Case Update (30 Sept 2024): Lee v. Capalungan; Access to a Parent in Another Country and Division of the Costs of Travel to that Other Country

The parties are unmarried parents of one child born in the Philippines in 2012. The child primarily resides with the child’s father in the United States. The child’s mother resides in Australia. The parents had a prior conflict over the child’s residence that resulted in the mother filing a petition in 2018 in an Ohio federal court to return the minor child to Australia pursuant to the Hague Abduction Convention. She argued that the child’s presence in the United States was always intended to be temporary while she completed career training. She further said that the child’s time was extended only briefly for the child to remain long enough to obtain U.S. citizenship and a passport. The mother ultimately lost the Hague Abduction Convention return petition, with the federal court concluding that the child was “acclimated to his life in Ohio.” Therefore, the child is the subject of an Ohio custody order, which both parents sought to modify.

In January 2023, the Ohio magistrate addressed the parties’ motions and permitted the mother to have access with the child in Australia during every spring break, half of every winter break, and four weeks in the first half of the summer, depending on flight schedules. The magistrate also made several orders regarding how the parents would transfer the child between the U.S. and Australia, essentially resulting in the mother being obligated to pay the cost of her and the the child’s flights to Australia and the father being obligated to pay the cost of his and the child’s flights back from Australia to Ohio. Both parents objected, but the magistrate’s decision was adopted, with one small alteration - that the mother could request, in writing, at least 30 days prior to spring break, that her spring break time be moved to summer parenting time. The father appealed arguing that the Court abused its discretion in: (1) granting parenting time in Australia, and (2) ordering him to pay for the cost of travel associated with the mother’s parenting time.

The Court of Appeals of Ohio (10th District), in addressing the father’s first argument - that the child was now ordered to travel to Australia for time with the mother - made clear that “[t]hough father argues the child should not be forced to spend time in another country, neither party asked for the trial court to conduct an in-camera interview with the child or have a guardian ad litem appointed to help ascertain the child’s wishes.” Without the benefit of evidence on the child’s wishes, the court noted that “there is nothing in the record to indicate the child does not want to spend some time in Australia with mother.” In addressing the father’s second argument - that the father contribute (roughly equally) to the travel costs associated with the child’s time in Australia - the Court made note that the parties have similar incomes, the “mother has been resolute in her refusal to travel to the United States and has foregone years of visitation with the child because of her position”, the father bears the entirety of the child’s everyday expenses, the father has consistently stated that he would agree to the mother having parenting time in the USA, then it was “unreasonable to require the father to be additionally financial responsible for the considerable expense of multiple international trips per year to accommodate mother’s parenting time.” Therefore, the court affirmed the child’s time with his mother in Australia, but reversed and remanded with regard to the father’s financial contribution to facilitate that time in Australia.