629 F.Supp.3d 942
E.D. Mo.2022Background
- Petitioner (Naoteru Tsuruta), a Japanese citizen and L.T.’s father, filed a Hague/ICARA petition seeking return of his daughter after Respondent (Sarah Tsuruta), a U.S. citizen and mother, removed L.T. from Japan to Missouri on October 15, 2021.
- L.T. had lived with both parents in Japan from November 2018 until the removal (about three years), attended daycare/school, participated in extracurriculars, spoke Japanese and English, and had social and family ties in Japan.
- Petitioner asserted he exercised custody rights under Japanese law at the time of removal; Respondent denied Japan was L.T.’s habitual residence and raised two defenses: grave risk of harm and consent/acquiescence.
- Court held an evidentiary hearing, found both parents had credibility issues but credited petitioner on key points, and admitted documentary evidence and witness testimony.
- Court found by a preponderance that Japan was L.T.’s habitual residence immediately before removal, rejected Respondent’s grave-risk and consent/acquiescence defenses, and ordered L.T.’s return to Japan at Respondent’s expense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Habitual residence (prima facie) | Japan was L.T.’s habitual residence: lived there ~3 years, school, activities, family ties, acclimatization | L.T. was not habitually resident in Japan; mother viewed stay as temporary or coerced | Court: Japan was L.T.’s habitual residence based on acclimatization, settled purpose, parental conduct; prima facie case established |
| Grave risk of harm (Art.13(b)) | N/A — petitioner argued return required absent proven grave risk | Respondent claimed coercion, verbal/physical abuse, and risk of psychological/physical harm to child | Court: No clear and convincing evidence of grave risk; allegations unsupported at trial; defense fails |
| Consent / acquiescence (Art.13(a)) | Petitioner did not consent and did not acquiesce; he searched and contacted authorities | Respondent claimed Petitioner knew and did not act promptly; argues implied consent/acquiescence | Court: No evidence Petitioner consented or subsequently acquiesced; defense fails |
Key Cases Cited
- Monasky v. Taglieri, 140 S. Ct. 719 (2020) (defines habitual residence as where child is “at home” and stresses fact-driven acclimatization inquiry)
- Golan v. Saada, 142 S. Ct. 1880 (2022) (describes Article 13(b) grave-risk exception and its narrow construction)
- Abbott v. Abbott, 560 U.S. 1 (2010) (explains Hague Convention’s purpose to return wrongfully removed children)
- Barzilay v. Barzilay, 600 F.3d 912 (8th Cir. 2010) (identifies factors for habitual residence, including settled purpose and acclimatization)
- Custodio v. Samillan, 842 F.3d 1084 (8th Cir. 2016) (articulates three-part prima facie test for Hague return)
- Acosta v. Acosta, 725 F.3d 868 (8th Cir. 2013) (notes Convention is not for resolving custody merits; grave-risk can be shown without prior physical abuse if future risk is significant)
- Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003) (addresses coercion and post-move parental intentions in habitual-residence analysis)
- Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996) (discusses standards for consent and acquiescence defenses under the Convention)