United States District Court, E.D. Louisiana
FINDINGS OF FACT AND CONCLUSIONS OF LAW
E. FALLON UNITED STATES DISTRICT JUDGE
case involves a claim brought under the Hague Convention on
the Civil Aspects of International Child Abduction. Soonhee
Kim (“Petitioner” or “Mother”) is the
mother of L.J.F. (born in 2007) and A.J.F. (born in 2009)
(the “children”). She petitions this Court to
return her two children to Thailand, asserting that on or
before August 13, 2017, Kamau Bakari Ferdinand
(“Respondent” or “Father”), the
children's father, wrongfully retained them in Louisiana
where they now remain.
the Court is Petitioner's Verified Complaint for Return
of Children to Thailand. This matter was tried before the
Court, sitting without a jury, on February 1, 2018. The
purpose of this trial was not to determine the children's
parental custody, but rather to identify the children's
habitual residence: Thailand or the United States. Having
considered the evidence admitted at trial and the arguments
of counsel, the Court hereby issues its Findings of Fact and
Conclusions of Law pursuant to Rule 52 of the Federal Rules
of Civil Procedure. To the extent that any finding of fact
may be construed as a conclusion of law, the Court hereby
adopts it as such, and to the extent that any conclusion of
law constitutes a finding of fact, the Court adopts it as
Court has subject matter jurisdiction pursuant to 28 U.S.C.
§ 1331, as this matter arises under the Hague Convention
(“Convention”) and International Child Abduction
Remedies Act (“ICARA”), 42 U.S.C. § 11601,
et seq., the implementing legislation. Venue is
proper because the Court “is authorized to exercise its
jurisdiction in the place where the child[ren] [are] located
at the time the petition is filed, ” which was within
the jurisdiction of the United States District Court for the
Eastern District of Louisiana. See 42 U.S.C. §
August 22, 2017, the Mother submitted applications-for L.J.F.
and A.J.F.-to the Thai Central Authority under the Hague
Convention on the Civil Aspects of International Child
Abduction for the return of her children from the United
States to Thailand. See Pet'r Ex. 14.
December 9, 2017, Petitioner filed the instant complaint
before the Court. Petitioner requests the Court to order
Respondent to return the children to Thailand and to pay
Petitioner's legal fees and necessary expenses in
pursuing this action.
December 12, 2017, at the Court's direction, the United
States Marshal served Respondent with Petitioner's
complaint. The Court scheduled a show cause hearing for
December 19, 2017. At the show cause hearing, the parties
agreed on a trial date of January 26, 2018.
January 22, 2018, after Petitioner made several motions
in limine and after inclement weather in New Orleans
that had shut down most of the city, Respondent filed a
motion to continue trial so counsel can have additional time
to prepare. The Court granted Respondent's motion and
continued trial to February 1, 2018. On the same date, the
Court also denied Petitioner's motion to preclude a
clinical psychologist from testifying as an expert and
treating physician, but reserved Petitioner's right to
call a rebuttal expert witness.
January 26, 2018, the Court conducted a hearing by telephone
regarding Petitioner's motion in limine to
exclude video recordings of the Mother and children. The
Court granted in part and denied in part Petitioner's
motion, holding that the portion of the recordings containing
the Mother's statements is admissible under Federal Rule
of Evidence 613 as prior statements and may be used in
connection with credibility issues. The portion of the
recordings containing the children's statements, however,
is inadmissible hearsay under Federal Rule of Evidence 802.
After the Court heard the parties' motions in
limine, trial commenced on February 1, 2018 and lasted
approximately seven hours.
FINDINGS OF FACT
Hague Convention cases, in which the Court's
determination of the children's habitual residence turns
on the intention of the parents, the district court often
“face[s] . . . a choice as to whom it [finds] more
believable.” Eubanks v. Eubanks, No. CV
17-1217, 2017 WL 3235446, at *1 (E.D. La. July 31, 2017)
(citing Yang v. Tsui, 416 F.3d 199, 203 (3d Cir.
2005)). During the bench trial on this petition, the Court
had the opportunity to observe the demeanor of the Mother and
Father, as well as other witnesses, and to hear their
testimony and, on that basis, assess their credibility. The
trial allowed the Court to formulate the following findings
of fact and conclusions of law.
Mother and Father first met in Japan in 2002 and began dating
shortly thereafter. In 2006, the parties married in Kawasaki,
Mother is a citizen of the Republic of Korea, but was born in
and lived most of her life in Japan. The Mother holds special
permanent resident status in Japan. The Mother has no
immigration status in the United States. She is not a
citizen, permanent resident, or immigrant visa holder in the
United States. The Mother is permitted to enter the United
States as a short-term visitor under the visa waiver program.
Father is a citizen of the United States. Prior to 2017, he
lived abroad in Asia for almost eighteen years.
Mother and Father both continued to work in Japan after their
children's births in 2007 and 2009. The Mother is a
director and partner at a venture capital firm, and the
Father is an English teacher.
2011, the Mother's company offered her a promotion in the
company's Bangkok, Thailand office. In December 2011, the
parties jointly decided to move the family to Thailand, and
resided together in the Sukhumvit District in Bangkok.
After the family arrived in Thailand, the Father enrolled in
an educational program at a local university. The Father
completed the curriculum in 2016. The Father did not work
while he was attending school. He then started working as a
part-time English teacher in 2016.
While in Thailand, the Mother, Father and children all held
Thai visas. The family lived transient lifestyles while in
Asia. They often travelled to Japan, Singapore, Taiwan, and
the United States. Nonetheless, from 2011 until mid-2017,
their lives, as well as their children's, centered in
Bangkok, Thailand. The family leased and lived in a luxury
condominium in Bangkok.
Father's extended family-his mother, father and
siblings-lives in New Orleans, and in an effort to keep
connected, the Respondent and/or Petitioner usually
vacationed annually in New Orleans with the children.
2016, after the family lived in Thailand for nearly five
years, the parents began to experience marital discord.
During this time, they initially resided in the same
apartment unit, but slept in separate bedrooms. Eventually,
however, the Father moved out, and rented another apartment
in Bangkok. The Mother and Father lived geographically close
to one another- only two short subway stops away-to allow
equal access to the children.
When the parents parted, they agreed on a schedule for the
children to spend approximately equal time with both parents.
The children resided with the Mother overnight on Fridays,
Saturdays, Sundays, and Mondays, and the children stayed with
the Father overnight on Tuesdays, Wednesdays, and Thursdays.
The family operated on this schedule through 2016 and into
2017, the Father told the Mother he was thinking about
finding a job in the United States and would be interviewing
with a potential employer during a trip with the children to
see their extended family in New Orleans. When the Father was
planning this trip to the United States, the Mother had
advised the Father that she would not agree for the children
to travel to the United States unless the Father provided
proof that he had purchased return plane tickets for the
children to return to Thailand at the end of the vacation.
May 5, 2017, the Father forwarded the Mother an e-mail
confirmation of the children's roundtrip ticket from
Bangkok, Thailand to New Orleans, Louisiana. See
Pet'r Ex. 8 & 9. The e-mail confirmation from Delta
Airlines provided a departure date of June 29, 2017 from
Bangkok and a return date of August 13, 2017. The
children's paternal grandfather purchased the tickets.
June 29, 2017, the children departed Thailand with the
Father's sister and arrived in New Orleans, Louisiana.
August 13, 2017, the Father did not return the children to
Thailand, and indicated to the Mother in an e-mail that he
believes it is a good idea for them to stay. The Father said
the children have outgrown the life Bangkok has to offer.
Mother earns approximately $100, 000.00 USD per year. The
Father earns approximately $36, 000.00 USD per year.
L.J.F., the parents' first child, was born in November
2007 in Kawasaki, Japan. L.J.F. is now ten-years old.
A.J.F., the parents' second child, was born in June 2009
in Yokohama, Japan. A.J.F. is now eight-years old.
children lived in Japan until 2011, when the parents decided
to relocate to Thailand.
children hold special permanent resident status in Japan by
virtue of the Mother's status in Japan and the
children's birth in Japan. The children also hold United
States citizenship by virtue of the Father's United
States citizenship. The children also hold Thai visas, as
dependents on the Mother's Thai visa, which allow them to
live in Thailand.
From 2011 to mid-2017, the children attended pre-school and
elementary school in Bangkok. They were actively involved in
extracurricular activities in Thailand, including drama
classes, chess competitions, taekwondo classes, and Japanese
classes. The children also received medical care in Thailand,
where they received vaccination for school enrollment.
Father and children took annual or semi-annual trips to the
United States, often for the purpose of visiting the
children's paternal grandparents in New Orleans,
Louisiana. The children's paternal grandparents paid for
some of those trips. While in New Orleans, the Father and
children reside with the grandparents.
Since arriving in New Orleans in June 2017, the children have
enrolled in a local school and currently live at their
paternal grandparents' home with their father. The
children have also enrolled in extracurricular activities in
New Orleans, such as piano and ballet lessons.
CONCLUSIONS OF LAW
The Hague Convention
the United States Supreme Court has recognized, “[t]he
Hague Convention on the Civil Aspects of International Child
Abduction generally requires courts in the United States to
order children returned to their countries of habitual
residence, if the courts find that the children have been
wrongfully removed to or retained in the United
States.” Chafin v. Chafin, 568 U.S. 165, 168
(2013). ICARA, 22 U.S.C. §§ 9001-08, is a
codification of the Hague Convention.
Convention was adopted in 1980 in response to the emerging
problem of international child abductions perpetrated by
parents, guardians, and close family members. Mozes v.
Mozes, 239 F.3d 1067, 1069-70 (9th Cir. 2001).
Convention specifically was adopted to address “the
problem of international child abductions during domestic
disputes.” Abbott v. Abbott, 560 U.S. 1, 8
(2001). “The Convention seeks ‘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 laws of one
Contracting State are effectively respected in the other
Contracting States.'” Id. (quoting Art. 1,
S. Treaty Doc. No. 99-11, at 7). Furthermore, the drafters of
the Convention sought to “discourage forum shopping in
international child-custody disputes when it takes the form
of removing a child to the jurisdiction preferred by one of
the parents.” Kijowska v. Haines, 463 F.3d
583, 589 (7th Cir. 2006) (citations omitted).
Hague Convention's stated purpose is “to protect
children internationally from the harmful effects of their
wrongful removal or retention and to establish procedures to
ensure their prompt return to the State of their habitual
residence . . . .” Sealed Appellant v. Sealed
Appellee, 394 F.3d 338, 344 (5th Cir. 2004) (quoting
Hague Convention, Preamble).
“The Convention was designed to ‘restore the
pre-abduction status quo.'” Id. (quoting
Friedrich v. Friedrich, 78 F.3d 1060, 1064 (6th Cir.
1996)). In Sealed Appellant, the Fifth Circuit
explained, “The Explanatory Report is recognized as the
official history, commentary, and source of background on the
meaning of the provisions of the Convention.”
Id. at 343 (citing Pub. Notice 957, 51 Fed. Reg. at
10503). The Explanatory Report to the Hague Convention
[F]rom the Convention's standpoint, the removal of a
child by one [parent with custody] without the consent of the
other, is . . . wrongful, and this wrongfulness derives . . .
from the fact that such action has disregarded the rights of
the other parent which are also protected by law, and has
interfered with their normal exercise . . . [The
Convention] is not concerned with establishing the person to
whom custody of the child will belong at some point in the
future . . . it seeks, more simply to prevent a later
decision on the matter being influenced by a change of
circumstances brought about through unilateral action by one
of the parties.
Id. (alterations and emphasis in original) (quoting
Elisa Perez-Vera, Explanatory Report: Hague Convention on
Private International Law, ¶ 71, at 447-48
the core of these procedures is the Convention's return
remedy: When a child under the age of sixteen has been
wrongfully removed from, or retained outside of, the country
of his or her habitual residence, the country to which the
child has been brought must “order the return of the
child forthwith, ” unless certain exceptions, or
affirmative defenses, apply. Abbott, 560 U.S. at 8
(citing Hague Convention, arts. 4, 12). In this case, both
children fall under the age of sixteen: L.J.F. is ten years
old and A.J.F. is eight years old. See Resp't
Ex. 9 & 10.
Hague Convention came into effect in the United States in
1988, and was ratified between the United States and Thailand
on April 1, 2016. See U.S. Hague Convention Treaty
Partners, available at