Japanese to English Translation, the Hague Convention and Return of the Child to Japan
We’ve blogged about legal interpreting services that often arise in international family law cases. In Cunningham v. Cunningham, Case No. 3:16-cv-1349, filed in the U.S. District Court for the Middle District of Florida, Jacksonville Division, the petitioner, a citizen of Japan, filed a petition pursuant to the Hague Convention and The Convention on the Civil Aspects of International Child Abduction Remedies Act (“ICRA”) seeking the return of her child to Japan.
In 2013, before the child was born, the petitioner (“Mother”) was living in Okinawa with her adult daughter and teenage son when she met the Respondent (“Father”), an American citizen through Facebook. At the time they met, the Father was in the U.S. Army and stationed in Okinawa. The two began a relationship and communicated in each other’s language with the assistance of Google Translate and an online messenger application. The couple married later the same year and conceived a child shortly thereafter. The pregnancy ended in miscarriage, but the couple conceived again and the Mother gave birth to the child (“Child”) that is the subject of this lawsuit.
The couple made plans to move to Maryland after the Father’s Army assignment ended. Despite the fact that their relationship was difficult and tumultuous, the Mother and her teenage son successfully applied for immigrant Visas and obtained permanent resident cards to move to the U.S.
Once in the U.S., the relationship continued to decline and the Mother believed the Father was neglecting them and failing to provide them with sufficient food. The Mother reached out to a domestic violence program, and the advocate, along with the Army, helped the Mother and teenage son return to Japan. Several months later, the Mother gave birth to the Child in Japan. She obtained a Japanese birth certificate for the child as well as U.S. Citizenship, a social security card, and a U.S. passport for her child.
Several months later, the Mother, her teenage son, and newborn baby flew to Maryland and stayed with the Father in the same home they had left six months earlier. They then drove to Florida to attend a family wedding and stayed at the Grandmother’s home. While in Florida, the couple began arguing again and a dispute arose over which parent was entitled to custody of the Child. During this dispute, the mother took the Child from the Father and allegedly began running down the street. The Grandmother called 911, and the officer, who could not communicate with the Mother due to the language barrier, arrested the Mother for domestic violence against the Father upon observing a light red mark on the Father’s arm.
The Department of Children and Families (DCF) was notified about the incident and an investigator interviewed the Mother with the assistance of a Japanese to English interpreter. The Mother reported to the investigator that she had been choked and raped by the Father, and the investigator reported the allegations to the Sheriff’s office. The mother filed a state court petition to regain physical custody of the child, and the Father filed for divorce. The state court held a hearing on the Mother’s petition for custody of the Child, at which the Mother testified under oath that she did not intend to return to Japan but instead planned to raise her child in the United States. The court ruled that the Child must be returned to the Mother, but later allowed the Grandmother to take custody of the child due to communication problems with the domestic violence center.
While living at the shelter, the Mother learned about the Hague Convention and filed an application for assistance in the child’s return with the Japanese Central Authority. The mother and son subsequently flew back to Japan after learning that a family member had been in a serious car accident. The Mother did not attempt to contact her Child once back in Japan. However, the Mother did file the aforementioned petition in federal court seeking the return of her child pursuant to the Hague Convention and federal statutes.
The purpose of the Hague Convention is “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.” In briefs submitted to the federal court and at trial, the Mother claimed that the statements she allegedly made in the state court proceeding about intending to raise the Child in the U.S. were the result of “confusion and faulty translation services” and did not reflect her true intentions regarding her child. The Mother alleged that she had difficulty communicating with some Japanese speakers due to her Okinawan dialect. The Mother also claimed that the transcript from the state court proceeding contained “summary” translations instead of simultaneous or consecutive translations in violation of the Federal Interpreter’s Act.
The federal court judge rejected the Mother’s claims about the Japanese court interpreter. The court found that although the Mother may have been confused during some parts of the proceedings, she did knowingly testify that she intended to stay in the U.S. with her children. The court also found that the Mother’s allegation that she could not communicate with the interpreter was not credible, as the interpreter translated statements that the interpreter could not have known but for her ability to communicate with the Mother.
Nevertheless, the court granted the Mother’s petition for return of the minor child to Japan pursuant to International Treaty and Federal Statute. The court held that there was no evidence that the Mother had formally relinquished her parental rights. The court also held that the Hague Convention required the return of the Child to Japan under the circumstances. Specifically, the court held that according to the evidence presented, the Child was a “habitual resident” of Japan at the time the Father retained her in the U.S., that the retention of the Child was in breach of the Mother’s custody rights under Japanese law, and that the Mother had been exercising her rights at the time of retention.
Contact All Language Alliance, Inc.to obtain certified translation of multilingual evidence in international parental abduction cases.