How important an international child custody rights determination in a foreign country can be for two American parents became the deciding factor in a Hague Child Abduction case. A recent federal Hague Convention decision proves a return petition can fail even when a court finds a child’s habitual residence was Japan before the child was removed.
Turning Japanese
The Mother and Father, both Americans, met in May 2022 while working at Al Udeid Air Base in Qatar for the U.S. Air Force. They visited Mother’s brother and their nieces in Japan, and enjoyed the food, culture, and cleanliness of the country. Upon returning to the U.S., their child was later born in Colorado.
They discussed moving to Japan because they wanted a healthy future for their daughter, had looked at schooling, and read statistics on child education in Japan, which ranked high.
On January 6, 2025, the family relocated to Misawa, Japan. By May 2025, the Mother asked for a divorce and started sleeping in another bedroom in the home. A few weeks later, when the child was then 18 months old, the Mother moved to Washington state.
The father filed a Hague Convention petition seeking the return of their infant daughter to Japan arguing Japan was the child’s habitual residence and he had custody rights under the laws of Japan.
Florida Hague Child Abduction
I have spoken and written about the Hague Abduction Convention and international child custody issues before. The Hague Abduction Convention establishes legal rights and procedures for the prompt return of children who have been wrongfully removed or retained.
The International Child Abduction Remedies Act is the statute in the United States that implements the Hague Abduction Convention. Under the Act, a person may petition a court for the return of their child to her habitual residence in another signatory country, so the underlying child custody dispute can be determined in the proper jurisdiction.
To establish a prima facie case a court must make find that the state in which the child was habitually resident immediately prior to the removal or retention is where Petitioner resides and the law of the state of habitual residence; and that the petitioner was exercising those rights at the time of the removal and removal breached the rights of custody.
Big in Japan
The trial court agreed with the father on several important points. It found that the American child was habitually resident in Japan, and that the father had custody rights and was exercising them at the time of removal. Ordinarily, those findings would be powerful evidence in favor of return. But the petition failed on a different element: breach.
Under the Hague Convention, a removal is wrongful only if it breached the Father’s the rights of custody under the law of Japan. The mother presented unrebutted expert testimony that, under Japanese law, if the primary custodian removes the child without force, and the child does not object, the removal does not infringe the other parent’s custody rights.
The trial court found that the mother had been the child’s primary custodian during most of the family’s time in Japan, that there was no evidence the mother used force to remove the child, and no evidence the child objected to leaving Japan.
The trial judge concluded that the father had not proven removal breached his rights of custody rights under the law of Japan, and denied his return petition.
The case is a reminder that Hague Convention cases are not ordinary custody cases and the law of the child’s habitual residence still matters, even if it is the child custody law of another country.
The order is here.