Case Update (10 Aug 2023): Tsuruta v. Tsuruta; trial court did not commit clear error in concluding that Japan was child's habitual residence; in addition to other evidence, it did not believe the mother was actually coerced into living there
On September 19, 2022, the U.S. District Court in Missouri ordered the parties' child returned to Japan under the Hague Abduction Convention. The Respondent Mother appealed to the U.S. Court of Appeals for the 8th Circuit, arguing, primarily, that the United States was the child's habitual residence, not Japan, because she was coerced into living in Japan, among other things. She testified at trial that the coercion included her Husband having her sign a marriage license she did not understand, controlling their finances, isolating their child from her by only speaking Japanese, and controlling all important decisions. The district court concluded that the Mother "had mixed feelings about being in Japan and that she was, at times, reluctant to be there. But the facts presented [did] not amount to coercion, and they [did] not significantly undermine the other evidence suggesting that Japan was [the child's] home and thus her habitual residence."
The Court of Appeals, applying the clear-error standard required by Monasky v. Taglieri, concluded that the district court did not err in determining the child was "at home" in Japan as of the date of the Mother's wrongful removal, and the child had spent most of her time in Japan for several years before that date, attended school and daycare, and participated in activities. The Mother again argued coercion, and cited two cases, but the Court of Appeals, reaching the same conclusion, affirmed that there was no evidence of physical abuse, violence, or threats of violence in this case that could have indicated that the Mother was coerced or forced into staying in Japan.
Her second argument, on appeal, was that the Father acted with "unclean hands" and therefore he should be precluded from seeking relief. She argued that he has multiple outstanding bench warrants for his arrest in the United States for his failure to comply with child support orders. Given that the Respondent did not argue this at trial, it cannot now be argued on appeal. If it had not been waived, the Court seemed skeptical whether one can actually argue unclean hands in a Hague Convention matter, but decided that it need not address that issue here.