Posts
Jeremy
D. Morley
A California court (Superior Court of California, County of San Diego, Case No. DN179669) has applied my expert testimony concerning Japanese child custody law in refusing to order the relocation of a child to Japan.
The Court ruled that, although the “Burgess and LaMusga factors” weighed in favor of permitting the relocation, the
enforcement issues as to which I testified were so serious as to require that
the relocation application must be denied.
Specifically, the Court found that the mother was
presumptively entitled to relocate with the child because she had sole legal
and physical custody of the child, but that the father had met his burden to
show that the move would cause detriment to the child by demonstrating that
relocation to a foreign country would substantially interfere with his ability
to have any relationship with the child.
The Court’s fundamental concern was as to whether or
not the terms of an order that required substantial access for the father would
be enforceable in Japan.
The Court ruled as follows:
“Jurisdiction problems
making local orders unenforceable in the foreign country including foreign
registration of the local order-this is of most concern to the court. Mother argues through her expert …, an
attorney practicing Family Law in Japan, that despite the fact that Japan has a
documented history of failing to enforce foreign orders, that things have
improved more recently and in fact Japan now enforces foreign orders. She notes that Japan has taken a new approach
to international custody orders since they joined the Hague Convention in
2014.
Father argues through
the testimony of his expert Jeremy D. Morley, an international recognized
expert on child custody issues including international enforcement, that
despite the recent changes, Japan still will not guarantee enforcement [of]
custody orders from California. He
relies on his years of experience dealing with the Japanese court and testifying
in other courts about Japan’s failure to register or enforce non-Japanese
order.
It is against that
backdrop that the Court considers the proposed safeguards offered by Mother…
1) Stipulation that
California would retain jurisdiction.
While potentially helpful, Japanese courts would not be bound by such a
stipulation.
2) Post an adequate
monetary bond within Mother’s financial means, which could be forfeited-along
with some child support. While some
courts have found this option viable, this Court does not. Although many people do not forfeit bonds
because of the loss of money involved, others look at the loss of the posted
bond as the price to get what they want.
In this case, Mother has made it clear that she would prefer that Father
have no further contact with her or the minor child. While Mother has not indicated that she would
ever violate any court orders, the reality is that if she were allowed to
relocate to Japan with the child and then chose not to allow Father to visit
with the child, and the only consequence would be that she lose her posted bond
money, she might consider that a fair trade.
3) Register the
California Order in Japan. Again, while
registering the California order in Japan might potentially provide a safeguard
to Father, there is no guarantee. In
addition, Father would have to litigate the issue in Japan, a country he is a
stranger in, against a Japanese citizen (Mother), involving a Japanese child. Despite the fact that other courts have used
the above suggested remedies to deal with the potential lack of enforceability
of California custody orders, this Court finds that the proposed remedies are
insufficient to ensure the enforceability of this Court’s orders and protect
the rights of Father if the relocation was authorized.
… The Court finds that under Condon and Arbagil, Japan will not enforce the California orders and the lack
of enforceability of the California orders is fatal to Mother’s request for
relocation.”
