion that Respondent’s and L.T.’s presence in Japan was based

on coercion and trickery is significantly undermined by the undisputed evidence that when

Respondent did have the opportunity to take L.T. on a trip to the United States, she did not stay in the

United States, but instead voluntarily returned to Japan. In November 2019, Respondent and L.T.

traveled from Japan to Missouri, without Petitioner, and stayed with Respondent’s family. If

Respondent’s presence in Japan had been due to Petitioner’s coercion, the Court would have expected

Respondent to take that opportunity to get away from Petitioner and from Japan. Instead, Respondent

testified that she went back voluntarily in February 2020.

In sum, it appears that Respondent had mixed feelings about being in Japan and that she was,

at times, reluctant to be there. But the facts presented do not amount to coercion, and they do not

significantly undermine the other evidence suggesting that Japan was L.T.’s home and thus her

habitual residence. See Cohen, 858 F.3d at 1153 (“[O]ne spouse harboring reluctance during a move

does not eliminate the settled purpose from the [child’s] perspective.’”) (quoting Silverman, 338 F.3d

at 899; internal citation omitted); Silverman, 338 F.3d at 900 (finding that a mother’s “post-move

desire to return to the United States, and the finding by the district court that she was subject to

coercion and abuse beginning two month after her arrival, does not change the legal conclusion that

the habitual residence of the children changed from Minnesota to Israel”).

The Court has also considered Respondent’s argument that Petitioner is improperly “forum

shopping” by filing the instant petition. Respondent notes that Petitioner filed the petition for return

only after Respondent filed for divorce in Missouri and that Petitioner has had poor experiences with

divorce litigation in the United States, including a history of warrants being issued for his arrest due

to failure to pay child support. Respondent argues that Petitioner is using these proceedings as a forum

selection mechanism in order to avoid divorce proceedings in the United States. Respondent relies on

Barzilay II, in which the Court found that the children’s habitual residence was in Missouri and that

the father’s attempt to return them to Israel, where he had a better chance of a favorable custody

determination, was “precisely the sort of international forum shopping the Convention seeks to

prevent.” Barzilay II, 600 F.3d at 922. Respondent’s argument and reliance on Barzilay II are

misplaced. Here, unlike in Barzilay II, the Court has found that the relevant factors show that L.T.’s

habitual residence was in Japan, not in the United States. Thus, Japan is the forum that should

determine custody rights. It is Respondent, not Petitioner, who engaged in the sort of international

forum shopping the Convention seeks to prevent when she took the child from her place of habitual

residence to a different country and filed divorce proceedings there.

Based on the above, the Court finds that as of the time L.T. was removed from Japan, L.T.’s

place of habitual residence was Japan. The burden thus shifts to Respondent to establish an affirmative

defense to L.T.’s prompt return.

B. Affirmative Defenses

In her Answer, Respondent asserted two affirmative defenses: (1) that returning L.T. to Japan

would expose L.T. to a grave risk of physical or psychological harm; and (2) that Petitioner consented

to and acquiesced in Respondent’s retaining L.T. in the United States. Neither defense is mentioned

in the proposed findings of fact and conclusions of law submitted by Respondent, and it is unclear

whether Respondent continues to take the position that either of the defenses apply. Nevertheless, the

Court will address them below.

1. Grave Risk of Harm

Under Article 13b of the Hague Convention, a court “‘is not bound to order the return of the

child’ if the court finds that the party opposing return has established that return would expose the

child to a ‘grave risk’ of physical or psychological harm.” Golan v. Saada, 142 S. Ct. 1880, 1891-92

(2022) (quoting Abbott v. Abbott, 560 U.S. 1, 10 (2010)). “ICARA requires that a respondent opposing

return of a child under Article 13(b) must establish this exception by clear and convincing evidence.”

Rydder v. Rydder, 49 F.3d 369, 373 (8th Cir. 1995). See also 22 U.S.C. § 9003(e)(2)(A). The Eighth

Circuit has recognized “two types of grave risk that are cognizable under Article 13(b): (1) cases in

which a child is sent to a zone of war, famine, or disease; and (2) those involving serious abuse or

neglect.” Vasquez v. Colores, 648 F.3d 648, 650 (8th Cir. 2011) (citing Silverman, 338 F.3d at 900).

Only the latter is potentially relevant in this case.

The grave risk exception must be “construed narrowly,” and “[g]eneral evidence of harm is

insufficient” to satisfy the exception. Acosta v. Acosta, 725 F.3d 868, 875 (8th Cir. 2013). “[I]n order

to apply the Article 13(b) exception, the court would need to cite specific evidence of potential harm

to the individual child[].” Silverman, 338 F.3d at 900. “[T]he potential harm must be severe, and there

must be a probability that the harm will materialize.” Guzzo, 2022 WL 3081159, at *7 (quoting Ermini

v. Vittori, 758 F.3d 153 (2d Cir. 2014) (internal quotation marks omitted)). See also Babcock v

Babcock, 503 F. Supp. 3d 862, 882 (S.D. Iowa 2020) (noting that “the harm must be a great deal more

than minimal” and that “ [n]ot any harm will do nor may the level of risk of harm be low”) (quoting

Walsh v. Walsh, 221 F.3d 204, 218 (1st Cir. 2000)). A lack of evidence that past physical abuse of the

child has occurred “does not necessarily render Article 13b inapplicable” where there is other

evidence showing a significant risk of future abuse. See Acosta, 725 F.3d at 876 (affirming district

court’s finding of a grave risk of harm despite the absence of physical abuse of a child where the

evidence showed that the father’s inability to control his temper presented a significant danger that

he would act irrationally toward himself and his children; noting the father’s assault of a taxi driver

in his children’s presence, his abuse of the mother in the children’s presence, his shoving of one of

the children, and his telephonically expressed threats to kill his children and himself); Walsh, 221

F.3d at 220 (holding that the district court erred by discounting the grave risk of physical and

psychological harm to the children where there was “a clear and long history of spousal abuse”; a

history of “fights with and threats against persons other than [the father’s] wife”; a history of “an

uncontrollably violent temper”; a history of assaults that were “bloody and severe”; and “ample

evidence that [the father] has been and can be extremely violent and . . . cannot control his temper”).

In her Answer, Respondent alleged that Petitioner had “abused, isolated, controlled, and

assaulted Respondent and the Minor Child, both physically and verbally,” and that “[t]he Minor Child

has expressed fear of Petitioner and is afraid of further harm at the hands of Petitioner.” Respondent’s

Answer, Doc. 8, at ¶ 37. Respondent also alleged that she and the child were held in Japan against

their will for twenty months, and that Petitioner “told Respondent that if she ever tried to leave

Petitioner’s control, he would kill her.” Id. at ¶ 35. In her trial brief, Respondent argued that

Petitioner’s coercion and control over Respondent constituted spousal abuse beyond what a seven-

year-old child should witness, that L.T. had indicated to Respondent that her father frequently got

physical with her, that Respondent had witnessed physical marks on the child stemming from the

father getting physical on at least one occasion, and that Petitioner inappropriately bathed with his

seven-year-old daughter.

When she testified at trial, Respondent offered no evidence in support of most of these

allegations. She offered no evidence that Petitioner abused or assaulted L.T., no evidence that L.T.

had expressed fear of Petitioner, no evidence related to bathing or improper sexual behavior, no

evidence Petitioner ever threatened Respondent or L.T., no evidence that Petitioner had physically,

sexually, or verbally abused L.T., and no evidence that L.T. was afraid of being harmed by her father.

She also offered no evidence that Petitioner threatened to kill Respondent if she tried to leave his

control, and no evidence that Petitioner ever physically abused Respondent. Respondent did testify

that Petitioner verbally, mentally, and psychologically abused her. When asked to describe the abuse,

Respondent testified that Petitioner would ask her every day what she was doing to better herself, that

he was always cutting her down in front of her daughter, that he was disrespecting her and her

daughter, and they would get in arguments. She testified that being around him made her skin crawl,

that he made her feel like she had to ask him for everything, that he told her she could not speak

English to her daughter, that they would leave her out in conversations during meals, and that he

would tell their daughter untrue things and then their daughter would be mean to her.

The Court finds no evidence, let alone clear and convincing evidence, that returning L.T. to

Japan would subject L.T. to a grave risk of physical or psychological harm. It appears that Petitioner

and Respondent had significant marital problems and arguments, which L.T. may have at time

witnessed. But there is no credible evidence that Petitioner has ever harmed L.T. in any way

(physically or psychologically); that Petitioner has ever threatened to harm L.T. in any way; that

Petitioner has a history of violence or abuse directed toward L.T., Respondent, or anyone else; or that

Petitioner has any unstable or violent tendencies that might suggest a risk that he would harm L.T. in

the future. There is simply no evidence of past or potential harm to L.T. that might support a finding

that returning L.T. to Japan would expose L.T. to a grave risk of physical or psychological harm. Cf.

In re Hague Application, No. 4:07CV1125SNL, 2007 WL 4593502, at *11 (E.D. Mo. Dec. 28, 2007)

(grave risk of harm exception did not apply where there was “no credible evidence before the Court

that Petitioner was abusive to or neglectful of the children” and “whatever alleged abuse Petitioner

directed to the Respondent was not directed to the children.”).

2. Consent or Acquiescence

Article 13a of the Hague Convention “provides a defense to an action for return if the

petitioner ‘consented to or subsequently acquiesced in the removal or retention’ of the child.”

Friedrich v. Friedrich, 78 F.3d 1060, 1069 n. 11 (6th Cir. 1996). “The Convention does not define

consent or acquiescence in any more definite manner, and there is no statement to guide [courts] in

the text or legislative history of the Act” Id. “The consent defense involves the petitioner’s conduct

prior to the contested removal or retention, while acquiescence addresses whether the petitioner

subsequently agreed to or accepted the removal or retention.” Baxter v. Baxter, 423 F.3d 363, 371

(3rd Cir. 2005). The Sixth Circuit has held that “acquiescence under the Convention requires either:

an act or a statement with the requisite formality, such as testimony in a judicial proceeding; a

convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant

period of time.” Friedrich, 78 F.3d at 1070 (footnotes omitted). Respondent bears the burden of

establishing this defense by a preponderance of the evidence. Leonard v. Lentz, 297 F. Supp. 3d 874,

883 (N.D. Iowa 2017) (citing 22 U.S.C. § 9003(e)(2)).

In asserting this affirmative defense in her Answer, Respondent alleged that prior to leaving

Japan, she informed Petitioner of her intent to come home to the United States, that Petitioner was

aware at all times that Respondent had left Japan with the child for the United States and was in

continuous contact with Respondent; and that Petitioner did not make any effort to secure the return

of the child until 180 days had passed after the removal and until over 150 days after Respondent filed

divorce proceedings. Respondent’s Answer, Doc. 8, at ¶¶ 41-44. Respondent did not address this

defense in her trial brief or in the proposed memorandum opinion she filed after trial. However, the

section of the proposed memorandum opinion addressing forum shopping does contain some

argument that may be relevant to this defense: Respondent argues that “Petitioner appeared to have

no problem with Respondent remaining in the United States with the child until he discovered she

had filed for divorce. While Petitioner did frequently ask Respondent to come back to Japan, he did

not seek to force her to return using judicial assistance for six (6) months. Meanwhile, Respondent

repeatedly informed Petitioner that she had absolutely no intention of returning, yet Petitioner still

did not seek judicial assistance. Then suddenly, after discovering that Respondent had filed for a

divorce in the United States and several unmet demands from him for Respondent to dismiss the

divorce proceedings, he filed his complaint herein.” Respondent’s Proposed Mem. Opin., Doc. 36, at

24.

Based on the evidence presented at trial, the Court finds that Respondent has not demonstrated,

by a preponderance of the evidence, either that Petitioner consented to the removal of L.T. before it

occurred or that Petitioner acquiesced in the removal after it occurred. With regard to the consent

defense, the evidence presented shows that Petitioner was unaware of Respondent’s plan to leave

Japan with L.T., that Respondent never disclosed that she intended to leave Japan with L.T. before

doing so, and that when Petitioner discovered that Respondent and L.T. were gone, he became

alarmed and contacted the authorities. This evidence is completely inconsisent with the suggestion

that Petitioner consented to Respondent’s taking of L.T. from Japan to the United States. With regard

to the acquiescence defense, Respondent offered no affirmative evidence of acquiescence, such as a

written or oral renunciation of rights or a consistent attitude of acquiescence over a period of time.

See Friedrich, 78 F.3d at 1070. Instead, the preponderance of the evidence supports a finding that

after the removal, Petitioner consistently wanted L.T. returned to Japan and communicated that desire

to Respondent. Indeed, Respondent herself acknowledges that Petitioner frequently asked Respondent

to return to Japan. Although it did take several months before Petitioner took legal action to secure

L.T.’s return, the evidence suggests that for most of that time, Petitioner still believed that Respondent

would return to Japan with L.T., as she had done after prior trips to the United States. None of

Respondent’s behavior shows that he acquiesced in L.T’s remaining in the United States.

For all of the above reasons, the Court finds that Respondent has not established the

affirmative defense of consent or acquiescce.

V. CONCLUSION

For the reasons stated above, the Court finds that Petitioner has established a prima facie case

for return of L.T. to Japan and that Respondent has not proven that there is an affirmative defense

preventing the return. Accordingly,

IT IS HEREBY ORDERED that Petitioner Naoteru Tsuruta’s Verified Complaint and

Petition for Return of Child Under the Hague Convention (Doc. 1) is GRANTED.

IT IS FURTHER ORDERED that L.T. shall be returned to Japan, her country of habitual

residence, at Respondent’s expense at a reasonable date and time mutually agreed upon by the parties.

IT IS FURTHER ORDERED that Respondent shall make all necessary arrangements

associated with returning L.T. to Japan.

IT IS FURTHER ORDERED that Respondent shall not, absent leave of this Court, remove

L.T. from the Eastern District of Missouri pending her return to Japan.

IT IS FURTHER ORDERED that counsel for Mother shall file a notice with the Clerk of

Court immediately upon L.T.’s arrival in Japan indicating that Mother has fully complied with the

terms of this Order.

IT IS FINALLY ORDERED that no award of attorney fees or other costs, apart from the

aforementioned transportation costs associated with L.T.’s return, will be made at this time. The Court

will consider any separate requests for attorney fees that Petitioner may file, upon motion properly

made.

A separate judgment will accompany this Memorandum Opinion and Order.

— Mo O02

SHIRLEY PADMORE MENSAH

UNITED STATES MAGISTRATE JUDGE

Dated this 19th day of September, 2022.

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