Jeffrey and Yuko are the parents to two children. Jeffrey and the children resided in Illinois, and Yuko resided in Japan. In the parties’ 2013 custody order, the children were permitted summer access with their mother in Japan if three conditions were met: (1) Japan became a signatory to the Hague Abduction Convention and “adopts the Hague Convention in full;” (2) Japan is not listed as not compliant or as demonstrating patterns of noncompliance or as a country with enforcement concerns in the U.S. Department of State’s annual compliance report; and, (3) Yuko posts a bond of $25,000 immediately before the summer visit to Japan.
These provisions remained in place through additional modifications to the custody order, until Yuko filed a modification suit in Illinois in March 2021, where she sought to have the children travel to Japan for Summer 2021 because all conditions had been met. At the time of her motion, the children were almost 17 and 14. They apparently expressed a desire to visit with Yuko in Japan. Further, she had been unable to travel to the United States during COVID because of travel restrictions. Jeffrey opposed the motion on the basis that there were still significant restrictions due to COVID and Japan’s slow vaccine rollout that made Summer 2021’s travel difficult, if not impossible. He proposed, instead, a Winter 2021 trip to Japan.
The court modified the order vacating Yuko’s bond requirement, but requiring her to pay the children’s travel costs up front and be reimbursed by half upon the children’s return to Illinois. The court also permitted Yuko to have the children in Japan for 4 weeks in Summer 2021, as well as for 10 days in Winter 2021. The judge also expanded summer time to six weeks beginning in Summer 2022. Jeffrey appealed, and the order was stayed.
Among other arguments, Jeffrey argued that there was no material change in circumstances, and that his due process was violated when the court permitted the children to go to Japan during Summer 2021 in that it reallocated decision making authority for the children’s health decisions. The court, however, found that an unforeseeable pandemic, coupled with the international nature of the family’s circumstances, is a material change. It further found that with the material change, it was permitted to adjust/modify the custody order in the children’s best interests. Even though Japan has quarantining periods and low vaccination rates, the court was within its purview to adjust the schedule, accounting for these concerns.