Friday, July 13, 2018

Case of the Day: Ogawa v. Kang, 2018 U.S. Dist. LEXIS 88561 (D. Utah May 24, 2018)


Plaintiff and defendant were formerly married, with two children. The ex-husband plaintiff is a Japanese national, the ex-wife defendant a South Korean national. While they were married, they lived in Japan until 2012. With the divorce imminent, the ex-wife moved to the United States with the children. The formal divorce was finalized in March 2013. Under the divorce agreement, the ex-husband was to briefly have custody over the children until the end of March 2017, then hand over the children; however, the ex-husband did not do so. In October 2017, the children traveled to South Korea, where the ex-wife met the children and took them to the United States. Plaintiff filed the Hague Child Abduction application in Japan, which reached the District of Utah in which the defendant lived.

The court rejected the application. The court first noted the defendant had the full custodial rights under the divorce agreement, and the plaintiff's right to have some custodial capacity did not include deciding where the children might live. The court also interviewed the children (who were 12 years old,) who expressed the desire to stay with their mother. 


No matter how many times I read international family law cases--my pet favorite--it will never stop sounding a bit crazy from the perspective of a commercial litigator. This case essentially involves self-help enforcement of a contract and a potential overriding of the contractual terms based on the preferences of 12-year-olds who barely speak any English. I do see the reasons why all of this may be necessary, but the differences are nonetheless quite stark.

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