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Kim v. Ferdinand

United States District Court, E.D. Louisiana

February 5, 2018

SOONHEE KIM
v.
KAMAU BAKARI FERDINAND

         SECTION “L” (5)

          FINDINGS OF FACT AND CONCLUSIONS OF LAW

          ELDON E. FALLON UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This 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.

         Before 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 such.

         II. JURISDICTION

         The 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. § 11603(b).

         III. PROCEDURAL HISTORY

         On 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.

         On 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.

         On 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.

         On 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.

         On 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.

         IV. FINDINGS OF FACT

         In 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.

         A. Parents

         1. The Mother and Father first met in Japan in 2002 and began dating shortly thereafter. In 2006, the parties married in Kawasaki, Japan.

         2. The 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.

         3. The Father is a citizen of the United States. Prior to 2017, he lived abroad in Asia for almost eighteen years.

         4. The 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.

         5. In 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.

         6. 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.

         7. 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.

         8. The 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.

         9. In 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.

         10. 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.

         11. In 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.

         12. On 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.

         13. On June 29, 2017, the children departed Thailand with the Father's sister and arrived in New Orleans, Louisiana.

         14. On 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.

         15. The Mother earns approximately $100, 000.00 USD per year. The Father earns approximately $36, 000.00 USD per year.

         B. Children

         16. L.J.F., the parents' first child, was born in November 2007 in Kawasaki, Japan. L.J.F. is now ten-years old.

         17. A.J.F., the parents' second child, was born in June 2009 in Yokohama, Japan. A.J.F. is now eight-years old.

         18. The children lived in Japan until 2011, when the parents decided to relocate to Thailand.

         19. The 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.

         20. 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.

         21. The 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.

         22. 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.

         V. CONCLUSIONS OF LAW

         A. The Hague Convention

         23. As 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.

         24. The 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).

         25. The 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).

         26. The 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).

         27. “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 describes:

[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 (“Explanatory Report”).

         28. At 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.

         29. The 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 ...


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