The U.S. Supreme Court on Monday declined to hear a Maryland father’s bid to gain custody of his 9-year-old daughter in Japan following the death of her Japanese mother in 2007.
U.S. Navy Commander Paul Toland said he has seen Erika only twice since the summer of 2003, and that as her sole surviving parent, he is entitled to custody.
Erika has lived her entire life in Japan, the last five years with her grandmother. Therefore, the Maryland Court of Appeals found in March that decisions regarding Erika’s custody must be made by the Japanese courts, which have granted guardianship to the child’s grandmother, Akiko Futagi.
“So now we file for custody in Japan (as the Court of Appeals suggested) — which will go nowhere and then we refile for custody in Maryland,” Toland’s attorney, Stephen J. Cullen wrote in an email Monday.
Cullen, of Miles & Stockbridge P.C., had argued that Maryland judges owe no deference to the Japanese court because it awarded the grandmother guardianship without notifying Toland or giving him an opportunity to be heard.
The case is Toland v. Futagi, No. 11-1549.
The Supreme Court justices did not comment on the Maryland Court of Appeals decision they declined to review.
Toland, a Navy commander, was stationed in Japan when he married Etsuko Futagi in March 1995. Erika was born on Oct. 17, 2002.
In 2003, Etsuko Futagi left with Erika and filed for divorce, which the Tokyo Family Court granted on Sept. 29, 2005. The court also awarded her custody of Erika.
Etsuko Futagi died on Oct. 31, 2007. Two years later, Toland filed for custody in Montgomery County Circuit Court as Erika’s sole surviving parent.
That court found it lacked jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act. On March 28, the Court of Appeals affirmed, and Cullen filed a petition with the U.S. Supreme Court.
Futagi’s attorney had urged the Supreme Court to deny Toland’s appeal, saying the decision to grant comity in family law cases properly rests with state courts.
Maryland’s high court considered the due-process arguments and validly deferred to the Japanese court’s award of guardianship, said Judy Dugger, a solo practitioner in Fairfax, Va.
Reached late Monday morning, Dugger said she was “pleased” with the high court’s decision not to review the case. She had not spoken with the grandmother, who was asleep in Japan.
Cullen, though, expressed hope that Japan will sign the Hague Convention on the Civil Aspects of International Child Abduction, which could lead to Japanese acceptance of U.S. jurisdiction in the case.
“And the day Japan ratifies The Hague Convention with the USA, we file an access application,” added Cullen, who practices in Washington, D.C. “We are sticking with Paul for the duration.”