Archive for February, 2012
I am writing in response to a series of articles in the Japan Times about children being raised by relatives after the tsunami. First, I would like to say that I feel for all of the people who lost their lives in the tsunami disaster in March of 2011. It is was a tragedy for so many. Children, parents, grandparents, and relatives were left to cope with unprecedented loss. However, I am writing about the use of a particular word and that word is “orphan”.
In one story the father and mother both died in the tsunami (very tragic). In the other 2 stories it appears the fathers were never in the picture. One story mentions divorce and the second story never mentions the father at all. Neither of these stories elaborate on why the father was out of the picture. Was it his choice to leave? Did the mother refuse to let her ex-husband see his son? If the latter is true then we could say the mother orphaned the boy because she cut off all contact with his father. (In my opinion one story implies that the loss of one parent makes you an orphan)
Perhaps the father chose to leave. He may or may not have wanted to contact his son any longer. If this is true then we could say the father orphaned his son.
In my personal opinion it is better to say that Japanese policy orphans children. When people divorce in Japan only one parent is given custody. Due to this policy thousands of children become orphaned every year. That is, thousands of children loose contact with one parent every year due to divorce.
According to these articles if one parent dies then you are an orphan. I feel an orphan is a child who has experienced the death of both biological parents. (This is true in 1 of these 3 stories). Two of these children presumably have biological fathers out there and perhaps extended family that would like to help out. When I began to write this article my intention was not to undermine the loss/death of a parent, child, or relative. My intention was to underscore the importance of family. Japanese policy does not encourage nor allow children to remain in contact with extended family after divorce. Children are “orphaned” due to outdated laws and bureaucratic complacency. If Japanese policy allowed for joint custody, these children would still probably have a father and grandparents on the father’s side of the family that could help raise and support these children. Children are the foundation of our future. The more love children receive from extended family the better. I really hope bureaucrats and politicians wake up and draft laws that allow children to see both parents. The future of Japan depends on it.
To read the articles, please click on the links.Read Full Post | Make a Comment ( None so far )
More stories and more news programs are popping up these days. Japan is moving toward signing the Hague. Unfortunately, they have already built in loopholes so that no children will have to be returned from Japan to their habitual residence. Parents within Japan are also working hard to get legislation passed that will allow children to meet with both parents. The media has been covering more stories related to these issues. While these stories are often a bit slanted they are never the less making it into the news. More people are slowly becoming aware of the problems surrounding the family courts and their ineffectiveness to deal with custody issues. Below are 4 links, 2 focus on the Hague and the other 2 are related to kids not being able to see both parents.Read Full Post | Make a Comment ( None so far )
Kyodo Feb, 26th
Police arrested a 27-year-old man Saturday on suspicion of assaulting his girlfriend’s 4-year-old son, resulting in the boy’s death.
Ryuji Kawabe beat the boy, Hayato Narita, in the face and abdomen Friday afternoon at his apartment in Tokyo, the police said.
The boy was taken to a hospital in the evening after his 22-year-old mother phoned for an ambulance.
“I beat him because he didn’t eat his lunch,” Kawabe allegedly told the police. The mother was reportedly at a coin laundry at the time. The police said an autopsy would be performed.Read Full Post | Make a Comment ( None so far )
Feb. 20, 2012 – TOKYO —
The number of reported child abuse cases in 2011 was a record 384, including 39 deaths, the National Police Agency said in a report. Of the 39 fatalities, 10 were infants younger than one year old.
The NPA said the number of abuse cases was 32 more than in 2010, but acknowledged the number could be greater as many cases most likely went undetected, NTV reported. In most cases, the child abuse was reported to police by hospitals after one or both parents sought treatment for their child.
The NPA said sexual abuse accounted for 96 of the cases. Other forms of abuse documented by the NPA included “neglect,” in which 17 children were not fed by their parents, and abandonment after birth, NTV reported.
Of the assailants charged by police, 33% were the children’s natural fathers, 20% were stepfathers and 29% were the mothers, the NPA said.
Feb. 18, 2012 OKAYAMA —
Police said Friday they have arrested a 21-year-old man for pouring boiling water on his girlfriend’s 4-year-old son at their apartment in Okayama.
According to a report on NTV, the incident occurred on Tuesday just after 12 noon. The man, identified as Kota Kamiyama, became angry with the boy after he drank juice without asking for permission, police said. Kamiyama then allegedly threw a cup of hot water on the boy, scalding him from his shoulder to his lower back.
Police say Kamiyama, who is unemployed, is also accused of punching and head-butting the boy’s 25-year-old mother, NTV reported.
Feb. 13, 2012 KOBE —
Police said Monday they have arrested a 39-year-old woman for the alleged murder of her five-month-old baby son in Kobe.
According to police, the suspect, who has been identified as Yoriko Sugino, works as a cabin attendant for All Nippon Airways (ANA). She was on maternity leave and living with her mother, father and newborn baby in an apartment in Higashinada Ward, while the baby’s father lived and worked in Tokyo, NTV reported.
Police say Sugino met her mother for breakfast on Sunday at around 10 a.m., without her son. According to police, Sugino’s mother asked her where her baby was, at which point she reportedly said she had strangled her baby, NTV reported.
Sugino’s mother then contacted the police and the child was taken to a nearby hospital where he was pronounced dead.
During police questioning, Sugino was quoted by police as saying she didn’t enjoy being a mother and that she started to dislike the idea of raising her baby, NTV reported.
Japan TodayRead Full Post | Make a Comment ( None so far )
By Leila Elmergawi
I was about four years old when one day my father dressed me up in nice clothes and took me to my grandparents’ house. At my grandparents’ house, there was a beautiful woman who I didn’t know and when my brother saw her he ran to her and hugged her. My father told me that this woman was “my mother!”
My mother talked to me in words I did not understand, as I couldn’t speak English. She tried to hug me but I got scared, started crying, and ran away. My father tried to bring me back to the room and told me it was okay. He told me that I had to be polite and come back to spend some time with my mother, who had come all the way from the United States to see me (I was in Egypt then). Finally I went to spend time with her. Since I couldn’t understand what she was saying to me, the toys that she gave me were the only thing that made me smile. This was the last time I saw my mother for a long time.
Right after this, I started paying attention to conversations between my father and his family about “abduction,” “the kids’ mother,” “leaving the country,” “lawyers,” and “U.S. embassy officers.” I had no idea what all that meant. My father told me that he had abducted me from the United States, where my mother is from, and that he would not allow my mother to see me again because she was trying to take me away from him. We lived in a state of fear for a few months until one day we left the country.
We lived in three different countries, traveling from one place to another hiding from my mother and the American authorities. In the very beginning, I had feelings of anger and resentment towards “my mother” because I had to go through all this. I loved my father very much and didn’t want to be taken away from him. Later on, as I grew months and years older, these feelings of anger and resentment were mixed with feelings of abandonment and sadness. I wished I could see my mother. I was jealous of all my friends who lived with their mothers and I wished I knew mine. The only thing I knew about my mother then was her first name and a fading memory of the day I saw her, and I dared not ask about anything else.
I never knew what it was like to have a mother. Anytime I read children’s books, instead of wondering like other children what fairies looked like, I wondered how the characters in the books felt about having mothers. I always thought that having a mother must be the most wonderful thing in the world. At the same time, songs about mothers and Mother’s Day were my worst enemies. I refused to think that my father, whom I deeply loved, and still do, and who I knew loved me very much, would do anything to hurt me. I always thought that there must be a very good reason why he had abducted me from my mother. However, I always felt sad and incomplete, and I blamed it all on my mother.
I lived with these mixed feelings towards my mother until I was 13 years old, when I found out that my mother was able to get in touch with my brother and that he had been talking to her. I became very angry with him. I felt angry because I felt that he had betrayed my father and wasted all the years we had lived hiding in “exile,” which is how we felt at the time. I went to my brother’s room one day. He was talking to my mother on the phone and he said she wanted to talk to me. I reluctantly held the phone and heard her voice for first time. She said that she had been looking for me for years and that she was happy to finally know where I was. I could speak some English then and I understood what she said, but all I could do was cry and I could never say a word back.
I was torn for days and months after that. I wished it wasn’t up to me to make the decision whether to talk to my mother or not. I also felt I was betraying my father. If my father had known what was going on then and had asked me if I wanted to meet my mother, I would have said “no” to avoid hurting his feelings. It took a long time before I could even consider accepting my mother into my life and I felt that I couldn’t see her. She was just a stranger to me after all. Because of her patience and persistence, however, I finally agreed to see her. She came to Egypt and I sneaked out of my father’s house to see her for the first time in many years.
However, this story is not about me. I am a 26-year-old adult now. I have been in contact with my mother ever since I saw her in Egypt 12 years ago and I spent every summer with her when I was in college. Despite all the emotional distress I lived through as a child after I was taken away from my mother, and all the agony and suffering that I endured in silence, I am lucky! I now know my mother and she is a big part of my life as I always wished her to be. Nothing will bring back the years I lived without her in my life, but I don’t know what kind of person I would have been today without my mother.
This story, however, is about the hundreds of children in Japan who wake up every morning with the same feelings of agony that I felt growing up, deprived of having one of their parents in their lives. I was shocked to learn about this fact when I was in Japan doing an internship at the American Embassy in Tokyo last year. I also learned that Japan has actively engaged in talks to study the consequences of signing the Hague convention to prevent further cases of international parental child abduction to and from Japan.
However, it shattered my heart to learn that the hundreds of children who have been abducted to Japan in the past may not be returned to their homes or ever see their other parent again until they are adults. They will have to grow up with the agony I felt, suffering everyday and unable to do anything about it. My mom had been looking for me for years and we were both lucky she finally found me. Some of the left-behind parents that I met in Japan are close to losing hope of ever finding their abducted children. I wish I didn’t have to sneak out of my father’s house to see my mother when I was a teenager. I hope the system in Japan will have more options for these many children who were abducted to reunite with their parents and end their suffering without having to sneak out of their homes.Read Full Post | Make a Comment ( 1 so far )
After years of international pressure, Japan is finally moving to sign the Hague Convention on child-custody disputes.
The government plans to propose new legislation to the Diet in March so that it can sign the treaty.
The United States and Europe have been particularly critical of Japan’s foot-dragging on the issue.
Still, it remains unclear whether the bill will be passed in the current Diet session due to persistent opposition within both the ruling and opposition parties. Submissions of key legislation could also take precedence.
The bill was based on proposals submitted to the justice minister by the Legislative Council, an advisory panel, on Feb. 7.
Among the Group of Eight advanced nations, only Japan has yet to sign and ratify the Hague Convention on the Civil Aspects of International Child Abduction.
The convention is designed to deal with cross-border “abductions” by parents of broken international marriages.
It requires a parent to return a child to the nation of habitual residence if the child is under 16 and taken to another country without the consent of the ex-spouse.
The convention stipulates that the parents of the child must settle the custody dispute in the country to which the child is returned.
The panel’s proposals outline procedures that allow, among other things, a family court to rule whether a child must be returned to the country of habitual residence after a request for the child’s return is made.
The court’s discussion of the case takes place behind closed doors.
But the Japanese parent can appeal the ruling to a high court and the supreme court.
If a Japanese parent does not comply with the ruling, court officials can forcibly remove a child to return him or her to the country of former residence.
The outline also spells out cases in which the Japanese parent does not need to return the child:
When a child has adjusted to a new environment after spending a year in Japan;
When the other parent calling for the child’ return did not actually take care of the child;
When the other parent gave consent to the former Japanese spouse taking the child to Japan;
When a child refuses to return to the country of former residence; and
When a child is at great risk of being tormented, both mentally and physically, as a result of abuse by the non-Japanese parent and abuse of the Japanese parent by the foreign spouse.
The latter refers to instances when the Japanese parent returned to country of former residence with the child at the request of the former spouse. It also envisages the failure of a foreign parent to look after the child due to a history of domestic violence, drug addiction or alcohol abuse.
The Foreign Ministry is pressing for passage of legislation, calling it Japan’s pledge to the international community.
In a summit with U.S. President Barack Obama in November, Prime Minister Yoshihiko Noda expressed his resolve to join the convention after submitting a bill to the Diet session that began last month.
But the ruling Democratic Party of Japan and opposition parties are divided over some clauses of the draft bill.
The government needs the cooperation of the opposition camp to win Diet passage of the bill. However, the two Diet chambers are controlled by differing blocs, and the opposition camp is stepping up its confrontational approach to the Noda administration with respect to policy issues.
The bill could take a back seat in Diet discussion because the government is now focusing on bills to raise the consumption tax rate, analysts said.
By MANABU SASAKI / Staff Writer Asahi Shimbun
A woman who has not seen her two children since March, when the Great East Japan Earthquake struck, is starting to give up hope of ever seeing her sons again.
The woman’s apartment still contains the brand-new jacket and school bag that her older son would have used if he had entered elementary school in April. The mother, a civil servant, also finds herself searching for her two sons in her apartment when she returns home from work, despite knowing deep inside that her home is empty.
But it wasn’t the quake or tsunami that separated her from the boys, aged 5 and 7.
“It is like a kidnapping,” said the woman, who lives in the Tokai region.
The boys are now in the United States with the woman’s American husband, who has refused to return to Japan, citing radiation fears. He has also filed for divorce.
There is very little she can do to win custody of the children because the Japanese government has not passed the necessary legislation to join the Hague Convention on the Civil Aspects of International Child Abduction. Under the convention, if a parent illegally flees with a child under 16 to another nation, the child has to be returned to the former nation of residence.
Tokyo signaled its intention to ratify the treaty after a number of high-profile cases involving Japanese mothers taking their children to Japan without the consent of their foreign ex-spouses or in defiance of court orders.
But since the Fukushima nuclear accident started in March, Foreign Ministry officials have received a number of inquiries from Japanese parents whose spouses have left Japan for their home nations with their children in tow, using the accident at the Fukushima No. 1 nuclear power plant as an excuse not to return.
About the only thing ministry officials can do is pass on lists of lawyers in the foreign nations where the spouse has gone to.
“We feel sorry for the parents because this is a form of negative publicity from the nuclear accident,” a ministry official said. “We hope the couples will hold calm discussions based on objective information about radiation.”
The Tokai woman’s husband in March took the boys to the United States for what was supposed to have been a one-month visit. But the Great East Japan Earthquake soon struck, and the husband refused to return to Japan, expressing concerns that the sons could be exposed to radiation from the Fukushima nuclear accident.
Daily reports in the United States showed the damage from the quake and tsunami. Nuclear experts often appeared on TV citing the dangers of the radiation spewing from the Fukushima plant.
The woman used a TV phone over the Internet to talk with her husband and children, trying to convince them that the Tokai region was safe.
But the children, perhaps influenced by their father, also expressed concerns about the danger of waves flowing inland as well as poison in the air.
The husband initially said he would return to Japan once the situation at the nuclear plant stabilized. However, by summer, he had withdrawn about $17,000 from his wife’s bank account and had rented an apartment in the United States.
In November, he filed a lawsuit in the United States seeking a divorce. He did not abide by his initial promise even after the Japanese government declared the situation at the Fukushima plant to be under control.
The woman met her future husband in 2001, when she was studying in New York. They were married the following year.
The husband was still a student, and living in New York was not economically feasible. So the couple decided to move to Japan with the wife working to support the family.
But now, she lacks any assurance of finding a stable job in the United States. She feels the possibility is low that she would be granted custody of the children under such conditions.
She has consulted with a U.S. office handling inquiries about abducted children. If Japan had joined the Hague Convention, the United States would have been obligated to return her children to Japan as a member of the convention, the office told her.
But Japan has not yet joined, leaving her and her children uncovered for protection under the convention.
She also consulted a lawyer in the United States because she felt the only way to get her children back was through a lawsuit of her own. But she was told that U.S. courts looked at how the children were being raised over the most recent six months. That would put her at a disadvantage because she had been separated from her children since the natural disasters.
Having allowed her children to remain in the United States because of radiation fears ended up working against her.
A court case in the United States can be time-consuming and costly, and she has no guarantee of winning.
Through letters and phone calls, she repeatedly tells her two children that they mean everything to her, but she has no idea when she may see them again.
“I hope the government joins the convention as soon as possible to prevent parents from successfully fleeing with their children,” she said.
Officials said there have been cases of lawyers recommending that parents flee Japan with their children because there is a good chance they can get away with it.
“Custody battles with a foreign nation should be resolved through international rules after joining the Hague Convention,” said Mikiko Otani, a lawyer who specializes in divorces among international couples. “It is extremely difficult for an individual to find a lawyer in a foreign nation specializing in such matters and proceeding with legal action.”
She also said many parents in Japan face difficulties because there are few lawyers knowledgeable about international divorce cases.
“There are risks involved in international marriage because of differences in laws and cultures,” Otani said. “There are also major differences in thinking on divorce and custody, so there is a need to be aware of the need for a basic understanding of the related laws.”
Outline of child custody bills approved Ministry to draft new regulations that would come into force after Japan signs Hague convention
A Justice Ministry panel on Tuesday gave the green light for the ministry to write bills for new domestic laws in preparation for signing the Hague Convention on the Civil Aspect of International Child Abduction, which theoretically promises other countries that Japan will try its utmost to return abducted children.
Critics, however, are not too optimistic because whether children will be returned to their original countries will depend largely on how Japan’s family court judges interpret any new laws.
The United States and countries in Europe have urged Japan to sign the convention, and have criticized Tokyo for letting a Japanese parent get away with abducting his or her children from a spouse in failed international marriages.
Japan, on the other hand, has argued it must protect Japanese parents if they are victims of domestic violence.
The ministry’s Legal Council on Tuesday approved an outline of the bills submitted Jan. 23 by a subcommittee of the council.
The ministry hopes to submit the bills to the Diet by the end of March, said Osamu Kaneko of the Justice Ministry’s Civil Affairs Bureau. Whether and when the bills will be enacted will be up to the Diet.
According to the outline, if a Japanese parent takes children from his or her partner in another country that has signed the Hague treaty and the partner files a lawsuit with a Japanese family court, the court must basically order the return of the children.
However, it also stipulates the court must not order the return of children if one of six criteria are met.
The criteria are that the request for the return is filed more than a year after the abduction and the children are used to the current living environment; the plaintiff did not hold custody of the children at the time of the abduction; the plaintiff approved of the “abduction” before or after it happened; the return damages the children mentally or physically; the children are old enough for reasonable thinking and refuse to be returned; and the return goes against a person’s basic human rights.
The proposed legislation would give court officers a great deal of leeway in returning children following a court ruling.
For example, if a Japanese parent refuses to accept the return order and keeps the child or children at his or her home, the officers can “do what is necessary to open the door,” implying that the officers can break down the door if necessary.
The return of children, however, would not necessarily mean a victory for non-Japanese parents. It would only mean family courts in the countries where the child or children were abducted will have rights to determine custody and other details of their legal status.
Many countries allow dual custody and thus divorced couples would typically settle with arrangements such as that children stay with a Japanese parent during the school year and a non-Japanese parent during vacations.
On the other hand, Japan allows only one of the divorced parents total custody and it is difficult for a non-Japanese divorced parent to win custody, or parental rights as it is known in Japanese legal terms. Those without parental rights hardly ever get satisfactory visitation rights.
After Japan said in May that it would sign the convention, the Justice Ministry and the Foreign Ministry have worked on changes to domestic laws. The Justice Ministry will compile the two ministries’ drafts before it submits the bills to the Diet.
There are 87 consignee countries to the Hague convention, including the U.S., Canada, most European nations and Australia.
Colin P.A. Jones
Professor, Doshisha University Law School
(Photo by Shinchosha)
Japan has developed a growing reputation as a haven for international parental child abduction. Major media outlets in the United States and other countries have brought attention to a number of recent cases of children being unilaterally removed by a Japanese parent from the United States before or after divorce, often in violation of American law and court orders.
Attempts to achieve the return of children taken to Japan through the Japanese legal system tend to be unsuccessful. As a result, some children who were born and raised in the United States have lost all contact with an American parent and other relatives, American friends, and the American part of their heritage as a consequence. The apparent lack of legal remedies for abduction in Japan is due to a number of factors that are discussed in more detail below.
Child abduction as more than just an “international” problem
From the outset it is important to understand that most of the factors which prevent the return of children taken from other countries also affect cases arising entirely within Japan, including some involving Americans married to Japanese nationals and living in Japan, and even the occasional case where both parents are foreign residents of Japan. In these strictly domestic cases also, marital breakdown all too often results in parents losing all contact with their children, notwithstanding the involvement of Japanese courts.
In other words, even though international cases tend to receive more publicity, they merely reflect structural issues in the Japanese legal system which have the effect of limiting the legal remedies of Japanese and non-Japanese parents alike. Thus, just as U.S. and other diplomats have sought change in the way cross-border abductions are dealt with by encouraging Japan to join the Hague Convention on the Civil Aspects of Child Abduction, a variety of Japanese parents’ rights groups have been seeking better protection of the parent-child relationship after divorce by lobbying for amendments to Japanese family law.
Despite the catastrophic earthquake and tsunami of March 11, 2011 and subsequent nuclear crisis in Fukushima, there are encouraging signs that Japan will soon move towards ratifying the Hague Convention. In May of 2011 the Diet also made encouraging amendments to its domestic laws relating to visitation after parental separation. Since these amendments have not yet taken effect (and may have a limited impact), this article will discuss both the law as it was – and had been for decades, as well as the nature of these changes.
The role of law in Japan
The Japanese legal system is based heavily on foreign models – German and French codes and institutions in many instances, but the United States as well in the case of its constitution and many areas of business law. Indeed, it is possible to describe Japanese family law and how Japanese courts resolve child custody issues in terms that make it seem quite similar to the United States or other Western countries. However, the law in Japan is much more “top down” than it is in the United States, where many important doctrines have been built through the ground up through litigation. By contrast, in Japan the law is more likely to be a medium for expressing and exercising authority, and judges (authority figures themselves) are less likely to question the exercise of that authority. The top-down character of Japanese law can be seen in statutes and procedural regimes which preserve maximum flexibility for judges and other government officials in terms of what they may do, while limiting the range of things that they must do.
Is parental child abduction a crime?
U.S. citizen parents whose children who have been abducted to Japan are likely to be told by Japanese officials that under Japanese law it is not a crime for parents to “abduct” their own children. However, there have been instances of Japanese and foreign parents being arrested, even convicted – for kidnapping their own children. Article 224 of the Japanese Penal Code describes the crime of “abduction of a minor” in very sparse terms: “[a] person who kidnaps a minor by force or enticement shall be punished by imprisonment with work for not less than 3 months but not more than 7 years.” An American lawyer reading this would probably seek more information on how the terms “kidnap,” “force,” and “enticement” are interpreted and would probably look to case law for guidance. But court precedents are not likely to be as useful for interpreting statutes such as this, at least not to the same degree as they would in the United States.
As a result, both the characterization of parental abduction as a non-crime and the arrest of some parents for criminal abduction can co-exist as “correct” interpretations of Japanese law. An abduction which disrupts public order (a father grabbing his children off the street) may be treated as a crime, while those which do not (a mother getting on a plane or a train with her children to go live with her parents, or merely refusing to return to the United States after a visit to Japan with the children) probably will not. Japanese law enforcement authorities have a basic policy of not getting involved in “civil disputes” but also wide discretion in deciding if a particular dispute is a civil one or not, meaning that the most important determination about whether a particular case of abduction is a crime or not may be made at the police station rather than the courthouse.
Custody determinations as an administrative disposition
Similarly, with respect to decisions regarding parental authority, custody, and visitation involving children in divorce, there are no statutory guidelines which a court must follow, such as the principle found in U.S. law that frequent and continuing contact between a child and his or her parents after they separate is presumed to be in a child’s best interests. Furthermore, since there is also no Japanese constitutional jurisprudence establishing a fundamental interest in having and raising children or otherwise recognizing a constitutionally-protected dimension to the parent-child relationship, decisions about children made by Japanese judges are essentially a form of administrative disposition made in the absence of law. As discussed below, many of the most important decisions a judge may make about children are likely to be rendered in the form of “decrees” following non-public, non-trial proceedings.
Japanese family court judges thus have tremendous discretion when it comes to making decisions about children and may do so by, for example, completely reversing a foreign custody, refusing to award any visitation to a non-custodial parent, awarding visitation for only a few hours once a year, or ordering the custodial parent to send a few photographs of the child every year in lieu of visitation.
Divorce and child custody as part of a consensual process
In Japan, both divorce and what happens to the children afterwards are presumed in the first instance to be determined through consensual arrangements. Japan’s Civil Code provides for divorce by agreement with judicial divorce being available only when the parties cannot agree and a limited range of grounds for divorce are applicable. Furthermore, unlike in the United States where even a consensual divorce involves court filings and possibly a judicially-approved parenting plan or separation agreement if children are involved, a Japanese cooperative divorce is accomplished by simply filing the relevant paperwork with a local government authority which will reflect the change in marital status and allocation of parental responsibility in the parties’ family registry. Since approximately 90% of divorces are accomplished through this process, courts only become involved in the small minority of cases where parties cannot agree on a cooperative divorce or where there is a dispute over children or other matters arise after divorce, including situations where one parent abducts the child or refuses to allow visitation after divorce.
Under Japanese law, parties seeking a judicial divorce or other judicial relief relating to child custody must first attend family-court sponsored mediation. Mediation sessions take place in a family court mediation room in front of a mediation panel composed of a judge, two mediators chosen by the court, and court personnel. Mediation continues at a pace of about one session a month until the parties agree on a result or the judge decides that further sessions are pointless. Although the court takes the lead in administering the mediation, its primary purpose at this stage is to encourage the parties to agree on a result.
Approximately 8% of Japanese divorces – most of those which are brought into court – are achieved through the mediation process. The remaining 2% are either judicial divorces resulting from litigation commenced after mediation has failed, or divorces by settlement after such litigation has commenced but before a divorce judgment. Therefore, one aspect of divorce proceedings that may be confusing is that there are a variety of procedures which vary depending upon the scope of the court’s involvement and responsibility. There are cooperative divorces which involve no court action whatsoever, mediated divorces and divorces by settlement where the court is involved but not responsible for the result, and judicial divorces where the court is involved and responsible for the final result (technically there are two additional types of divorce which are rare and not discussed in this article). Judicial divorces account for only about 1% of all divorces. These differing procedural regimes are also relevant to child custody proceedings.
Because Japanese law provides for court proceedings which in many cases lead to a result for which the court is not responsible, there may be a significant gap between what U.S. citizen parents expect from family courts and what family courts consider their role to be. A party seeking the return of or at least visitation with a child usually wants the court to “do something” as soon as possible. Since most cases are going to start with mediation, however, the family court may view its role primarily as one of encouraging the parties to agree upon a mediated result. Furthermore, since at the mediation stage the court is supposed to be playing only a supporting role, it may be reluctant to provide interim remedies (including ordering the handover of the child) unless they are clearly in the best interests of the child.
Other aspects of Japanese family law may also come into play at the mediation stage. Although divorce is exceptionally easy in Japan so long as both parties agree to it, obtaining a litigated divorce unilaterally over the objections of one party is exceptionally difficult and time consuming. In addition, just as there is little formal law specifying what should happen to children after their parents separate, Japan’s Civil Code is similarly sparse when it comes to providing for property distribution, alimony, and child support. Accordingly, courts have developed a variety of doctrines to protect the financially weaker party from being divorced on unfavorable terms.
A number of amendments to the Civil Code were made in May 2011, though it is unclear what effect they will have on current family court practice. First, the amendments make it easier for public authorities to temporarily suspend parental authority in cases of child abuse and neglect. Under prior law the only remedy was permanent termination of parental authority. Second, under the amended law, parents seeking a cooperative divorce will be required to provide for visitation arrangements and other forms of contact as well as allocate child-rearing expenses, in each case giving priority to the welfare of their children. If they are unable to do so then a family court may make the determinations in their place. While it may seem a minor change, the fact that visitation is now even mentioned in the Civil Code could be said to represent significant progress, since before this amendment it was nothing more than a judicially-created disposition.
However, it is not clear that courts (as opposed to parents) are required by the new law to make decisions in the best interests of children, or that visitation is presumed to be good for children. Combined with the addition to another part of the Civil Code which imposes upon all parents a statutory duty to act in the best interests of their own children, it is not clear whether family courts will regard the new amendments as being anything other than a codification of their existing practice.
Parental authority and custody
Although determinations relating to children are generally made in the context of divorce proceedings, an important procedural difference emerges if mediation fails. To understand this, however, it is necessary to briefly review the concepts of parental authority and custody. Under Japan’s Civil Code, married parents jointly exercise parental authority over minor children. Parental authority includes both the rights and duties of the parent relating to the care and upbringing of their children, but also the management of the children’s property and the taking of legal actions (such as applying for a passport) on their behalf, or even consenting to the child’s adoption. Because parental authority can be relevant to commercial transactions and dealings with government agencies, it can be confirmed through the family registry system. An extract from a child’s family registry may be required for passport applications or other dealings where proof of the parent-child relationship and the parental authority of the person making the application are required.
Under the cooperative divorce regime, parents simply make a notation on the divorce form as to which parent will retain parental authority over which children after divorce. One significant limitation, however, is that Japanese law does not allow for the formal continuation of joint parental authority after divorce even if both parents agree to it.
Procedurally, court involvement makes custody and parental authority more complicated. This is because it is possible for courts to separate the “care and custody” element of parental authority from the property management/legal representative aspect and award them to different people. Thus, a mother could be awarded custody over the child, who she would live with and raise, while the father would be awarded parental authority (minus the custodial element), which though being reflected in his family registry, would be limited to only the authority to manage the child’s property and engage in legal acts in the child’s name. In reality, this type of split custody is rare. The true significance of a court’s ability to deal with these two elements of parental authority separately is more important for procedural purposes rather than the end result.
Judicial determinations of parental authority are generally only made (or changed) by courts at the time of a judicial divorce following a trial. If divorce mediation fails, the onus is on one of the parties to proceed with divorce litigation. If neither does so the parties will simply remain married under the law but live apart. Parental authority will nominally remain with both parents.
However, with respect to matters relating to the custody portion of parental authority ( i.e., who will live with and raise the child, visitation, child support payments, and whether a taken child should be returned), if mediation fails the court will automatically proceed with making a determination, even if neither party proceeds with divorce litigation. These determinations may also be made (or changed) by courts after divorce, in the case of disputes over visitation after a cooperative divorce, or when a child is abducted to Japan after a divorce has taken place in the United States or elsewhere.
Procedurally this is significant because to the extent they are decided by a judge at all they are likely to be decided through the issuance of a judicial decree after mediation fails. Decrees are issued through “non-trial” proceedings, with very loose procedural and evidentiary requirements. Accordingly, what for most parents is the most important part of the proceedings – the part in which the fate of their children is decided – involves a process which seems like a trial (since there is judicial involvement) yet lacks many of the procedural or evidentiary protections that the average person is likely to expect from a trial.
Decrees can be appealed, and if the case advances to divorce litigation, a judge granting a judicial divorce can also make decisions relating to children ancillary to the divorce. In reality, however, it is probably unlikely that judges will second guess a prior decree on custody issues absent blatant mistakes or a change in circumstances.
In cases involving child abduction or interference with visitation, even a complete “win” in court may prove meaningless. Japanese civil law struggles with the enforcement of judgments in many contexts, but it is a problem that is particularly evident in disputes over children. Japanese courts lack marshals with police-like powers that can facilitate enforcing civil judgments. Similarly, Japanese judges do not have broad powers to sanction or imprison recalcitrant parties for contempt of court. Nor is there a mechanism for courts to require the police to become involved in such cases.
The first step in enforcement of a family court decree may be for a family court to issue a “compliance recommendation.” This may involve further inquiries by a family court investigator to confirm the circumstances behind the refusal of the parent having custody to cooperate with visitation. Even if a compliance recommendation is issued, however, there are no sanctions for non-compliance. In fact, compliance recommendations are considered to be a form of casework that is an extension of the courts’ role as a social welfare institution rather than a judicial one. As such, they have no legal force whatsoever.
In terms of actual legal remedies for enforcement, Japanese civil law does not contain any provisions which deal specifically with enforcing orders relating to the compulsory transfer of a child from one parent to another. One remedy is for the court to impose a non-penal monetary fine on a party who refuses to comply with a court order to return an abducted child or cooperate with visitation. However, this type of “indirect enforcement” may be of limited efficacy against parties who do not have a regular income or identifiable assets subject to forfeiture.
In the case of a court order for the return of a child who is young enough that they can be deemed not to have the capacity to form their own intent, it is also possible to seek “direct enforcement” of the order. This involves a district court bailiff attempting to physically accomplish the return of the child. Although the bailiff may request police accompaniment if there is a fear that the abducting parent may become violent, the police will not get involved if there is no crime. The bailiff himself does not have the power to arrest a non-cooperating parent. Thus, although direct enforcement is sometimes successful, it can also sometimes be frustrated by a taking parent through the simple expedient of stubbornly refusing to let go of the child or even just hiding.
Failing any of these remedies, the final arrow in the judicial quiver is habeas corpus. Based on the ancient common law remedy for unlawful detention by government officials, habeas corpus in Japan is used to order an abducting parent to bring the child to court for an inquiry into why they have been “detained.” A parent who refuses to follow a habeas corpus summons and bring an abducted child to court may be subject to imprisonment and/or penal fines. It is thus the only remedy for abduction available to the judiciary where there is the possibility of criminal sanctions for non-compliance.
While it is not uncommon for left-behind parents to immediately file for habeas corpus for children who have been taken to Japan, there do not appear to be any cases where a Japanese court has found the detention of a child to be “significantly unlawful,” even if it involves the violation of a foreign court order or has resulted in criminal proceedings in that country. There have been a number of cases where Japanese courts have both recognized the validity of a foreign court order awarding custody to the foreign parent while refusing to grant habeas corpus relief.
Domestic violence, legislative amendments, and the Hague Convention
The Japanese government is often criticized for appearing to drag its feet on adopting the Hague Convention. As the above discussion shows, however, meaningful implementation of the convention would involve significant amendments to Japanese domestic law. That this process may require a wide-ranging debate is understandable in a democratic society such as Japan.
In the course of the debate over the Hague Convention, one concern that has been expressed repeatedly is how to deal with situations where a Japanese mother residing abroad unilaterally returns to Japan with her children out of fear of domestic violence in the United States or other countries. While domestic violence is a legitimate policy concern, it is also an issue that can be assumed dealt with adequately through the legal system of the United States or other Hague Convention signatories. While it would be easy to view the concerns about domestic violence as primarily reflecting a lack of faith in the judicial systems of potential treaty partners, domestic violence is also controversial in strictly domestic custody cases. Japanese law defines “domestic violence” in exceptionally broad terms and it is often interpreted even more broadly so that not only physical violence, but verbal abuse, psychological “violence,” and even “economic violence” is sometimes included.
It has been suggested by some in Japan that the Hague Convention be signed, but with implementing legislation providing for exceptions that would prevent the return of children in cases involving domestic violence or abuse. The Japan Federation of Bar Associations has gone further in proposing that any legislation implementing the Hague Convention, if adopted, not only prevent return in such cases, but also if the taking parent would be subject to criminal prosecution if they returned with the child. Given the expansive definition accorded to domestic violence and abuse, it seems possible that virtually any instance of a child being taken to Japan could be characterized so as to fall into this exception. But this involves speculating on legislation that does not yet exist.
As noted in the introduction to this article, recent events in Northeastern Japan will have dramatically shifted the focus of policymakers in Japan. What can be expected in the immediate future in terms of the Hague Convention and further changes to Japanese family law remains to be seen. But natural disasters notwithstanding, Japanese people will continue to get married, have children and, in some cases, get divorced. So long as no changes are made, Japan will also continue to be regarded as a haven for abduction. This would be a sad thing since it is ultimately children – the ultimate resource in Japan, the United States, and everywhere else – who will continue to suffer.
Colin P.A. Jones is a Professor at Doshisha University Law School, a Life Member of Clare Hall, University of Cambridge, and has been admitted to the bar in New York, Guam and the Republic of Palau. He received his A.B. from the University of California at Berkeley, an LL.M. from Tohoku University, as well as a J.D. and LL.M. from Duke University School of Law.Read Full Post | Make a Comment ( None so far )
Feb. 06, 2012 -OITA —
Police said Monday they have arrested a woman for abandoning a corpse after the partial remains of her baby were found in the woods near her house in Hijimachi, Oita Prefecture.
The case received a lot of publicity last September, when the woman—identified as Yuko Emoto—claimed that her 2-year-old daughter, Kotone, had been abducted from a parked car outside a supermarket. Emoto told police she had left her daughter in the child seat in back of her car while she went into the Marushoku Kawasaki supermarket. She said she had been gone about five minutes, and when she returned to the car, her daughter was missing.
Police launched a massive search for the girl, but to no avail.
Police said they asked Emoto to come to the police station for informal questioning over the incident on Sunday, at which time she confessed that the abduction story had been a lie and that she had actually buried the girl’s body in the mountains, Fuji TV reported.
After further questioning, Emoto took police to the forest around three kilometers from her home and assisted officers in the search for her daughter’s remains, a police spokesperson said. Some partial remains were found at around 2:40 p.m. Sunday, which police believe are likely to be those of Kotone, Fuji reported.Read Full Post | Make a Comment ( None so far )
The Yomiuri Shimbun
A woman has been arrested on suspicion of strangling her 6-year-old son in their apartment in western Tokyo, apparently after she became wracked with anxiety, according to police.
The woman, Yuko Numata, later attempted to commit suicide by slashing her wrist, the police added.
Numata, 44, allegedly killed her son, Akihisa, earlier this month at their apartment in a public housing complex in Tachikawa. A police autopsy found the boy had been strangled.
Numata was quoted by the police as saying: “I choked my son on impulse because I suddenly felt an increased sense of anxiety. I tried to kill myself by cutting my wrist.”
Feb. 02, 2012 - TOCHIGI —
A Tochigi court on Wednesday sentenced a 30-year-old woman to 4 1/2 years in prison after she was found guilty of breaking the legs of four babies. The sentence was handed down at the Ashikaga branch of the Utsunomiya District Court. The court heard that Yuko Saotome approached mothers in children’s goods stores and other public places, asking to hold their children and then surreptitiously broke their legs, NTV reported. According to police, the incidents took place between April and May 2010. The court said that Saotome could not be excused of her crimes on the grounds of temporary insanity. The judge went on to describe her actions as “despicable” and added that the crimes were motivated by jealousy at seeing happy mothers. Japan TodayRead Full Post | Make a Comment ( None so far )