Case Update (13 May 2026): Martinez v. Martinez; it is insufficient to have a right of custody; it must be breached
The parties are the biological and married parents of one minor child who was 18-months old at the time of the trial in the U.S. District Court for the WD of Washington State. Both parties are former U.S. military service members, and are American citizens. Their child was born in Colorado in November 2023. Due to some turmoil in the Respondent Mother’s job in Colorado, “on multiple occasions, the Parties discussed moving to Japan… because they wanted a healthy future for their daughter, had looked at schooling, and read statistics on child education in Japan, which ranked high.” The Respondent wanted to remain in her job in Colorado until March 2025, to not be required to repay a sign-on bonus, but the parties ultimately moved on January 6, 2025, after the Petitioner received an offer letter for a position in Misawa Japan. They sold most of their furniture, and shipped their remaining items to Japan. They vaccinated and quarantined their pets to import them to Japan. Prior to the move, the parents shared equally in parenting duties, but after the relocation, the Respondent assumed primary caretaker duties. They signed a one-year lease, with an option to evaluate the renewal, and purchased furniture and appliances for their Japanese house. They purchased two vehicles, and Respondent served as a volunteer track coach. Respondent continued applying for jobs while residing in Japan, and applied to one at Misawa Air Force Base the week she left for Washington. Ultimately, on May 1, 2025, the Respondent asked Petitioner for a divorce. The parents verbally agreed on an equal time sharing and parenting arrangement. On May 19, 2025, the Petitioner told her that he wanted her gone from the home within one month. On May 22, 2025, the Respondent removed the child from Japan and took her to Washington.
The only two issues that the Court evaluated were the child’s habitual residence and the Petitioner’s rights of custody. The parties disputed whether Japan was the child’s habitual residence, but the court found that a totality-of-the-circumstances concluded it was, particularly in that the 18-month-old’s parents shared an intent to be in Japan for at least a year, if not longer. The court then turned to whether the Petitioner had a right of custody. The parties stipulated that he did under Japanese law. However, the court, in reading the plain language of the 1980 Convention concluded that, under Article 3(a), determining whether a parent has a right of custody is only the first step in the analysis. The second step is that the right of custody must be breached. [“The removal or the retention of a child is to be considered wrongful where – a) it is in breach of rights of custody attributed to a person…”]. They concluded that this Father had a right of custody (acknowledged by both parents) but it was not breached under Japanese Law.
Respondent presented uncontested testimony from a Japanese lawyer who opined that the Japanese courts would presumably have jurisdiction because the couple’s last common residence was in Japan, and the Petitioner remains resident there. The couple is married, and would presumably have joint parental rights. However, if the married parents are separated with “no agreement regarding custody and one parent takes the child, the ‘left-behind parent’ must apply for injunctive relief to obtain custody of the child, a process which takes an average of one month.” The Japanese court will then give the primary custodian custody. In other words, under Japanese law, “if the left-behind parent is not the primary custodian, the left-behind parent will lose the case.” In hearing this, the District Court concluded, based on the totality-of-the-circumstances, that the Respondent was the primary custodian, and would, if a suit was filed in Japan, be given custody, and therefore, her removal of the child would not breach the Respondent’s rights. The Petitioner, therefore, did not prove that his right of custody was breached under Japanese law at the time of the child’s removal from Japan. His request to return the child to Japan was denied.
