In re the Marriage of: James Edward Cook, II, petitioner, Respondent,
Hitomi Arimitsu, Appellant.
County District Court File No. 27-FA-15-499
Victoria M. B. Taylor, Crossroads Legal Services, St. Paul,
Minnesota (for respondent)
D. Metzger, Metzger & Nyberg, L.L.C., Minneapolis,
Minnesota (for appellant)
Considered and decided by Peterson, Presiding Judge; Cleary,
Chief Judge; and Reyes, Judge.
Under the Uniform Child Custody Jurisdiction and Enforcement
Act, a court has home-state jurisdiction to make an initial
child-custody determination if the state was the home state
of the child within six months before the commencement of the
proceeding, and the child is absent from the state but a
parent or person acting as a parent continues to live in this
state. Further, if a child is not in what would otherwise be
the child's home state, the six-month period within which
a parent can commence a custody proceeding in the state does
not begin to run until that parent has reason to recognize
the permanency of the child's absence from the state.
Substantial compliance with the notice requirements of Minn.
Stat. § 518D.305 (2016) is sufficient to allow a
Minnesota district court to confirm the registration of a
foreign custody determination.
Hitomi Arimitsu, who currently lives in Japan with the four
children she shares with respondent-father James Cook,
asserts that the district court erred in ruling that it had
subject-matter jurisdiction over the parties'
child-custody dispute. Mother argues that (1) the successor
district court judge in this case should not have reviewed a
ruling by a predecessor district court judge that it lacked
subject-matter jurisdiction to address child custody; (2) the
district court lacks subject-matter jurisdiction under the
Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA) to hear the parties' custody dispute; and (3)
there was no proper registration of an order of a Japanese
court in the Minnesota District Court (district court). We
conclude that the district court did not err in its rulings.
Therefore, we affirm.
parties married in 1998 and had twins in 2002 and again in
2008. In May 2014, they listed their home for sale. In July
2014, in preparation for a trip mother and the children were
to take to Japan, the parties signed an agreement stating
that mother would return with the children by August 29,
2014, after which mother and the children left for Japan.
July 2014 was the last time the children were in Minnesota.
mid-August 2014, father agreed that the children could stay
in Japan for an unspecified additional amount of time, but
not indefinitely. In October 2014, father visited the
children in Japan. In January 2015, father filed a summons
and petition in district court to dissolve the parties'
marriage. Father's summons and petition were served on
mother on April 27, 2015. At a July 23, 2015 initial
case-management conference (ICMC), the district court asked
the parties to address whether, given the children's time
in Japan, the district court had subject-matter jurisdiction
under the UCCJEA to address child custody.
August 7, 2015, father applied under the Hague Convention of
25 October 1980 on the Civil Aspects of International Child
Abduction (the Hague Convention) for aid in getting the
children returned to the United States. Twelve days later,
father started Hague litigation in Japan, asking the Japanese
court to return the children to the United States.
October 19, 2015, the district court filed its order arising
from the ICMC, ruling that, under the UCCJEA, Minnesota
lacked subject-matter jurisdiction to address custody because
Minnesota was not the children's home state. The district
court acknowledged that, under the UCCJEA, a child's
temporary absence from a state did not mean that the state
stopped being the child's home state, but concluded that,
on the then-existing record, the absence of the children from
Minnesota did not constitute a temporary absence. The
assigned judge subsequently retired and, in May 2016, the
case was assigned to a successor judge.
October 30, 2015, in the Hague litigation, a Japanese court
ruled that the parties' younger twins, but not the older
twins, should be returned to the United States. Both parties
appealed this ruling, and, on January 28, 2016, a Japanese
court ruled that all four children should be returned to the
United States. Mother appealed that ruling, but her appeal
was denied. Mother did not return any of the children to the
United States. Instead, in the Japanese courts, she
challenged father's attempts to enforce the January 2016
Hague order requiring the children to return to the United
September 2016, father moved the district court to reassert
jurisdiction over the question of child custody and to
enforce the January 2016 Hague return order. By order, the
district court granted these motions. The district court
found, based in part on what the parties and their attorneys
said about Japanese law, that Japanese courts were precluded
from dissolving the parties' marriage and from addressing
custody for four reasons: (1) the pendency of the Hague
litigation; (2) the dissolution proceeding pending in
Minnesota; (3) father had not abandoned the family and his
whereabouts were known; and (4) the parties were still
moved the district court for amended findings, essentially
asking it to reverse the December 2016 ruling reasserting
jurisdiction over the question of child custody. A hearing on
mother's motion occurred on February 10, 2017.
after that hearing, a Japanese court filed an order ruling
that the January 2016 Hague return order should not be
enforced because (1) the children "refused strongly to
be returned to the U.S.[;]" (2) father's home in the
United States had been foreclosed and the redemption period
had expired without father redeeming the home; (3) father
lacked the ability to provide the children with a stable
environment in the United States; and (4) mother cannot
provide the children with a stable environment in the United
States because "she doesn't have a basis to live in
the U.S." Six days later, father's Minnesota
attorney sent a letter to the district court, stating that
father was appealing the Japanese court's February 2017
order filed March 24, 2017, the district court found mother
in contempt of court for not returning the children to the
United States and set purge conditions. On April 4, 2017, the
district court filed an order denying mother's motion for
amended findings, and ruling, among other things, that (1)
the district court had authority to reconsider the
jurisdictional ruling in the October 2015 order; (2) despite
the February 2017 order of the Japanese court, Minnesota
currently has subject-matter jurisdiction to address custody