Cunningham v. Cunningham (237 F. Supp. 3d 1246, 2017)

ORDER

MARCIA MORALES HOWARD, United States District Judge

THIS CAUSE comes before the Court on the Verified Petition for the Return of Minor Child Pursuant to International Treaty and Federal Statute and Request for Issuance of Show Cause Order (Doc. 1; Verified Pétition), filed on October 26, 2016. Petitioner filed the Verified Petition pursuant to The Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), Oct. 25, 1980, T.I.A.S. No. 11670, as implemented by the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001, et seq. In the Verified Petition, Ryoko Cunningham (the Mother), a citizen and resident of Japan, requests the return of her child, Y.L.C. (the Child), from the United States to Japan. See Verified Petition at 2, 4. Respondents Terrence Cunningham (the Father) and Glenda Cunningham (the Grandmother), the father and paternal grandmother of the Child, filed an answer to the Verified Petition on November 17, 2016. See Answer and Defenses to Petitioner’s Verified Petition for the Return of Minor Child (Doc. 17; Answer). At present, the Child lives with the Grandmother in Yutee, Florida. The Father is serving in .the United States Army and currently stationed in Maryland, but his home of record is also Yutee, Florida. On November 23, 2016, the Court held a status conference and, after conferring with the parties, set this matter for an evidentiary hearing to be held on January 5, 2017. See Minute Entry (Doc. 19). The Court began the evi-dentiary hearing on January 5, 2017, as scheduled and all parties appeared in person with their counsel. See Minute Entry (Doc. 53). .The evidentiary hearing continued for three additional days. See Minute Entries (Docs. 64, 56, 57). Over the course of the four-day evidentiary hearing (the Hearing), the Court heard testimony from the parties, as well as several lay witnesses, and three expert witnesses. The Court also received numerous documentary exhibits into evidencé. Id. Counsel for the parties submitted trial briefs and replies prior to the Hearing, and at the conclusion of the Hearing, counsel opted to present oral closing arguments rather than file post-hearing briefs. See Petitioner’s Trial Brief (Doc. 21) and Respondents’ Trial Brief (Doc. 22), both filed December 15, 2016; Respondents’ Reply Brief (Doc. 29) and Petitioner’s Reply to Respondents’ Trial Brief (Doc. 30), both filed December 21, 2016. Accordingly, this-matter is ripe for review.

I. Factual Findings

The Court begins its factual findings by acknowledging that, despite having presided over a four-day evidentiary hearing, much of what transpired between the parties in this case remains unclear. During the hearing, the Court found the testimony of both parents to be remarkably untruthful. The Court makes this finding based on various factors including the Court’s observation of the demeanor of the witnesses, the believability of some of their assertions,' the numerous contradictions in their own testimony and statements, and the inconsistency between certain of their statements and other, more reliable or objective evidence. Also, the testimony offered by the corroborating witnesses, largely family members or prior advocates, was plainly skewed (albeit unintentionally) by their close relationship with one side or the other. The Mother and Father’s actual shared intentions at the time of these events are further obscured because it appears that the language barrier prevented this couple from communicating effectively with each other. Thus, trying to piece together a coherent account of this chaotic relationship is, in some respects, impossible. Nonetheless, to decide this case, the Court does not have to determine exactly what happened at each of the various points in their disputed history. Rather, the outcome turns on two essential questions: 1) what the Mother and Father (the Parents) intended when the Mother, pregnant with the Child, left the United States in April 2015, and 2) what their agreement was when the Mother returned to the United States with the Child in October 2015. To answer these questions, the Court, having weighed the evidence and relying on objective evidence wherever possible, makes the following factual findings. In doing so the Court at times accepts the testimony of one parent or the other as more credible and at other, times where no such determination can be made, recognizes the .parents’ differing accounts.

The Mother was born in Japan and has lived her entire life in Japan aside from a three week period when she attempted to live in the United States. She has three children, an adult daughter and a teenage son, who are not related to-the Father, and the eighteen-month old Child, who is the subject of these proceedings. Prior to the Child’s birth, in .early 2614, the' Mother was living in Okinawa with her. daughter and son when she met the Father' via Facebook-. The Father, an American citizen, was stationed with the Army in Okinawa at the time. Although neither person could speak the other’s language with any proficiency, a relationship developed between the two through the use of an online messenger application called “LINE” and Google Translate. In May 2014, the couple got married in Japan and soon thereafter the Mother becanie pregnant. This pregnancy ended in a miscarriage, but a few months later the Parents conceived the Child. The Father’s assignment in Japan was scheduled to end in early 2015, and his new assignment was Fort Detrick, Maryland. Although their relationship was turbulent and troubled, the Parents nevertheless made plans to move to Maryland together, with the Mother’s teenage son, and live there as a family on a permanent basis. Accordingly, the Mother and her teenage son applied to the United States for immigrant Visas, and eventually obtained permanent resident cards. See Resp.’s Exs. 7-10, 61. The Mother also updated her address with the Japanese authorities to reflect her upcoming move to the United States.

On March 22, 2015, the Father, the Mother, pregnant with the Child, and her teenage son relocated to the United States. They initially flew to Florida to visit the Father’s family, and stayed for approximately a week with the Grandmother. The Father purchased a car while in Florida and the Father, Mother, and teenage son then drove to Maryland. Once in Maryland, the Father applied for housing on the base and obtained a three-bedroom house. Soon after settling in Maryland, the already volatile relationship between the Mother and Father deteriorated rapidly. The Mother believed the Father was neglecting her and her son, and failing to provide them with sufficient food. The Father was busy with work and maintains that he was providing as best he could under their tight financial circumstances. Due to the language barrier, the Mother and her son were unable to fend for themselves and felt isolated and trapped in the home. The Mother was also experiencing abdominal pain and, concerned for the unborn Child, wanted medical care. The couple argued frequently, and the Mother reached out to a domestic violence program for Asian Pacific Islanders. See Pet.’s Ex. 35. The Mother described her isolated and dependent situation to her case manager, including her contention that the Father was not providing enough food, and that he was physically abusive. Id. She also reported that she was experiencing abdominal pain and was worried about the unborn Child. Id. Because this domestic violence program was not located near the Mother, the case manager put the Mother in touch with local services that could provide assistance. Id. Shortly thereafter, the Father took the Mother to the hospital as a result of her abdominal pain, where she was admitted and kept overnight. The Mother reported to the hospital that she had been raped and that she and her son were not receiving enough food. The next day, someone in the Father’s chain of command drove the Mother home from the hospital. The day after her release from the hospital, approximately April 11, 2015, someone in Army command drove the Mother and her son to the airport and they flew back to Japan on plane tickets funded by the Army.

According to the Father, he took the Mother to the hospital after a particularly egregious argument spurred by his late arrival home from an outing with his new co-workers. During the argument, the Mother demanded a divorce and threatened to return to Japan. He stated that the Mother, who was extremely angry with him, began experiencing abdominal pain, and given her previous miscarriage, he was concerned about the unborn Child so he took the Mother to the hospital. The Father testified that the next day he had a conversation with the Mother in which she stated that she was going back to Japan, she wanted a divorce, he would never see the Child, and he would be paying alimony and child support until the Child was an adult. The Father testified that this conversation with the Mother prompted him to seek the assistance of his command team in returning the Mother to Japan. The Father maintained that although he did not want her to leave, he asked for the Army’s assistance in helping the Mother and her son return to Japan because he was concerned about the well-being of the unborn Child in light of the apparent stress to the Mother from living in the United States. He also stated that he received a grant from the Army Emergency Relief Fund to purchase her return tickets to Japan. According to the Father, it was still his intention that the Child would be born and raised in the United States, and he testified that even before she left the United States to return to Japan, the Mother contacted him saying that she did not really want a divorce and begging to return. However, it was too late for him to reverse what had been put in motion. The Mother denied that she begged to stay in the United States, and insisted that she was relieved and happy to be going back to Japan, Notably, the Father conceded that he was not privy to the Mother’s conversations with his command or her conversations with the Army’s Family Advocacy program. Nonetheless, whatever the Father’s role may have been, it is apparent the Mother’s domestic violence advocate played a significant part in accomplishing the Mother’s immediate return to Japan. See Pet’s Ex. 24.

Significantly, neither party presents any objective evidence to support their version of the highly contested events that occurred in Maryland. For example, the parties did not provide the Court with any records from the hospitalization which precipitated the Mother’s sudden departure, nor did they provide the Court with a declaration from anyone with the Army, the Army’s Family Advocacy Program, or the Army Emergency Relief Fund, the entities that allegedly assisted with the Mother’s return to Japan. The Court has no records corroborating any purported “No Contact Orders” that the Amy allegedly imposed in March 2015, although Respondents did provide the “No Contact Orders” issued after the October 20Í5 events:- The Mother supports her version of the' events in Maryland through .the testimony of her Micah’s Place advocate, Erika Morrison. In October of 2015, Morrison spoke with the Father’s commanding officer (“command”) as well as the family advocates in Maryland, and prepared notes of those conversations for the Micah’s Place business records. See Pet’s Ex. 24.

'• Morrison’s notes show that the Father’s command was surprised and angry' to learn of the Mother’s return; According to Morrison, command also stated that the Mother was- not to return to the United States, but the meaning of that statement is unclear. Moreover, based on Morrison’s notes, it appears it was actually in her conversation with the ■ domestic violence advocate, not Army- command, that she learned the Mother “was not to return to the States.” See Pet’s Ex. 24. In addition, Morrison testified that the Army was investigating the Father for sexual assault, but the Court has no information on the status or results of that investigation. The notes of Morrison’s conversation with the Mother’s domestic violence advocate indicate that the advocate “moved heaven.and earth” in April 2015 to send the Mother back to Japan as soon as possible, and the notes include a description of the domestic and sexual violence that was reported to have occurred in Maryland. However, it is unclear whether these notes reflect the Mother’s allegations at the time, or actual findings from an investigation. Thus, the Court-is left to rely in large part on the conflicting testimony of the Mother, Father and the Mother’s teenage son regarding what actually occurred in Maryland.

Once back in Japan, the Mother resumed living in the same apartment with her adult daughter and teenage son. The Mother also notified the Japanese authorities of her return and updated her address on her family registry. In April and May of 2015, the Mother worked' as a driver, see Resp.’s Ex. 87, akin to driving for Über, and at the end -of July, the Mother gave birth to the Child. The Mother obtained a Japanese birth certificate for the Child, updated her family registry to reflect the Child’s birth, and obtained a Japanese health insurance card for the Child. See Pet.’s Exs. 7-10. Bank records show that during this time the Father transferred funds into a bank account he shared with the Mother and that someone in Japan made withdrawals and purchases from that account. See Resp.’s Ex. 11. In addition, at some point in time between the birth of the Child and the beginning of October, the Child obtained her United States citizenship, a United States social security card, and a. United States passport. See Resp.’s Ex. 25. Despite the fact that the Mother participated in procuring these documents for the Child, including visiting the embassy in Japan and signing the social security card application, in Court she denied that she understood their meaning.

On September 18, 2015, using the Father’s credit card, the Mother purchased one-way plane tickets to travel from Japan to the United States with her teenage son and the Child. See Resp.’s Éx. 15. Only three days later, on September 21, 2015, the Mother exchanged text messages with the Father in which she stated she would not come back to the Father because “You no change.” See Resp.’s Ex. 67; Pet’s Ex; 13. In that exchange, the Mother asked for her belongings and support, and stated that she would file for divorce. Id. The Father responded to the Mother’s statements by repeatedly asserting “Come back to me,” professing his love for her, and stating “So you angry/ So you calm down/ So come back to me/ I will wait for you. Airport.” See Pet’s Ex. 14. On September 25, 2015, the Mother and Father had the following text message exchange:

Father: “Me alone. Tonight work. Vacation done.”

“Me no lie.”

“So sleep trying me.”

Mother: “I If you agree the divorce we will not return to the United States.”

“I If you agree the divorce we will not return to the United States.” “Please freely I do not care anymore you.” “Your free”

Father: “See. So Ryoko wants divorce strongly?”

Mother: “It is agreed.”

Father: “See. Ryoko wants divorce?” Mother: ‘You?”

‘You okay = me okay”

“See?”

See Pet’s Ex. 15. Although, she made an effort to preserve several other text messages, the Mother did not save any text messages reflecting the circumstances surrounding her decision to travel to the United States. On October 4, 2015, the Mother, teenage son, and the Child boarded an airplane and flew to Maryland. While in Maryland, they stayed with-the Father in the same marital home from which they had fled six months ■ earlier. From- Maryland, the group drove to Florida, staying in a hotel overnight along .the way,, to attend the wedding of the Father’s brother. Upon their arrival, the four checked into a hotel where other members of the Father’s family were staying for the wedding.

On the morning of the wedding, Friday, October 9, 2015, the Mother, Father, teenage son and. Child visited the Grandmother’s home. Later that day, the Mother, Grandmother and other members of the Father’s family went to a náil salon together to get manicures for the wedding. Nonetheless, at some point the Mother and Father got into an argument and the Mother, her son, and the Child did not attend the wedding that evening. In the early hours of Saturday morning, the Mother demanded to return to Japan:

Mother: “Come back Okinawa me”

Father: “See. So you fight, so go back Okinawa? Of course. Me understand”

“You go back okinaea? [sic]”

“Ok. You choice”

Mother: “Ok”

See Pet’s Ex. 16. The argument continued as follows:

Mother: “Me no like”

“Monday come back Okinawa me”

Father: “Me no like divorce talk”

“Me no like go back Okinawa talk”

“Me no like no listen.”

“See. You talk before, go back Okinawa monday. So ok. Me no happy. But, you choice.

“I love you very much.”

“Good night.”

Mother: ‘You no hotel together”

“Ok”

Father: ‘You fighting”

“Me done fighting”

Mother: “No”

Father: ‘Yes”

Mother: “Now no fighting me”

See Pet’s Ex. 16. Later that morning, the Father drove to the hotel and picked up. the Mother, her son, and the Child. Although no airline tickets had been purchased, the Mother testified that she believed they were going to drive to Maryland where she would gather her belongings, and then she and her children would fly back to Japan on Monday, October 12, 2015. The Father’s text message appears to be consistent with that understanding.

Prior to leaving for Maryland, the Father drove to the Grandmother’s house. The Father went inside while the Mother and the children waited in the car. While inside, the Father sent the Mother the following text messages:

Father: “You can’t take my baby back to Okinawa”

“My baby stays with me.”

“Baby says goodbye. Go home.”

“No goodbye, no go home."

“Ok”

“Baby no deported.”

“Baby stays with father. Baby is citizen.”

See Pet’s Ex. 17. Although the events that transpired after this are highly disputed, at some point, the Father and Grandmother came outside and the Grandmother held the Child. The Mother became upset, and the Grandmother handed the Child to the Father. The Mother took the Child from the Father and began fleeing down the street to a neighbor’s house with the Child and her son.

Under the Mother’s version, the Father told her that unless she gave the Grandmother the baby, she could not go back to Maryland. When the Grandmother was holding the baby, the Mother signaled that she wanted the Child back and the Grandmother turned her back to the Mother. In light of the Father’s earlier text messages, the Mother became upset and fearful that they were not going to give the Child back to her, prompting her to take the Child and flee down the street. Under the version testified to by the Father and Grandmother, the Grandmother was holding the Child when the Mother attempted to apologize to her for not attending the wedding, but the Grandmother told the Mother she had shamed and embarrassed the family by her behavior. - The Father and Grandmother stated that the Mother became irate at these words and pushed the Grandmother. The Grandmother then attempted to hand the Child to the Father and the Mother pushed the Grandmother again with her shoulder in an attempt to move between them. When the Father took the Child into his arms, the Mother, enraged, beat on the Father’s back, grabbed his arm, and yanked the Child by the head away from him. The Grandmother testified that the Mother was in such a blind rage beating on the Father that she unintentionally elbowed the teenage son in his throat when he attempted to intervene. The teenage son denied this, supported his Mother’s version of events, and maintained that he never saw any physical violence that day.

Nonetheless, it is undisputed that the Grandmother called 911, and a sheriff’s deputy arrived and interviewed the Father and Grandmother. The officer was unable to communicate with the Mother despite seeking assistance of a Japanese interpreter by phone, and did not attempt to interview the son due to the language barrier. Thus, based on the statements of the Father and Grandmother, and the appearance of a faint red mark on the Father’s bicep, the officer arrested the Mother for domestic battery against the Father. Although the Father asserts that he told the officer he did not want the Mother arrested, the officer did not support.this assertion. In this regard, the officer explained that if a victim did not want an- assailant arrested he would notate in his report that the victim was “not cooperative;” The officer stated that both the Father and the Grandmother were “cooperative,” and the report does not include any mention of non-cooperation. The officer took the Mother to jail and left the infant Child in the care of the Father and Grandmother. He also instructed the teenage son, by signaling with his arm, to go into the house and stay with the Father. In the days that followed, the Father does not appear to have made any effort to assist the Mother or otherwise obtain her release.

Notably, the officer’s report of the incident, and specifically his account of the Father and Grandmother’s statements, describes distinctly less egregious conduct than what the Father and Grandmother testified to in Court. See Resp.’s Exs. 13-14. According to the report, when the Grandmother attempted to hand the Child to the Father, the Mother stepped between them and “nudg[ed]” the Grandmother with her shoulder. See Resp.’s Ex. 14. Both the Grandmother and the Father told the deputy that the Mother grabbed and pulled on the Father’s arm and pulled the Child from his arms “very aggressively.” Id The report documents a “red mark” on the Father’s right bicep which was too faint to photograph. Id. In his report, the deputy makes no mention of any allegations that the Mother violently shoved the Grandmother, beat on the Father’s back, elbowed her son in the throat, or yanked the Child by the head. Id.

The officer notified the Department of Children and Families (DCF) about the incident and on October 12, 2015, Katrina Bearden, an investigator with DCF, interviewed the Mother, through an interpreter, at the Nassau County Jail. Bearden photographed a two-ineh by four-inch greenish -bruise on the Mother’s neck, as well as a round, brown-colored bruise the size of a silver dollar on- the Mother’s thigh. See Pet.’s Exs. 19-20. The Mother informed Bearden that the Father had choked her and raped her, and Bearden reported these allegations to the Nassau County Sheriffs Office. See Pet’s Ex. 20. In a letter -to the public defender dated October 14, 2015, Bearden recommended that the Mother be released so she could care for the Child and her teenage son. Id. DCF arranged for the Mother to stay at a domestic violence shelter,. Micah’s Place, and ultimately, the state attorney’s office dropped the charges against the Mother with the benefit of Bearden’s recommendation. After being held in jail for four days, on approximately October 14, 2015, the Mother was released and she and her teenage son went to stay at Micah’s Place. On October 15, 2015, with the assistance of staff at Micah’s Place, the Mother attempted to regain physical custody of the Child by filing a Verified Petition for Emergency Child Pick-Up Order in the Circuit Court of the Fourth Judicial Circuit in Nassau County, Florida. See Pet.’s Ex. 23 (Emergency Petition). On October 16, 2015, the state court denied the" Mother’s petition but set the matter for a hearing. Resp.’s Ex. 30. In the same court, also on the 16th, the Father filed a Petition for Dissolution of Marriage. Resp.’s Ex. 25.

The state court held a hearing on the Mother’s Emergency Petition on October 21, 2015, and the Father, the Mother and a Japanese interpreter were present. See Resp.’s Ex. 37. The Father was represented by counsel at the hearing, but the Mother was not. Id. At the hearing, in response to the court’s questioning, as well as comments from opposing counsel, the Mother, through the interpreter, stated three times, under oath, that she planned .on staying in the United States to raise her children and did not intend to return to Japan. Id. However, Erika Morrison, the Mother’s Micah’s Place case manager, testified that she was present at the hearing and was surprised by these statements because they were inconsistent with what the Mother had previously told her. According to Morrison, the Mother had consistently wanted to know when she could go back to Japan. Notably, in the Mother’s Emergency Petition, dated October 15, 2015, with which Morrison assisted, the Mother stated that she brought the Child to the United States “for a visit.” See Pet.’s Ex. 23. Likewise, in her interview with DCF on October 12, 2015, the Mother told Bearden that she had returned to the United States to allow the Father to meet their" daughter, and that after her arrival the Father told her that the Child was “his kid,” he was going to give custody of the Child to his mother, and the Child would not be, leaving the United States. See Pet.’s Ex. 20. -

At the conclusion of the October 21, 2015 hearing, the state Court directed that the Father would retain the Child’s passport and ordered that the ‘Child not leave the jurisdiction of the court. The judge further determined, on a temporary basis, that the Child must be returned to the Mother, but allowed substantial visitation for the Father. When the Father informed the Court that he must return to Maryland due to his obligations with the Army, the judge directed that the Grandmother would exercise visitation. See Resp.’s Ex. 38. Pursuant to,the state court’s order, the Mother regained physical custody of the Child that evening. However, the Mother’s physical custody of the Child was short-lived. On October 26,2015, the Father’s counsel filed an Emergency Motion to Transfer Temporary Custody of the Minor Child in which she requested that the Child be. placed with the Grandmother due to communication problems that had arisen with Micah’s Place and the failure of the Child to attend a scheduled doctor’s appointment. See Resp.’s Ex. 40. The state court granted the request on October 27, 2015, and set the matter for a hearing on November 2, 2015. See Resp.’s Ex. 41. The Grandmother took physical custody of the Child on October 28, 2015. The Mother appeared with counsel and a translator at the hearing on November 2, 2015, but after hearing testimony from the Father’s counsel and the Mother, the judge determined that the Child would remain with the Grandmother. See Resp.’s Exs. 47, 53. The judge did allow the Mother to exercise visitation with the Child, so long as it was supervised, and did not occur at Micah’s Place. See Resp.’s Ex. 53. The Mother exercised this visitation.

While staying in the shelter, the Mother learned of the Hague Convention, and through Japanese counsel, on November 30, 2015, the Mother filed an Application for Assistance in the Child’s -Return with the Japanese Central Authority. See Resp.’s Ex. 67 (Hague Application). On December 12, 2015, the Mother and her teenage son flew back to Japan without notifying the Father, Grandmother, or her own legal counsel. The Mother returned to Japan after learning that her twin brother was involved in a serious accident, which ultimately led to his death. After she returned -to Japan, the Mother did not have any contact with the Child and neither the - Father nor the Grandmother heard from her. Nor did the Father attempt- to contact the Mother. Although recognizing that the Child was too young to effectively communicate, the Court notes that despite listing the Father and Grandmother’s addresses and phone numbers in her Hague Application, the Mother testified in Court that she did not contact the Child because she did not know their numbers or addresses. On February 11, 2016, the state court entered a Default Final Judgment of Dissolution of Marriage which dissolved the marriage between the Mother and Father, and gave the Father sole parental responsibility and custody, of the Child. See Resp.’s Ex. 78. The Mother filed a Japanese ■ complaint for divorce on February 16, 2016. See Resp.’s Ex. 81.

II. Prima Facie Case

A. Applicable Law

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.” See Convention, pmbl. “The Convention generally intends to restore the pre-abduction status quo and deter parents from crossing borders in search of a more sympathetic court for custody hearings.” See Hanley v. Roy, 485 F.3d 641, 644 (11th Cir. 2007). As such, “[t]he court’s inquiry is limited to the merits of the abduction claim and not the merits of the underlying custody battle.” See Ruiz v. Tenorio, 392 F.3d 1247, 1250 (11th Cir. 2004). The Hague Convention “applies to children under sixteen years of age who are ‘habitually resident’ in a contracting state (Convention, Art. 4) and are ‘wrongfully removed’ to another contracting state (Convention, Art. 1).” Seaman v. Peterson, 766 F.3d 1252, 1257 (11th Cir. 2014). A removal is “wrongful” within the meaning of the Hague Convention where:

a. it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b. at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

See Convention, Art. 3. The petitioner bears the burden of establishing by a preponderance of the evidence that “the child has been wrongfully removed or retained within the meaning of the Convention.” See 22 U.S.C. § 9003(e)(1)(A). If a petitioner establishes a wrongful removal or retention, then “the authority concerted shall order the return of the child forthwith,” unless the respondent establishes one of the affirmative defenses enumerated in the Convention. See Convention, Art. 12; see also Baran v. Beaty, 526 F.3d 1340, 1344 (11th Cir. 2008).

To prevail on her Petition, the Mother must prove that: (1) the Child was “habitually resident” in Japan at the time Respondents retained her in the United States; (2) the retention was in breach of the Mother’s custody rights under Japanese law, and (3) she had been exercising those rights at the time of retention. See Ruiz, 392 F.3d at 1251. The parties do not dispute that the Mother had custody rights and was exercising those rights. Nonetheless, Respondents contend that the Mother cannot satisfy her prima facie case because Japan is not the Child’s habitual residence. In addition, Respondents maintain that, under Japanese law, their retention of the Child did not breach the Mother’s custody rights. For the reasons set forth below, the Court determines that the Mother has satisfied her prima facie case.

B. Analysis

i. Habitual Residence

■ Neither the Hague Convention nor ICARA define the term “habitual residence.” See Ruiz v. Tenorio, 392 F.3d 1247, 1252 (11th Cir. 2004). Indeed, this term is intended to be free from “ ‘technical rules, which can produce rigidity and inconsistencies as between legal systems.’ ” See id. (quoting In re Bates, No. CA 122.89 at 9-10, High Court of Justice, Fam.Div’n .Ct. Royal Court of Justice, United Kingdom (1989)). Generally, a habitual residence requires only that “‘the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.’ ” Id. Recognizing the limited usefulness of such generalities, the Eleventh Circuit has adopted the approach set forth by the. Ninth Circuit in Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) for determining a child’s habitual residence. See Ruiz, 392 F.3d at 1252. According to Ruiz and Mozes, “[t]he first step toward acquiring a new habitual residence is forming a settled intention to abandon the one left behind.” Id. (citing Mozes, 239 F.3d at 1075). Significantly, it is “ ‘the person or persons' entitled to fix the place of the child’s 'residence’ ” whose intention or purpose must be considered. Id. at 1253 (quoting Mozes, 239 F.3d at 1076). However, “when the persons entitled to fix the child’s residence' do not agree on where it has'been fixed,” as in this case, the analysis is more difficult. Id. The courts discussed three different factual scenarios in which such a disagreement may arise, and observed that the more difficult cases occur where the parents agreed to a child’s stay abroad for a period of ambiguous duration. Id. In such cases, the courts reasoned:

“Sometimes the circumstances surrounding the child’s stay are such that despite the lack of perfect consensus, the court finds the parents to have shared a settled mutual intent that the stay last indefinitely. When this is the case, we can reasonably infer a mutual abandonment of the child’s prior habitual residence. Other times, however, circumstances are such that, even though the exact length of the stay was left open to negotiation, the court is able to .find no settled mutual;intent from which such abandonment can be inferred.”

Id. (quoting Mozes, 239 F.3d at 1077-78).

However, while crucial, the settled intention of the parents alone cannot transform the habitual residence. Id Instead, there must also be “an actual change in geography and the passage of a sufficient length of time for the child to have become acclimatized.” Id. Nonetheless, where parental intent is uncertain or contrary, courts must be “slow to infer” a change in habitual residence based on the level of a child’s contact with the new country, such as in school or .with friends. Id. at 1253-54. Because children can be “remarkably adaptable,” the significance of such contacts is difficult to discern and “ ‘[t]he greater the ease with which'habitual residence may be shifted without the consent of both parents, the greater the incentive to try.’” Id. at 1254 (quoting Mozes, 239 F.3d at 1079). Last, the Ruiz and Mozes cases instruct that:

.when there is no shared settled intent on the part of the parents to abandon the child’s prior habitual residence, a court should find a change in habitual residence if the objective facts point unequivocally to a new habitual residence, or if the ¡court could “say with confidence that the child’s relative attachments to the two countries have changed to .the point where requiring a return to the original forum would now be tantamount to taking the child out of the ’family and social environment in which its life has developed.”

Id. at 1254 (quoting Mozes, 239 F.3d at 1081).

The difficulty with applying the foregoing analysis in this case, however, is that Ruiz and Mozes are focused on situations in which a child’s habitual residence has changed, as opposed to the question of when or how an, infant’s initial habitual residence is first established. See Nicolson v. Pappalardo, 605 F.3d 100, 104 (1st Cir. 2010) (stating that the court was “not concerned” with the standards for evaluating a change in habitual residence where respondent argued only that' the child never formed an initial habitual residence). Indeed, “[tjhis case ... presents the -unique question of whether and when a- very young infant- acquires an habitual residence,” and is thus different from the more typical case where “the child is assumed to have an habitual residence initially and the controversy is over a change of that residence.” See Delvoye v. Lee, 329 F.3d 330, 333 (3d Cir. 2003). Significantly, “courts have consistently held that a newborn’s place of birth does not automatically bestow upon that -child a habitual -residence.” See McKie v. Jude, No. 10-103-DLB, 2011 WL 53058, at *10 (E.D. Ky. Jan. 7, 2011) (citing Holder v. Holder, 392 F.3d 1009, 1020 (9th Cir. 2004) and Delvoye, 329 F.3d at 334); see also Uzoh v. Uzoh, No. 11-cv-09124, 2012 WL 1565345, at *5 (N.D. Ill. May 2, 2012) (citing Kijowska v. Haines, 463 F.3d 583, 587 (7th Cir. 2006)). Moreover, an infant child’s habitual residence is not automatically that of her mother. See Delvoye, 329 F.3d at 333; In re A.L.C., 607 Fed.Appx. 658, 662 (9th Cir. 2015); Kijowska, 463 F.3d at 587 (7th Cir. 2006); see also Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 379 (8th Cir. 1995). Thus, although the Mother in. this action devoted a significant portion of her case to proving that the October 2015 trip to the' United States did not change the Child’s habitual residence, the Court must first determine whether she established by a preponderance of the evidence that Japan was the Child’s habitual residence to begin with, a point the Father does not concede. The Father contends that the Child’s habitual residence is the United States because when the couple moved to the United States in April 2015, they shared a mutual intent to remain permanently in the United States. According to the Father, even after .the Mother returned to Japan, they quickly reconciled and prior to the Child’s-birth agreed that as soon as the Mother and Child were able to travel, they would come to the United States to live here permanently. The Mother disputes this, saying that she wanted a divorce from the Father and only came to the United States to allow, him to meet the Child. Having considered all . of the evidence and arguments, the Court concludes that the preponderance of the evidence establishes that Japan is , the , Child’s habitual residence. .. ,

Turning tb the analysis set forth in Ruiz, the Court first dispenses with acclimatization as a useful factor in this cáse. As several circuit courts have recognized, in cases involving very young children, “ ‘[a]cclimatization is an ineffectual, standard by which to judge habitual residence in such circumstances because the child lacks the ability to truly acclimatize to a new environment.’ ” See Redmond v. Redmond, 724 F.3d 729, 746 (7th Cir. 2013) (quoting Karkkainen v. Kovalchuk, 445 F.3d 280, 287 (3d Cir. 2006)); Holder v. Holder, 392 F.3d 1009, 1020-21 (9th Cir. 2004) (“[I]t is practically impossible for a newborn child, who is entirely dependent oh its parents, to acclimatize independent of the immediate home environment of the parents.”); Simcox v. Simcox, 511 F.3d 594, 602 n. 2 (6th Cir. 2007) (acknowledging that considering the acclimatization of a child to determine habitual residence “may not be appropriate in cases involving infants or other very young children”). Rather, when a child is very young “acclimatization is not nearly.as important as the settled purpose and shared intent of the child’s parents in choosing a particular habitual residence.” See Whiting v. Krassner, 391 F.3d 540, 550 (3d Cir. 2004). Accordingly, the Court turns to the question of parental intent.

Like acclimatization, under the circumstances of this case, a focus on parental intent is also problematic. Here, 'the Parents, although still married, had separated and were living1, in different countries at the time of the Child’s birth. Nonetheless, the Court considers the testimony of the Parents and the objective facts to determine whether, despite the breakdown of their relationship, the Parents, at some point, shared a settled mutual intent on where the Child would reside. It is undisputed that the Parents both planned to live together as a family in the United States when they moved here in March 2015. However, the problems that plagued their relationship in Japan followed them to the United States and the situation rapidly deteriorated. After no more than three weeks in the United States, in a whirlwind of tempers and abuse allegations, the Mother and her teenage son returned to Japan with the Army’s assistance. Although it is disputed who obtained the Army’s help in facilitating the Mother’s departure, the Father readily acknowledges that he consented to the Mother’s return to Japan. Indeed, the Father testified that he asked the Army to assist him in getting the Mother back to Japan.

In determining whether the . Child’s habitual residence was Japan at the time of her birth, the Court finds the Father’s testimony in this regard to be significant. The Father unequivocally testified that upon hearing the Mother’s demand to return to Japan and obtain a divorce,. and further, hearing her threat to never let him see the Child, his response was to ask the Army -for assistance in returning the Mother to Japan. Thus, whatever his hopes had been for their future in Maryland, at that point, the Father acquiesced in the Mother’s decision to leave him and return to Japan while pregnant with the Child. Although the Father testified that he still intended for the Child to be born and raised in the United States, the Court rejects this testimony because, under the circumstances, the Father could have had no reasonable expectation that the Mother and Child would be returning to the United States. Indeed, in light of the fraught circumstances in which the Mother left, the family’s limited finances, and the stage of the Mother’s pregnancy, it strains credulity to suggest that the Father thought the Mother and her teenage son would be returning to the United States before the birth of the Child in July. Moreover, absent convincing her to reconcile, the Father had no means by which to ensure that the Mother would ever return. Notably, those involved with the Mother’s departure, the Army command and the domestic violence counselor, had no expectation that she would return to the United States. Thus, while one or both Parents may have had mixed feelings about the Mother’s departure, they both shared a settled mutual intent that she would return to Japan, pregnant with the unborn Child, indefinitely. See Ruiz, 392 F.3d at 1253.

Thus, the Court turns to the next critical issue in determining habitual residence: what were the Parents’ intentions when the Mother returned to the United States with the Child in October 2015. The Father maintained that the parties continued communicating after the Mother returned to Japan and soon reconciled. According to the Father, even prior to the Child’s birth they developed a plan for the Mother, teenage son, and Child to return to the United States as soon as the Mother and Child were able to travel. The Mother denied that there was ever a reconciliation. According to the Mother, when she returned to Japan she had no further communications with the Father until after the Child was born. The Mother testified that although she notified the Father of the Child’s birth, he did not respond, and she did not hear from him until some period of time later. The Mother insisted that she had told the Father she wanted a divorce and the purpose in coming to the United States was to allow the Father to meet the Child, but that she never intended to remain here permanently. The Court finds neither Parents’ description of the October 2015 trip to be entirely credible. For the reasons set forth below, the Court finds by a preponderance of the evidence that at most the Mother traveled to the United States in October 2015 in an. attempt to reconcile with the Father. In doing so, the Court rejects the Father’s contention that any such reconciliation was a full reconciliation with definite plans to settle in the United States.

The Mother’s insistence that the Father and she ceased communicating after she returned to Japan is belied to some extent by the Father’s bank records. The Father transferred $4,000 to the Parents’ shared bank account three days after the birth of the Child. See Resp.’s Ex. 11. The records further establish that the Mother withdrew the entire $4,000 three days later. See Resp.’s Ex. 84. In addition, these bank records show additional transfers from the Father into this account following the Child’s birth and throughout the month of August in amounts of $200, $60.13, $79.57, and $100. See Resp.’s Ex. 11. The transaction history shows numerous debits to this account from someone using a Visa check card to make purchases in Japan,, and the same check card was used to make purchases from the Army and Air Force Exchange Service. Id. Another entry reflects that someone in Japan withdrew $100 from the bank account on August 8, 2015. Id. This evidence corroborates the Father’s testimony that he remained in contact with the Mother at least following the Child’s birth, and continued to send her money and support for their Child, and undermines the Mother’s statements. regarding the status of her relationship with the, Father immediately following the Child’s birth.

The Mother also argues that her actions upon returning to Japan indicate that she had no intention of reconciling with the Father. Specifically, when she returned to Japan • she resumed living in her- prior apartment, obtained a job, registered her new address with the Japanese authorities, and after the Child’s birth, registered the Child and obtained a Japanese health insurance card for her. However, upon closer examination, the Court finds that these actions do not rule out the possibility that the Mother was still considering a possible reconciliation with the Father. When the Mother returned to Japan, she resumed living in the apartment owned by her uncle and shared with her adult daughter,, under the same lease agreement .she had executed prior to the March 2015 departure from Japan. She worked for a month or two “on call” .as a “substitute driver,” which she testified was akin to driving for Uber. See Resp.’s Ex. 87. Although the Mother did register the Child on the family registry with a Japanese address and obtain a Japanese health insurance card for the Child, the Child also obtained her United States citizenship, United States social security number, and United States passport, all while living in Japan. The Mother’s signature is on the Child’s application for a Social Security Card,- dated September 2, 2015, see Resp.’s Ex. 25, and the Father’s unrebutted -testimony is that the Mother assisted in securing these items for the Child, including a visit to the United States Embassy in Japan. As such, the objective evidence regarding the Mother’s actions in obtaining official documentation from both countries for the Child following her birth is at best equivocal as to- the Mother’s ultimate intentions regarding a move to the United States.

The Court also views the Mother’s return trip to the United States' so very soon after the birth of the Child as indicative of a willingness to consider reconciliation. Although the Mother testified that she came to the United States solely to allow the Father to meet the 'Child, the circumstances of the trip suggest otherwise. Under the Mother’s version of these events, having asked the Father for a divorce, she traveled halfway around the globe-with her teenage son and a two-month old infant to allow'her purportedly abusive, estranged husband to meet his newborn daughter. But if the purpose of the trip was only to allow the Father to meet the Child, why not insist that he travel to Japan? Indeed, in her Verified Petition the Mother asserts that the Father had a three-week leave following the birth of the Child which he did not use to see- the Child, see Verified Petition ¶ 24, so then why would she undertake-the journey for his benefit? Why bring the teenage son who' could have stayed home with his adult half-sister? Why would the- Mother agree to an itinerary that included a lengthy, overnight road trip-from Maryland to Florida in a car with her estranged husband? Why would she plan this trip so as to attend the wedding of the brother of her allegedly abusive husband from whom she wants a divorce? These circumstances indicate that the nature of this trip was more than a mere visit to allow the Father to meet the Child, and included at least the possibility of reconciliation. Indeed, when the Court directly asked the Mother why she came back, her response indicated that part of the reason was the Father’s- persistence in begging her to return, declarations of love for her, and his statement that he would wait for her at the airport. Although she testified that the Father promised her'she could go back to Japan, she conceded that prior to the trip she and -the Father never discussed when she would return.

Nonetheless, the Court also rejects the Father’s contention that the Parents had fully reconciled and agreed on a permanent move to the United States. Based on the evidence, it is the Court’s view that any reconciliation between these two individuals was always tentative and the Mother never formed a “settled” intention to abandon Japan. Indeed, shortly after the Mother purchased the plane tickets for the October trip, she exchanged text messages with'the Father stating that she would not come back to him because “you no change,” and demanding a divorce. She either comes to the United States still intending to divorce him or changes her mind and comes to try a reconciliation, but less than a week after arriving in the United States, she is insisting on returning to Japan immediately. Notably, unlike when she moved to the United States in March 2015 with the intent to remain indefinitely, the Mother did not change her address with the Japanese authorities pri- or to the October 2015 trip. The Court is convinced that the Mother came to the United States in October 2015 with at most an intent to explore the possibility of reconciling with the Father, and with every intention of returning to Japan with her children at the first sign of trouble. Likewise, despite the Father’s insistence that their reconciliation and the Mother’s permanent relocation was a settled matter, the Court finds that given the volatile history of their relationship, as well as the Mother’s ongoing discussion of divorce, the Father could not have believed that any such reconciliation was anything but tentative and fragile.

While it is doubtful that this couple ever expressly discussed what would happen if the attempted reconciliation attempt did not work, the preponderance of the evidence establishes that both Parents understood'that absent reconciliation, the Mother and Child would return to Japan. It is undisputed that due'to the Father’s employment, he would be unable to care for the Child on his own, and thus, could not have had any expectation that he would keep the Child in the event his relationship with the Mother broke down. Although the Grandmother is serving as the Child’s caretaker now, she testified that prior to the chaotic events of October 10, 2015, she was unaware that the Mother had asked for a divorce or wanted to return to Japan. As such, the Father could not have discussed whether the Grandmother would be willing to care for the Child until just before the Mother’s arrest. In addition, the Father’s text message exchange with the Mother on October 10, 2015, demonstrates that he understood and had accepted that the Mother would return to Japan with the Child if reconciliation failed. In two exchanges the Father responded to the Mother’s demand to return to Okinawa with “you choice.” Although the Father testified that he did not mean by this response that she could leave with the Child, given the age of the Child, his failure to mention the Child, and the Mother’s role up to that point as the Child’s primary caretaker, the Court rejects this strained interpretation.

Most significantly, the Court finds that the events of October 10, 2015, show that the Father’s decision to keep the Child in the United States was a sudden departure from the Parents’ prior understanding. After agreeing that it was her choice whether to return to Japan, the Father changes position and tells the Mother, at his last possible opportunity, that she cannot take the Child. The timing and tone of these messages, and the Mother’s panicked reaction to them, indicate that his statements were contrary to their prior understanding. Specifically, in the early morning hours of October 10, 2015, the Father definitively states: “See. You talk before, go back ..Okinawa Monday. So ok. Me no happy. But, you choice. I love you very much. Good night.” Yet, shortly before they were to leave for Maryland and after conferring with the Grandmother, the Father suddenly, tells the Mother that she cannot take the Child back to Okinawa, and that the Child must stay with him. The Mother’s terrified reaction to these texts, specifically grabbing the Child and fleeing down the street, convince the Court that this was the first time the Father had expressed any intention of keeping the Child in the United States, or otherwise informed the Mother that he would not agree to let her take the Child back to Japan. This series of events shows that after the Father’s hopes of reconciliation ended, the Father discussed the matter with the Grandmother,. and only then developed the idea of keeping the Child in the United States.

Based on the foregoing, the Court rejects the Father’s contention that the United States is the Child’s country of habitual residence, and finds that the Mother has established by a preponderance of the evidence that the Child was habitually resident in Japan prior to the retention. While the Parents’ may have agreed to live permanently in the United States prior to the Child’s birth, this arrangement ended months before the Child was born. The Mother, pregnant with the Child, and with the Father’s consent, had abandoned the United States. Indeed, the Father agreed to, and by his own testimony, 'facilitated the Mother’s return to Japan, fully aware of her threats to divorce him and never let him see the Child. Although the Father may not have been happy with this turn of events, he nonetheless agreed to her departure and did so without any reasonable expectation that the Mother would ever return with the Child. Thus, at that point, although perhaps lacking perfect consensus, the Parents had. a settled mutual- intent that the Child would stay in Japan indefinitely. See Ruiz, 392 F.3d at 1253. While the Parents later began entertaining the idea of a reconciliation in the United States, the relationship was unstable and they both anticipated that absent a successful reconciliation, the Child and Mother would return to Japan. Significantly, this is not a case where one parent held private, unexpressed, reservations about a move. See Ruiz, 392 F.3d at 1257 (distinguishing Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995) where it was unclear whether or when the mother expressed her private reservations about the move). The Father was well aware of the Mother’s ' requests for divorce, her mercurial feelings, and her overall uncertainty about their marriage. Because the Father agreed to let the Mother return to Japan under the circumstances described above, and merely persuaded her to attempt a reconciliation in the United States with the understanding that she would return to Japan with the Child if it did not work out, the Court concludes that the Child’s habitual residence is Japan, and the Parents’ intentions regarding the October 2015 trip were in no way sufficiently “settled” to amount to a change in habitual residence.

ii. Wrongful Retention

Respondents maintain that1 even if the Child’s habitual residence is Japan, Petitioner cannot satisfy her prima facie burden to show a wrongful retention. As stated above, Article 3 of the Hague Convention specifies that a retention is wrongful where:

a) it is in breach, of rights of custody attributed to a person.. .under the law of the State in which the child was habitually resident immediately before the.. .retention; and

b) at the time of ... retention .those rights were actually exercised, either jointly or alone, or would , have been so exercised but for the ... retention.

Hague Convention, art. 3. It is the Mother’s burden to establish a wrongful retention by a preponderance of the evidence. See 22 U.S.C. § 9003(e)(1)(A). The Convention broadly defines “rights of custody” as. “rights relating to the care of the person of the child and, in particular, the right to determine • the child’s place of residence.” Hague Convention, art. 5. The Perez-Vera Report on the Hague Convention explains that: “[tjhose relationships [which the Convention seeks to protect] are based upon the existence of two facts, firstly, the existence of rights of custody attributed by the State of the child’s habitual residence and, secondly, the actual exercise of such custody prior to the .child’s removal.” See Elisa Perez-Vera, Explanatory Report: Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session 426 (1980) (Perez-Vera Report) ¶ 64. Here, it is undisputed that because the Parents were still married at the time of the retention, they shared joint custody rights, including the right to determine the Child’s place of residence, under Japanese law. Moreover, the Father does not deny that the Mother was exercising her rights of custody at the time of the retention. As such, this case appears to fall squarely within the type of custodial relationship the Hague Convention seeks to protect. gee Lops v. Lops, 140 F.3d 927, 936 (11th Cir. 1998) (“The removal of a child- from the- country of his or her habitual residence is ‘wrongful’ under the Hague Convention if the petitioner ‘is, or otherwise would have been, exercising custody rights to the child under that country’s law at the moment of removal,’” (internal footnote omitted) (quoting Friedrich v. Friedrich, 78 F.3d 1060, 1064 (6th Cir. 1996)).

Nonetheless, the Father maintains.that his retention of the Child did not “breach” the Mother’s custody rights within the meaning of the Convention because his actions do not constitute a “violation” of the Mother’s custody rights under Japanese law. Specifically, the Father offérs expert testimony that in Japan, when parents have joint custody rights, one parent’s decision to unilaterally take his or her child from the other parent does not “violate” the other parent’s rights under Japanese law. According to the Father’s Japanese law experts, married, parents generally do not ;have “rights of custody” that can be enforced against each other. Specifically, Japanese attorney Eriko Mat-suno testified that absent “an agreement between the parents or a court order, a parent can exercise parental authority over a child to the exclusion of the other parent,” and-Japanese courts would normally not consider this exclusion- to be “unlawful.” See Resp.’s Ex. 97: Declaration of Eriko Matsuno, Esq. (Matsuno Decl.) -¶ 18; see also id. ¶ 14 (“[A] parent can exercise parental authority over a child to. .the exclusion of the other parent without violating any ‘rights’ of the excluded parent.”); Resp.’s Ex. 93:. Declaration of Colin Patrick Alan Jones (Jones Decl.) at 4 (“[T]o my knowledge there are no provisions of Japanese law that clearly-define the taking or retention of a child or denial of access as between married parents to be a crime, or otherwise unlawful without special circumstances being applicable, such, as the existence of a court order, the use of force or danger -to the child.”). According to Matsuno, the remedy for the left-behind parent in such a situation is to seek a court order, and while a Japanese court may order the return of the child, this is “not because the judge finds the abduction is violating the rights of the left behind parent.” See Matsuno Decl. ¶ 18. Thus,