Divorce
Things Japan can learn from Moracco about the Hague Convention
Japan and Morocco are quite similar in some ways. Morroco took some steps recently to become a Hague signatory. It would be wise if Japan followed their lead. Of the 146,408 divorces in Japan in 2009, only 3.6% involved both parents taking part in child rearing. Japan’s system seems to favor sole-custody, but Morocco had a very similar system that valued one parent, usually the mother, under Shari’a law. Although Morocco allowed the father to make important decisions about the child, such as where the mother and child could live and whether the child could travel abroad, all decisions regarding daily functions and routine care were left to the mother, essentially creating a sole custody system, similar to that of Japan. Both systems included matrifocal tendencies. While Japan’s Civil Code typically breaks custody into shinken and kangoken, the Moroccan Code of Personal Status similarly divides custody into hadana and wilaya. Morocco successfully uprooted its custody system and allowed joint responsibility to be established among parents, as one parent was given hadana and the other wilaya. In Japan, the same ideology should be adopted. Instead of granting one parent parental rights and physical custody, efforts should be made to grant shinken to one parent and kangoken to the other to allow for increased responsibility for both parents and bring about an understanding of joint custody.
Second, Japanese courts, or the Japanese Diet, need to establish visita- tion as a fundamental right. One of the key reforms Morocco made to join the Hague Convention was to establish visitation rights. However, these rights were already inherent within the Moroccan system as such meas- ures were implied when Moroccan mothers were prohibited from moving away from the father so that the father could have access to the child. Similarly, in Japan, an understanding of the psychological benefits of visitation on the child is already taking root. Courts have even granted visitation rights in some cases, but have made the rights extremely limited. It is time for Japan to push this notion and make visitation rights funda- mental within the constitutional system.
Third, Japan needs to dissolve its current registration system, or at the very least, modify the system. Allowing a child to be taken off a father’s register when a mother changes her name after divorce, resulting in the loss of parental rights for the father, is abhorrent. The registration system should be discarded completely or altered so that the child’s name will remain under both parents’ registers, regardless of the marital status of the parents. Such changes will bring Japan one step closer psychologically to joint parental responsibility.
Fourth, in order to comply with the Hague Convention, services must be available to ensure the return of children to their habitual place of residence. Like Morocco, Japan should implement law enforcement mechanisms to find abducted children and return the children safely. Fortunately Article 226 of the Japanese Penal Code is already in effect to return abducted children. The Japanese government needs to force Japanese law enforcement officers to comply with Article 226 to ensure abducted children are returned home.
Lastly, before signing the Hague Convention, Morocco entered into specific bilateral agreements to resolve familial disputes with neighboring countries to promote collaboration and global cooperation. In an effort to ease global tension, Japan would be strongly urged to do the same with the United States, the United Kingdom, France and Canada, as these four countries have repeatedly called on Japan to increase efforts to prevent parental abduction.
To read the full article click: Hague Moracco vs. Japan
Hostile Parenting Symposium with Linda Gottlieb and Brian Ludmer
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Dr. Warshak & Wendy Archer Talk about Parental Alienation on Divorce Rescue Radio
Widner Family Law deals with divorce. They have a radio program called “Divorce Rescue Radio” which is on every Sunday night. During this episode they spend a lot of time talking about Parental Alienation.
Dr. Richard Warshak is on this program. The show is full of great information from some very knowledgeable people. You can listen to the program clicking on the link:
http://divorce-rescue-radio-talk-show
The D-Word: Divorce Through a Child’s Eyes on Family Matters
Tara Eisenhard is a child of divorce as well as an ex-wife and previous partner of a divorced dad. From these life experiences came her beliefs that a marriage shouldn’t survive at the expense of its participants, and families should evolve, not dissolve, through the separation process.
Tara considers herself a student of divorce and is passionate about sharing her vision with others. She’s the author of the book The D-Word: Divorce Through a Child’s Eyes and the blog Relative Evolutions. Additionally, she has written for Divorced Women Online, Since My Divorce and Stepmom Magazine.
Click on the link to listen to the show:
http://Eisenhardblogtalkradio
LITA FORD – & NEW SONG ON FAMILY MATTERS BLOG TALK RADIO
Lita Ford has a song on her new album that helps her express how she feels about family, travel, the geographical distance that makes or breaks families and in general, her new music.
Living Like a Runaway is her first CD since she began to manage life on her own. Her life changes prompted her comeback release Wicked Wonderland. Her latest work is closer to the music she wants to create.
But one track, called Mother, is a personal message to her children. Reflecting on her situation, Ford says the biggest lesson she’s learned was that: “If you ever get angry at your spouse, don’t take it out on your kids. Keep them out of it. They don’t need to know. Just let them be kids.”
In this episode you will hear the songs, MOTHER, PLAYING WITH FIRE, STILL WAITING AND GOTTA LET GO.
Click on the link to listen to Jill and Judge Michelle talk with Lita Ford: http://Litaford blogtalk
Read Full Post | Make a Comment ( None so far )Japan Timesに私の記事が掲載されました。 多くの人に分かってもらいたいのは 「誰でも私のようになるリスクがある」
Japan Timesに私の記事が掲載されました。
多くの人に分かってもらいたいのは
「誰でも私のようになるリスクがある」
ということです。
日本人は「穢れ」の観念が強く、被害者を見ると距離をとり、そして「自分はあいつらとは違う」と思いこもうとします。
たしかに、目を背ければ、そのリスクを考えることなく穏やかな生活を送れます。
しかし、司法を正さない限り、そのリスクは決してなくなりません。
目を背け続け、ある日突然家に帰り子どもがいなくなってから、そのリスクに気づいても遅いのです。
以下、Ｊａｐａｎ Ｔｉｍｅｓの記事の訳です。
困難な子の親権問題における不正義の是正
司法の硬直的な考え方が改まらなければ、ハーグ条約批准によっても親による子どもの拉致(parental abduction)を止められないだろう
伊藤聖美記者
２０１０年５月６日、総務省の官僚である渡邉泰之氏が家に帰ったところ、妻と２歳の娘が服などとともに消え去っていた。
彼の妻はゴールデンウィーク直後に娘を連れ去った。彼がゴールデンウィーク中に娘をハイキングに連れて行ったり、地元のお祭りに連れていったりして楽しんだ数日後のことだった。
現在、栃木県那須塩原市の副市長である渡邉氏（４０）は、その当時のことを思い出し、娘を背中にしょって娘が寝付いて寄り掛かるまで一緒に歌を歌っていた時のことなどを詳しく語った。
彼の人生は、その運命の日を境にして完全に変わってしまった。娘は先月で５歳になってしまった。
「子どもたちが両方の親の愛情を感じて育つことほど重要なことはありません。特に、子どもたちが成長していくときには。私の娘は私に捨てられたと感じていると思います。私が娘をもはや愛していないから姿を消したのだと。」と渡邉氏はＪａｐａｎ Ｔｉｍｅｓに語った。
日本において、夫婦間の諍いののちに子どもとの関係を引き裂かれた親は数多くおり、渡邉氏はその一人に過ぎない。日本という国は単独親権制度を採用しており、親権は通常母親にわたすことにしている。そして、子どもと引き離された親に対して、子どもたちと、たとえ会えるにせよ、非常にわずかな頻度でしか会えなくする慣習を有している。
この日本の残酷な現実は、外国人にも広く知られている。その外国人の中には、日本人の配偶者により子どもを海外から日本に連れ去られ、引き離されている在外の者も含まれる。
これらのいわゆる親による子どもの拉致(abduction)の問題が、国境を跨いだ子どもの誘拐を防止するためのハーグ条約を日本が批准するよう求める要求が増大している背景にある。
「これらの二つの問題は、実際には非常に密接に関連しています。なぜならば国内の問題も国際の問題も状況は全く同じだからです。自分の子どもがある日突然誘拐され、会うことすら許されないという状況は全く変わりません。」と渡邉氏は言う。
娘の誘拐後に妻との長期間の裁判所で闘い続け、現在も離婚手続きを進める渡邉氏は、こう続ける
連れ去られた当初妻は彼を娘に数回会わせたが、その後、妻が彼を虚偽の配偶者暴力（ＤＶ）で訴えるという仕打ちをし突然会えなくなったと言う。
渡邉氏の妻は、妊娠中に渡邉氏が大きなハサミを突きつけて脅したり、彼女が駅のホームの傍にいる際には喜んで突き落してくれるヤクザの知り合いがいると語ったと主張して裁判に訴えた。しかし、その配偶者暴力の訴えは後に取り下げられた。
「『ＤＶ』の訴えにより裁判所への出頭命令書を受けとること程、おそろしい経験はありません。私は（それを受け取った際）完全に取り乱しました。しかし、裁判官は、妻の主張の大半には疑問があることを認め、妻には虚偽の申立ての罪が科される恐れがあると警告しました。そこで、妻は、判決が出される直前になり訴えを取り下げたのです」と渡邉氏は言った。
にもかかわらず、彼の妻は子どもの監護権を求める裁判を訴え、そして、再度、暴力の訴えを出してきたのである。
昨年の２月、千葉家裁の裁判官である若林辰繁氏は、渡邉氏の娘の監護権を「継続性の原則」を利用して妻とし、更には渡邉氏が配偶者暴力を犯したと認定した上で、娘を引き渡すよう求めていた彼の訴えを退けた。最高裁は９月にそれを追認する決定をした。
渡邉氏は、法廷での闘争を続けつつ、国会議員にこの問題に取り組むよう要請し、彼の事件は国会でも取り上げられた。
渡邉氏は、自らの立場から、当初は匿名で訴え続けることを望んでいた。しかし、彼の状況について多くの人たちの支援を得るため、彼は自らに起こったことを報道機関に伝える道を進むことにした。
「私は『ＤＶ夫』という烙印を押されてしまった。その裁判官は、私の件について完全に事実と法を無視したのです。私は立ち上がり（裁判官と）闘う以外に残された選択肢はなかったのです。」と渡邉氏は語った。
渡邉氏は、裁判官である若林氏を罷免させるため、国会議員からなる裁判官訴追委員会に助けを求めた。
日本に居るいわゆる「置き去りにされた親」たちの数多くがこの若林氏に対し激しい憤りを募らせているが、特に２０１１年に「『継続性の原則』よりも子どもの利益を優先すべき」と国会で答弁した江田五月法務大臣（当時）を非難したことは激怒させた。
「同様の状況におかれた人たちは非常に多くいます。私は、その人たちのためにも諦めることはできないのです。これは、私と娘だけの問題ではありません。全ての子どもたちとその親のための闘いなのです。」と渡邉氏は言う。
家裁による調査によると、子どもを連れ去った親から子どもを引き渡すよう求める親による裁判は２００１年には４０９件であったが、２０１１年には、子どもを戻すよう求める親の数は１９８５件にまで跳ね上がった。しかし、その数は、家裁が公式に受けた「置き去りにされた親」により法的に訴えられた事件しか反映していない。専門家は、それは氷山の一角でしかないと推測する。
早稲田大学の家族法の教授である棚村氏は、日本における単独親権制度や通常母親に監護権を渡す現在の司法の仕組みなど、様々な要因が親による子どもの拉致が増加している背景にあるという。
「時代は変わっているのです。父親も子育てに一層関わるようになり、単独親権制度を含む法的な仕組みが子どもを巡る争いをより起きやすくさせています。日本の司法の仕組みのこの部分については時代遅れになっていると考えます。」と棚村教授は言う。
日本の司法体系を独特なものにする（他国との）もっとも大きな違いは、日本において最初に子どもを連れ去った親の行為は犯罪とみなされないという点である。そのため、離婚のおそれが生じると、片方の親（通常は母親）が子どもをその親の実家に連れ去ることが当たり前となってしまうのである。
しかし、もし置き去りにされた親が、その後、家から消え去ってしまった子どもを取り返そうとすると、その行為は誘拐とみなされるのである。
棚村氏は、子どもから引き離された親が子どもを取り返そうとして誘拐犯とされる事件では、取り返そうとした親が自分の行為が誘拐にあたると気づいていない場合が数多くあると主張する。彼らからすれば、単に離婚の争いの一環と考えていたか、または、子どもを虐待環境から助け出そうとしただけなのだと。
「親による誘拐をすべて違法とするのは困難ですが、同時に、ダブルスタンダードになっている事件も数多くあるのです。最初に母親が子どもを連れ去るのは問題なくて、父親が子どもを取り返そうとしたら違法とされます。これは、長い間、子どもは母親の所有物と考えられてきた考え方が根底にあります」と棚村氏は言う。
別居後に子どもが両方の親に会う機会を奪われることを防ぐため、民法の７６６条が２０１１年に改正され、裁判に持ち込まれていない離婚手続きの中で面会交流や養育費その他について決定するよう明記された。そして、その際には子どもの利益を最優先に考慮するようにも規定された。
しかし、このような改正は渡邉氏のような人たちを救うことができなかった。渡邉氏の事件は当該改正後に判決が出たのだ。「この改正は子どもの養育について離婚する際に合意することを目的とするものです。しかし、この合意は全く強制力をもつものではありません。」と棚村氏は言う。
棚村氏や他の専門家は、日本が「国際的な子の奪取の民事面に関するハーグ条約」に署名すれば、日本の司法の仕組みは根本的に変わることになり、そして、多くの人々の考え方も根本から改められるに違いない、さもなければ、この条約への加盟は失敗に終わる、との意見で一致する。
最近設立された日本人と外国人の置き去りにされた親やその支援者等から構成される団体である「絆・親子再統合」の代表であるジョン・ゴメス氏は、子どもは両方の親に会う権利があると主張する。また、日本国内の監護権についての今の一方的な仕組みを残したままハーグ条約に加盟しても何も解決しないのだから、置き去りにされた親たちは協力しあうことが必要だと強調する。
「国際的なケースも国内のケースも根っこは同じ原因を抱えています。それは日本の家族法であり、日本の裁判所です。」とゴメス氏は言う。
「この拉致問題は、日本にいる全ての人に影響を与えます。母親であろうと父親であろうと。そして、日本人であろうと外国人であろうと。」
ハーグ条約は、国際間の親による誘拐を防ぐため、片方の親が「常居住地」である国から違法に連れ去られた子どもを迅速に返還させることを目的としている。Ｇ８の中で、この条約に署名していないのは唯一日本だけである。
日本は、米国、英国、カナダなどを含む加盟国からこの条約に加盟するよう圧力を受け続けてきた。しかし、強い国内の反対勢力、特に、配偶者暴力から身を守るために子どもを連れて日本に戻ったと主張する日本人の母親たち（の圧力）により、日本政府は全くやる気を見せなかった。
しかし、国際社会からの激しい批判を受け、日本は、ついに条約への署名の宣言とハーグ条約関連法案を、野田総理の民主党が多数を占める前国会に提出した。しかし、政治家たちは、国内問題に関連する国内の権力闘争に明け暮れて多くの時間を費やし、ハーグ条約を再び隅に押しやったのである。
そして、この問題は自民党による新政府下において解決の方向に話が進むか不透明な状態にある。
政府の官僚は一度審議が始まればハーグ条約関連法は可決されるだろうと自信をのぞかせる。しかし、日本人の妻と別居し娘と会うこともままならないまま日本に長期間滞在するゴメス氏のような親たちは、ハーグ条約加盟は正しい方向に向かう単なる一里塚に過ぎず、問題解決の決定打にはならないと言う。
ゴメス氏は、法的に親による誘拐は止めさせなければならず、面会交流権は強制力を有するものとし、そして、共同親権制度が導入されるべきと説明する。しかし、新しいルールが遵守されることを確実にするためには、これらの変化による利益を多くの人々が理解しなければならず、多くの人々が制度改正と同時に気付くことも必須であるとも加えて主張した。
「ハーグ条約は単なる一つの道具です。我々の究極の目標は、日本の社会的・法的な変革です。人々の考え方や行動の完全な変革です。」とゴメス氏は言い、続けて「日本人も外国人も同様であり、社会的・法的な変化は日本社会と子どもたちにとって良いことであり、生活の質の向上につながるものと我々は固く信じています。」と語った。
Child custody injustices hard to fix Joining Hague may curb parental abductions if legal mindset evolves
にほんごで
Friday, Jan. 4, 2013
By MASAMI ITO
On May 6, 2010, Yasuyuki Watanabe, an internal affairs ministry bureaucrat, came home to find his wife and 2-year old daughter gone, along with their clothes.
Playing catchup: Yasuyuki Watanabe, deputy mayor of Nasushiobara, Tochigi Prefecture, speaks during an interview at a Tokyo hotel on Dec. 11. SATOKO KAWASAKI
His wife had spirited away their daughter near the end of Golden Week, just days after he was enjoying the holidays taking her on hikes and to local festivals, recalled Watanabe, 40, now deputy mayor of Nasushiobara, Tochigi Prefecture. He recounted how he carried his daughter on his back and how they sang songs together until she fell asleep, snuggling against him.
His world was turned upside down that fateful day. Last month she turned 5.
“It is so important for children to feel loved by both parents, especially when they are growing up, and I think that my daughter feels abandoned by me, that I left her because I didn’t love her anymore,” Watanabe told The Japan Times during a recent interview in Tokyo. “The most painful thing about my situation is when I think about how my daughter must be feeling.”
Watanabe is one of many parents in Japan who have been torn away from their children after a falling-out with their spouse in a nation that grants only sole custody, usually to the mother, and where it is customary for parents not living with their offspring, to have little, if any, contact with them.
This has also been a widely reported harsh reality for foreign parents, including those living overseas whose children have been taken to Japan by estranged Japanese spouses.
These so-called parental child abductions are behind growing calls for Japan to join the international Hague treaty to prevent such cross-border kidnappings.
“These two problems are actually closely related because the domestic and international situation is the same — your children are abducted one day out of the blue and you are forbidden from seeing them,” Watanabe said.
For Watanabe, what followed was a long legal battle with his wife, and divorce proceedings, which continue.
Initially his wife let him see their daughter a few times, but that stopped abruptly when he was slapped with domestic violence charges — which he branded a lie.
His wife alleged he had threatened her with a large pair of scissors while she was pregnant and told her he knew yakuza who would be willing to help him out with the situation by pushing her off a station platform in front of a train. The violence charges were later dropped.
“There is nothing more terrifying than receiving an order to appear before the court over ‘DV’ allegations. I was completely distraught. The judge, however, recognized that much of her claims were questionable and warned she could be charged with false accusations, so she dropped the charges the day before the ruling was to be made,” Watanabe said.
But his wife then filed a lawsuit, demanding custody of their child and, again, adding allegations of abuse.
Last February, presiding Judge Tatsushige Wakabayashi at the Chiba Family Court granted Watanabe’s ex-wife custody of their daughter from the viewpoint of “continuity,” ruled that Watanabe had committed domestic violence and rejected his demand that his daughter be returned. The Supreme Court finalized the ruling in September.
While his legal battles dragged on, Watanabe asked lawmakers to address the issue and his case was deliberated on in the Diet.
Given his public profile, Watanabe originally wished to remain anonymous. But to garner public support for his situation, he recently came forward to tell his story to the press.
“I’ve been labeled a DV husband, and the judge completely ignored the facts and the law in my case. I had no choice but to stand up and fight,” he said.
Watanabe has solicited the help of a special group of lawmakers who are trying to get Judge Wakabayashi fired from the bench. Among the so-called left-behind parents in Japan, Wakabayashi has spurred widespread ire, especially when in 2011, he criticized then-Justice Minister Satsuki Eda for telling the Diet that priority should be placed on the welfare of the child rather than the “principle of continuity.”
“There are many people in similar situations. I cannot give up for their sake. It is not just about me and my daughter. This is a battle for all children and their parents,” Watanabe said.
According to data compiled by family courts, there were 409 parents seeking the return of their offspring from an estranged spouse in 2001, whereas by 2011, there were 1,985 parents seeking to get their kids back. The numbers, however, reflect only the legal cases filed by left-behind parents that were officially accepted by the nation’s family courts. Experts speculate they constitute only the tip of the iceberg.
Masayuki Tanamura, a professor of family law at Waseda University, said various factors are behind the increase in parental child abductions, including Japan’s sole custody principle and the current legal framework that generally grants that right to mothers.
“Times have changed — fathers are more involved in child-rearing, and the legal system — including the principle of sole custody — makes battles over children more likely to happen. I think this part of Japan’s legal system is outdated,” Tanamura said.
One major difference that makes Japan’s legal system peculiar is that when an estranged spouse initially takes a child, it isn’t considered a crime. This is because it is common for an estranged parent, generally the mother, to take the children to her parents’ domicile if a divorce is being contemplated.
But if the left-behind parent then subsequently tries to retrieve the offspring spirited away from their home, the action is considered kidnapping. Tanamura claimed there are many cases in which parents who spirit offspring away are unaware such action could be construed as abduction. From their point of view, they are merely considering a divorce or fleeing an abusive environment.
“It is hard to label all parental kidnappings as illegal . . . but at the same time, there are many cases that could constitute a double standard. It’s OK for mothers to first take the children away, but when the fathers try to get them back, this is illegal,” Tanamura said. “This is based on the longtime concept that children belong with their mothers.”
To prevent children from losing access to both parents after a separation, Article 766 of the Civil Law was revised in 2011 to specify that visitation rights, child-support payments and other matters be determined during nonlitigated divorce proceedings, and that the welfare of the child be considered first.
But even this change can’t help people like Watanabe because his case was ruled on after the amendment. “The aim of the revision is to promote forming agreements (over child care) when getting a divorce. But there is nothing that guarantees compliance,” Tanamura said.
Tanamura and other experts thus agree that if and when Japan signs the 1980 Hague Convention on the Civil Aspects of International Child Abduction, it must at the same time institute fundamental changes in the legal system, and the public mindset must also be overhauled, or joining the convention will lead to naught.
John Gomez, chairman of the recently founded Kizuna Child-Parent Reunion, a group of Japanese and non-Japanese parents, friends and supporters advocating the right of children to have access to both parents, emphasized the need for left-behinds to cooperate because simply joining the Hague Convention will not solve anything in Japan if it continues to take a one-sided approach to domestic custodial rights.
“The problem of international cases and in-country cases has the same root cause — Japanese family law and the courts,” Gomez said.
“The abduction issue affects all people in Japan — mothers as well as fathers, Japanese as well as non-Japanese.”
The Hague treaty aims for the swift return of children wrongfully taken out of the country of their “habitual residence” by a parent to prevent cross-border parental kidnappings. Of the Group of Eight countries, Japan is the only nation yet to sign the convention.
Japan has been under pressure from member states, including the United States, the United Kingdom and Canada, to join the convention, but it has been reluctant, given strong domestic opposition, especially from Japanese mothers who claim they fled to Japan with their children to protect themselves from abusive ex-spouses.
Facing severe criticism from the international community, however, Japan finally reached the point of submitting a bid to sign the treaty and Hague-related legislation to the Diet during the last session presided over by Prime Minister Yoshihiko Noda’s Democratic Party of Japan. But the politicians instead spent most of their time bickering over internal power struggles related to other domestic issues, pushing the Hague Convention to the sidelines once again.
And it remains unclear whether the issue will move forward under the new government led by the Liberal Democratic Party.
Government officials have expressed confidence that once deliberations begin, the Hague bid will be approved by the Diet. But parents, including Gomez, a longtime Japan resident who himself is separated from his Japanese wife and is having difficulty seeing his daughter, say joining the Hague treaty is only a step in the right direction, not a silver bullet.
Gomez explained that on the legal front, parental kidnappings must be stopped, visitation rights made enforceable and the idea of joint custody introduced. But he added that public awareness must also be raised at the same time so the public understands the benefits of the changes to ensure the rules are followed.
“The Hague is only one tool. The ultimate goal for us is a social and legal transformation of Japan . . . a complete transformation in terms of mindset and practice,” Gomez said. “We firmly believe, Japanese and non-Japanese alike, that the social and legal transformation is for the betterment of Japanese society and children and improvement in the quality of life.”
Parental Alienation Leads Court to Call Father a “Wallet”
Lawdiva’s Blog – Canadian Lawyer Georgialee Lang – Her recent story on Parental Alienation
There are many divorced fathers in Canada who believe they are nothing more than a “wallet” in their children’s eyes. It is rare however, for a judge to confirm that status in Reasons for Judgment, but that is exactly what Mr. Justice Gray did in his recent decision in Veneman v. Veneman 2012 ONSC 6324.
Mr. and Mrs. Veneman separated in 2004 after 11 years of marriage. Mr. Veneman left the family home but maintained the financial status quo and enjoyed a good relationship with the children, ages 8 and 11.
The apparent bliss of separation disappeared, however, when Mr. Veneman commenced a personal relationship with a woman he met on the internet. His ex-wife’s reaction was venomous as revealed in vulgar emails from her to Mr. Veneman where she called his girlfriend an “internet whore”.
At about the same time, Mr. Veneman decided that after two years of separation, the parties should reorganize their financial affairs. He closed the joint account that his wife and he shared since the date of separation and began paying voluntary child and spousal support.
Ms. Veneman’s campaign of abuse against Mr. Veneman was quickly adopted by his two girls who also began writing mean-spirited and disrespectful emails to their father. The children were particularly angered by their father when he brought his girlfriend to a birthday party for one of the girls hosted by the girl’s paternal grandparent. This was the first occasion they had met her, although Mr. Veneman told his children about her and their relationship.
As time went on, the girls also sent emails scolding their father for failing to provide sufficient funds to their mother. The Court found that Ms. Veneman liberally shared her views about his girlfriend and his financial contribution, all actions which eventually led to the termination of any father/daughter relationship.
Eldest daughter Maggie described her father in an email to him as “selfish, greedy, lying, back-stabbing, neglecting, blackmailing, bribing, idiotic, mean and just overall a stupid person”. This kind of poison most often originates from a parent who cannot see that their attitude is severely harming their children.
Despite the difficulties, Mr. Veneman continued to make every effort to reconnect and appease his children but all overtures were rebuffed by them.
With his older daughter approaching the age of nineteen and attending Queen’s University, Mr. Veneman brought an application to court asking for an order that his obligation to pay child support cease upon her birthday.
Several years earlier, he had agreed to an order that he pay 75% of his children’s post-secondary education costs, but he now argued that her termination of any relationship with him was cause for the court to reconsider his child support obligations.
Mr. Veneman relied on several cases where courts noted that an adult child’s unilateral and unreasoned abandonment of a parental relationship could lead to a termination of support. Other cases, however, were cited where the proposition was accepted that “estrangement, even at the sole instance of the child, should not be relevant”.
Judge Gray, however, did not need to grapple with which authority was correct as he was able to decide the case by finding that the father had not shown a material change in circumstances, which was the required test to vary a child support order. The judge held that when Mr. Veneman agreed to pay post-secondary expenses in 2009, he had no relationship with Maggie, and had no relationship now.
He declared that Mr. Veneman “was nothing more than a wallet” and said the blame for the alienation must be assumed by both parents.
It is here where I part company with the judge’s findings. It is startling to suggest that the clumsy, perhaps even insensitive, introduction of a new partner to one’s children who are 10 and 13, after two years of separation from their mother, constitutes conduct that is blameworthy.
In my view, Ms. Veneman’s immature behavior is the reason her children have ousted their father from their lives. I hope when the girls figure it out, which they will, they will clearly understand their mother’s role in a tragic family situation the judge called “irrational and avoidable”.
Interesting that if you are part of an intact family you can decide how much you want to contribute, if any, to your child’s education, but if you are separated or divorced the State decides.
Equally interesting is the absence of any reference to “parental alienation”. I guess if you don’t say it, it doesn’t exist.
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Documentary about parental abduction by Bryan McGlothin
Bryan McGlothin is working on a documentary about parental abduction. Bryan was abducted by his father when he was 2 years. His father moved around to prevent Bryan’s mother from finding him. Bryan was told (by his father) that his mother did not love him and did not want to be in his life. When Bryan became an adult and escaped his father’s grip he began searching for his mothers grave, since his father told him that his mother had died. Instead of finding his mother’s grave, he found his mother. But it was not the fairy tale story that everyone hopes for. You can read his book or listen to his interview on Family Matters Blog Talk Radio with Jill Egizii the president of Parental Alienation Awareness Organization. Bryan’s book, “Have You Seen My Mother: A True Story of Parental Kidnap.”, is a gut wrenching. Bryan’s documentary will raise awareness about a subject that has been off the radar for too long. Please think about donating to this cause. You can find more information at:
http://www.indiegogo.com/preventparentalkidnap
http://www.preventparentalkidnap.org/index.html
About the Documentary
It’s estimated about 250,000 children are abducted by a parent or family member every year in the United States alone. Parental abduction is also a major international problem.
As these children are used a pawns in toxic relationships, the abuse they endure is ignored. Abuse, many of us have to deal with for many years, well into adulthood…
We examine this abuse from the child’s point-of-view by interviewing adult survivors of this abuse.
We are also looking to film in Canada, Australia and the UK. Parental abduction to Japan is one of the largest issues in international parental abduction.
Where the Money Goes
As you can see, we need several thousand to cover travel expenses. With the $30,000.00 we also expect to be able to accomplish preliminary editing (post production), but we are working on grants to pay for the final editing. Anything we can raise over our goal will help us complete the documentary, pay for marketing, etc. and any extra money goes to the non-profit Prevent Parental Kidnap, Inc.
Things the court should consider when one parent wants to move away from home
By GeorgiaLee Lang
http://lawdiva.wordpress.com/2012/11/11/no-au-revoir-for-halle-berry/
Oscar-winning actress Halle Berry will not be allowed to move permanently to France with her four-year-old daughter Nahla Ariela Aubry, a ruling made on Friday by a California judge. Nahla’s father, Gabriel Aubry is a Canadian actor and model who lives and works in Los Angeles.
Ms. Berry has battled Nahla’s father since the couple separated in 2010, pulling out the usual grab-bag of custody tricks, including her refusal to pay child support to him, later rectified by a judge who ordered that she pay $20,000 to Mr. Aubry as a joint custodial parent. There was also a failed attempt to suggest that Mr. Aubry has been “physical” with Nahla’s nanny. After a complete investigation, accompanied by a period of supervised access for Mr. Aubry, the allegations were thrown out.
When a parent applies to the court to move permanently with a child to a jurisdiction far away from home and the child’s other parent, there are a number of considerations that come into play. Is the move in the child’s best interests? The factors include:
1. Will the child be able to maintain a relationship with the left-behind parent?
2. Will the quality of the relationship with the left-behind parent be sufficient to continue the parental bond?
3. How far will the child and left-behind parent have to travel to maintain their relationship?
4. How much will it cost for the left-behind parent to travel to visit the child and who will pay the expenses?
5. Will the change in the child’s permanent residence impact on the involvement of extended family in the child’s life, such as maternal and paternal grandparents, aunts, uncles and cousins?
6. Will the move enhance the child and moving parent’s quality of life in regards to better opportunities for financial security?
7. Is the motive for the move an attempt to minimize parenting time to the other parent?
Ms. Berry’s rationale for the move is that she did not want her daughter growing up around paparazzi and the tabloids, arguing that she could provide more privacy, and a greater sense of security for her daughter in France, where coincidentally, her latest boyfriend lives.
Ms. Berry must have forgotten that Princess Diana’s death was attributed to overzealous paparazzi in Paris and that Kate Middleton’s recent nude photos were taken in France, by a local celebrity photographer. I’m sure Mr. Aubry’s lawyer remembered.
Read Full Post | Make a Comment ( None so far )Child care left undecided in divorces
The Yomiuri Shimbun
Less than 50 percent of divorcing couples have planned for such matters as child support and visitation rights since the revised Civil Code was implemented in April, which requires couples with small children to do so, according to the Justice Ministry.
As local governments accept divorce applications without making couples declare such arrangements, the effectiveness of the revision has often been questioned.
The ministry collected its first statistics on the issue during the first quarter since the revision came into force. The results reflect the difficulty couples face in reaching an agreement on child-related matters.
In tandem with the implementation of the revised code, the ministry in April added items to the divorce application form asking couples with young children to verify they have come to an accord on certain issues. This includes whether they have agreed on visitation arrangements for the noncustodial parent and how child support will be handled.
According to the ministry, 32,757 couples with young children mutually consented to file for divorce from April to June. Among them, 15,622, or 48 percent, indicated they had made arrangements regarding visitation for the noncustodial parent, and 6,843, or 21 percent, had not. The remaining 31 percent did not check any boxes.
Concerning payment of child support by noncustodial parents, 16,075 couples, or 49 percent, had made a decision on the matter, while 6,316, or 19 percent, had not. The other 32 percent left the boxes blank.
In 2011, about 235,700 couples got divorced, with about 90 percent of them doing so by mutual consent. Still, there have been many problems concerning the handling of these child-related matters after divorce.
“It’s necessary for couples to reach an accord [on such matters] for their children’s sake,” said Noriko Mizuno, a Civil Code professor at Tohoku University.
“In Western countries and South Korea, couples are not allowed to get divorced unless they agree on a plan to raise their children and the plan is approved by the court. In Japan, it’s not sufficient to simply check whether parents have come to an agreement on such matters. We must also create a system to verify their decisions really serve the best interests of the child and enforce them if so.”
(Sep. 15, 2012)
Read Full Post | Make a Comment ( None so far )Divorce and Child Custody Issues in the Japanese Legal System
Colin P.A. Jones
Professor, Doshisha University Law School
Introduction
Professor Colin P.A. Jones(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.
Limited enforceability
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.
Going forward
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 )Put the best interests of children above pride and prejudice
I have written about my story previously to The Japan Times, but this most recent article from Richard Cory (“Left-behind dads take desperate measures,” Zeit Gist, Oct. 4) spurs me to write again.
I am an American parent who, in 1994, abducted my children away from their Japanese father because I could not get any protection from domestic violence (against me, not the children) in Japan. In fact, the general response of the legal system was to ask what I was doing to provoke my husband and to suggest that perhaps I needed to seek therapy.
I was also advised by attorneys that it was highly unlikely that I could obtain custody of the children, despite his abusive behavior and late-stage alcoholism, and ultimately I could find no options other than fleeing Japan.
Leaving the only home they had ever known, as well as the total separation from their father, was a terrible shock for my two daughters, and has affected them into adulthood. To this day I mourn the life we lost, and wish that there had been an alternative.
My preference would have been to stay in Japan, where I had lived for 17 years and felt deeply connected, but this was not possible. Without the protection of an order granting me primary custody, and without support from law enforcement to protect us from violence, we had no way to safely stay in Japan. Sadly, my husband died two years later of his alcoholism, never having been reunited with his children.
What I find most ironic is that in the eyes of the Japanese legal system, I would be viewed as having kidnapped my children (at one point, our local consulate informed me that I could be “detained” if I returned to Japan with the issue unresolved), while a Japanese mother who fled back to Japan with her children would be viewed as having done the necessary thing.
It is time for the Japanese legal system to join the 21st century and start to put the needs of these precious children ahead of prejudice and national pride.
KATHERINE CHIBA
Portland, Oregon
Read Full Post | Make a Comment ( None so far )October 16th, 2011 Demo for Joint Custody in Tokyo
On October 16th, 2011 there was a demo in Tokyo for joint custody and the Hague. Kevin Brown, the co-founder of Children First (www.childrenfirst.jp), cycled from Kumamoto to Tokyo to raise awareness about child rights. It took him 31 days to reach Tokyo. Along the way he recieved help from other left behind parents. He stayed one to three days with fellow left behind parents in Fukuoka, Yamaguchi, Hiroshima, Kobe, Osaka, Kyoto, Okazaki, Hamamatsu, and Tokyo. Kevin, like most left behind parents has little access to his child. Like all left behind parents, he wants to see his child more than once a month for 4 hours, the average time awarded by Japanese Family Court Judges. Kevin would like to see Japan adopt a joint custody system similar to that in most western countries. Japan is the only G-7 country without joint custody. And Japan is the only G-8 country not to sign the Hague. Kevin stopped at 15 prefectural offices during his cycling tour. He spoke about joint custody and other issues affecting the well being of children. You can see about 1 minute of the demo if you click on the link: October 16th demo in Shibuya
The Japan Times published Kevin’s story: Dad seeks visitation reform
as did the Asahi Shimbu (nihongo): asahi shimbun
Read Full Post | Make a Comment ( None so far )Summary of my bike tour from Kumamoto to Tokyo
Here is a summary of my 30 day cycling tour. My goal was to raise awareness about child rights, especially the right for children to see both parents after divorce/separation.
Kilometers cycled, 1500
Diet members met, 2
Times in the paper, 3 (Asahi Shimbun and Kobe Shimbun and Japan Times via Kyodo News)
Times on TV, 1 (NHK Oct. 31st)
Left Behind Parents I stayed with, 9
Left behind parents I met before reaching Tokyo, 14
Left behind parents I met in Tokyo, numerous
Child Welfare division that I spoke to (prefectural offices), 15
Questionnaires given to Child Welfare Offices, 15
Parades/Demonstrations attended, 1 (with a big welcome in Shibuya)
Everything on behalf of Childrenfirst
Joint Custody Challenge by NHK
NHK does a very nice job with their short piece on Joint Custody. Professor Tanase, a specialist in child development does a great job. She talks about what needs to be done and what is best for the kids. Click the link to watch the short program.
Read Full Post | Make a Comment ( None so far )
Japanese held in U.S. over child custody
A Japanese woman was arrested in the United States earlier this year for allegedly violating parental custody laws and is currently undergoing judicial proceedings, the government said Friday.
In an unusual case highlighting the complications in parental rights laws in international marriages, Japanese media reported that the 43-year-old woman had been wanted after taking her 9-year-old daughter to Japan without prior consent from her ex-husband, a Nicaraguan residing in the U.S.
An official at the Foreign Ministry’s Japanese Nationals Overseas Safety Division said the woman was arrested April 7 in Honolulu — apparently while on a visit to renew her green card — and was transferred to Wisconsin on April 30, where she is currently being held.
The official declined to reveal further information, saying the woman’s family asked that her private information not be disclosed.
Citing the woman’s lawyer, media reports said the woman’s 39-year-old husband filed for divorce in Wisconsin in 2008 and won sole custody of the child in 2009, the same year the divorce became final.
However, the woman brought the girl to Japan amid the divorce proceedings in 2008 and has been wanted in the U.S. for contempt of court and violation of parental custody laws.
After returning to Japan, she filed for custody of the child at the Kobe District Court and was granted custody this March. The court also allowed the child’s father the right to see his daughter in the U.S. However, both parties immediately appealed the ruling and the case is before the Osaka High Court, according to reports.
Japan has been under pressure from other countries to join the 1980 Hague Convention on the Civil Aspects of International Child Abduction, a treaty that sets procedures for settling cross-border child custody disputes as a result of failed international marriages.
The government decided in May to sign the treaty but has yet to officially endorse the international pact which so far has been joined by 86 nations.
An official at the Foreign Ministry’s Humanitarian Affairs Division said the woman’s arrest may have been prevented if Japan had already ratified the Hague treaty.
U.S. authorities would probably have advised the man against reporting the woman to the police — a move that could hurt his chances of retrieving his child — and ask him to proceed with the case based on the provisions of the treaty.
American cycles across Japan to raise awareness on child rights
Kevinbrown photo
TOKYO, Oct. 15 — (Kyodo) _ (EDS: ONE PHOTO AVAILABLE)
An American who has been separated from his 6-year-old son due to his divorce from his Japanese wife completed a month-long 1,500-kilometer bike ride from Kyushu to Tokyo this week to raise awareness on the issue of child custody. Along the way, he stopped at local government offices to lobby for children’s rights to have access to both parents.
Kevin Brown, a 45-year-old English teacher and the founding director of civic group “Children First” in central Japan’s Aichi Prefecture, said that during his visits to more than 10 prefectural and municipal government offices he explained that children’s steady access to both parents should be guaranteed in line with the U.N. Convention on the Rights of the Child.
Brown, a native of Illinois, was parted from his son four years ago when his wife moved from Nagoya to southwestern Japan’s Kumamoto Prefecture. Every six weeks he travels by overnight bus to the prefecture in the Kyushu region to see the boy for five hours — the maximum amount of time agreed upon during the divorce settlement.
“When I started research, I was really disappointed in what I found — the sole custody system. Usually, the winner is the person who abducts the kids first,” Brown said in an interview with Kyodo News. “I want a kind of unlimited access to my son. Once every six weeks is not enough.”
The father said he learned of the Japanese child-custody system in the middle of the divorce proceedings, which were finalized in September. “I would like the kind of American system where, you know, every other weekend, overnight visits, birthdays, holidays you get to see the kids,” he said.
The English teacher said that since his son was only 2 when they were parted, the boy only speaks Japanese and has difficulty communicating with his father, who does not speak much Japanese.
Family courts in Japan tend to give mothers sole custody after divorce and it is not unusual for children to stop seeing their fathers after their parents break up. Brown pointed out that the average visitation awarded by the courts to parents without custody is four hours a month.
Brown said he underlined during his meetings with local government officials that Japan, which ratified the U.N. convention in 1994, has not implemented policies to secure children’s access to both parents and that the country is the only Group of Seven member to adopt the sole custody system upon divorce.
Article 9 of the U.N. pact says state parties “shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.”
The other G-7 countries are Britain, Canada, France, Germany, Italy and the United States.
The campaigner said some local government officials in charge of child welfare were not well aware of the issue related to visitations as they focused on protecting children from abuse and were “not too familiar with good parents not being able to see their kids.”
Although some workers told Brown that what local governments can do is limited as the matter should be handled by the central government, he said the awareness-raising tour was meaningful as “the first step in making change.”
Japan recently launched preparations for joining the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which establishes procedures for settling international child custody disputes.
However, Brown’s case will not be covered by the pact because it is not retroactive, only applying to cases that occur after its entry into force in Japan, and also because it deals with cross-border parental child abductions.
In late September, U.S. President Barack Obama welcomed Tokyo’s decision to enter into the Hague Convention but asked Japanese Prime Minister Yoshihiko Noda during their summit talks in New York that the Japanese government also “focus on the preexisting cases,” according to the U.S. State Department.
Noda said he was aware of the 123 active cases involving children who have been abducted from the United States to Japan, and vowed to “take special care to focus on these particular issues,” the state department said.
(c) 2011 Kyodo News International, Inc.
Read Full Post | Make a Comment ( 4 so far )Japan Times に掲載された記事「Japan’s ‘silent tsunami’ severs parental ties, wrecks children’s lives」のケビン・ブラウンさんによる文章の日本語訳です。
Japan Times 2011年8月30日（火）
永田町へのホットライン
次期首相へ
私は、子供の問題に焦点を当てたNPO「Children First」(childrenfirst.jp)の、共同設立者です。
3分毎に新たな子どもが親の離婚によって両親の片方から断絶されています。 7分 毎に新たな子どもが学校いじめの犠牲者になっています。 12分毎に児童虐待に関する新たなケースが保護施設に報告されています。 毎週、少なくとも1 人の子供がこうした児童虐待の結果として死んでいます。
「Children First」は、これらの問題と子供に影響のあることについての他の問題を克服するために活動しています。 しかし、私たちだけでは実現できません。日本が子供にとってより良い場所になるためには、国会議員や政策立案者の助けが必要です。
ほとんどの人々がいじめと虐待の存在に気付いています。これらの2つの問題はしば しば新聞に掲載されます。 しかし、私や多く の他の親達が更に憂慮すべきだと考える問題は、3分毎に子どもの離婚後の片方の親との連絡が絶えてしまうということです。
3月11日に1万6000人以上が死にました。その他に5,000が行方不明になっています。数百ないし何千人もの子供が当日、少なくとも片方の親を失いました。
3月11日以 来、それとは別に更に8万2000人以上の子供が両親の離婚のために片方の親からの連絡を失っています。
これは、日本中に癌のように広まっている静かな悲劇です。 それによって、子ども達は彼らの最大限の可能性を広げることができません。それは家 族と家族重視の価値観を滅ぼしています。それは子どもを、将来についての混乱の最中に放り出したままにし、そして普通の生活を送れる可能性を小さくします。 何組かの親子は想像を絶する深 い悲しみの中に取り残されます。これは多く の人々が知らない静かな津波です。 家裁と日本の法システムが、この悲劇が続くことを許しているのです。
2006年に最高裁判所は、「子どもを持つどんなカップルも、離れて暮らす場合について考えなければならない」というタイトルのDVDを作りました。驚いたことに、家裁はこのビデオを両親に見せません。かなり正反対であることに、彼らはこのDVDの存在を隠します。そして家裁裁判官は、子供が幸福になるためには両方の両親が必要であるとするDVDのメッセージに直接的に反対の判決を下します。家裁弁護士の中にはこのビデオが存在することに気づかない人も います。
今、平均的なケースでは、親はその子どもと共に月に4時間の交流が出来ます。これは子どもの人生に関わったり、その人生に変化を与えることがほとんどできないほど、少ない時間です。親の中には、子どもの保護監督権のない親と子どもとが一度は持っていた親子関係を破壊するために、「親の疎外」を行う人もいます。
国連児童憲章(UNCRC)によると、子どもは両方の両親との関係を持つ権利を与えられます。もし何らかの理由で親子が離れて暮らす場合には、州(state：日本)は離れて暮らす親子の交流を回復しなければなりません。もちろん、これは決して行われません。
そういうわけで、家裁は二度のミスを犯しています。最高裁判所DVDのアドバイスに従いませんし、彼らはUNCRCを無視 します。(UNCRCは法律相当です)。
私は、日本中の裁判官の判決を見直して、悪い判決をする裁判官を取り除く時期であると思います。私は、裁判官は時々ケース・ファイル（裁判資料？）を見てさえいなく、また裁判の準備ができていないと、弁護士に言われました。悪い裁判官はその椅子から退ける必要があります。
首相、私は、悪い裁判官を免職し、子どもには両方の両親との長くて有意義な関係があるのだという法案を可決するために、必要な措置を取るようお願いしています。加えて私は、子どもを虐待といじめから守るためにより役立つ法案を可決して、虐待といじめを報告するためのより良い政策を実施して欲しいと思います。教師と官僚は、虐待といじめを防止するキーです。効果をあげるために必要な手段を彼らに与えることを願っています。
現在、私は裁判を抱えていますが、その内容はすぐに変わるべきです。9月13日に、裁判官は離婚と親権に関する判決を出すでしょう。前例の通りであるならば、私は100%負けるでしょう。私は、私の所轄裁判所のある熊本から東京の最高裁判所まで、自転車に乗って行くことを計画しています。私は家族法を変えることを要求するつもりです。私は道中、県庁に寄って知事達からの支持を集めるつもりです。私はそのために8週間の休暇を取りました。「Children First」の日本のフェイスブックページ(
http://www.facebook.com/pages/Children-First-Japan/115396388532379
)や、「共同親権」の日本のフェースブックページ(
http://www.facebook.com/oyako
)で、私の計画の経過を見守ることができます。そしてまた、私のブログ「Children First Japan」(
http://kwbrow2.wordpress.com
)で、私の旅行に関する詳しい情報が得られます。
ケビン・ブラウン
名古屋
FROM SQUARE ONE / Protecting kids when intl marriages break down
The Yomiuri Shimbun
The government has decided to join the Hague Convention on the protection of children who are taken or kept in a certain country by one parent without the other’s consent when international marriages break down. The government is now studying the establishment of the necessary legal framework. However, some people have expressed caution about signing the treaty, raising such questions as how to deal with parents and children who come to Japan to escape domestic violence.
In May, the Cabinet decided Japan should participate in the Hague Convention, and this decision was conveyed by Prime Minister Naoto Kan to a summit meeting of the Group of Eight countries in Deauville, France, later that month.
The formal name of the treaty is the Hague Convention on the Civil Aspects of International Child Abduction.
The multinational treaty is designed to provide an expeditious method to return children abducted from one participating nation to another. It is also designed to prevent one parent from removing children from the country where they habitually reside without the consent of the other parent after the marriage collapses.
The convention was adopted at the Hague Conference on Private International Law in 1980 and enforced in 1983. As of July, 85 states are parties to the convention, but few Asian countries have joined.
Under the convention, a child under 16 years old should be returned to its place of habitual residence if one of its parents takes the child out of that country without the consent of the other parent after their marriage collapses. If the parent who remained in the nation of habitual residence demands the return of the child, that child should, in principle, be returned.
The convention is based on the idea that it would serve the best interests of the children if they remained in the nation of habitual residence and courts in that nation decide how the children should be raised.
International marriages involving Japanese nationals increased sharply in the 1980s and ’90s. The annual number of international marriages has hovered around 30,000-40,000 since 2000.
On the other hand, the number of divorces among international couples has also increased, reaching about 20,000 in 2009.
In recent years, there have been many cases of Japanese women who married and began living in other countries, such as the United States, Canada and France, who returned to Japan with their children and refused to let their children have any contact with their fathers. This has become a major issue in North America and Europe.
As of May, there were 100 cases in which children had been removed from the United States, followed by 39 in Britain, 38 in Canada and 32 in France, according to reports received by the Foreign Ministry from other countries.
===
External pressure
Under the Japanese “sole parental authority” system, only one parent has parental rights after a married couple has divorced. It is not unusual, therefore, for a parent without parental rights to be refused any contact with his or her children.
In the United States and Europe, joint parental authority or joint custody is common practice. Under this system, parents and their children who live separately after divorcing frequently meet and interact with their offspring.
Because of cultural and institutional differences in parent-child relations, other countries regard Japan as a nation that refuses to allow divorced parents to meet their children.
Last September, the U.S. House of Representatives adopted a resolution asking Japan to sign the convention. The French Senate adopted a similar resolution in January this year.
With Japan coming under increasing pressure, the government started preparations for joining the convention by studying the necessary legal arrangements and deciding to designate the Foreign Ministry as the “central authority,” stipulated in the convention, to discharge duties imposed by the convention on such authorities.
Parents march in Tokyo to urge Biden to address child custody issue
TOKYO (Kyodo) — Around 20 Japanese and Japan-based foreign parents who are facing difficulties in gaining access to their children following failed international marriages marched in Tokyo on Tuesday in seeking help from visiting U.S. Vice President Joe Biden to push the Japanese government to address the issue of child custody.
Holding banners reading “Stop child abduction” and “Why don’t we have rights to see our children in Japan?” the parents embarked on a march after holding a rally in a park in Tokyo’s Roppongi district.
At issue is child alienation and abduction by Japanese parents, as courts in Japan tend to award mothers sole custody after divorce and it is not unusual for children to stop seeing their fathers after their parents break up.
Japan recently launched preparations for joining the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which sets procedures for settling cross-border child custody disputes.
Akihisa Hirata, co-organizer of a group called Left Behind Parents Japan, said in his message to Biden, “Please urge the Japanese government to address child abduction and also establish joint parenting and joint custody.”
A male participant at the rally said, “Japanese people cannot change their behavior without a strong foreign pressure. We call for changes in the laws to realize joint custody and joint parenting, which is widely adopted in other parts of the world.”
Anthony del Vecchio, a U.S. citizen who has not seen his daughter for seven years after divorcing his Japanese wife, said before the start of the protest march, “With respect to the protection of human rights in general and children’s rights in particular, Japan lags far behind the rest of the developed world.”
“Its system of sole custody upon divorce runs contrary to common sense, sound psychological research and international norms,” he said.
The U.S. State Department lists 123 active cases involving 173 children who have been abducted from the United States to Japan, but it is “not aware of a single case in which a child abducted to Japan has ever been returned to America,” he said.
Biden is on a three-day visit to Japan through Wednesday. The issue of child custody was not apparently discussed in his meeting with Japanese Prime Minister Naoto Kan earlier in the day.
Life in the Philippines no picnic for Japanese
BY MOTOKI YOTSUKURA CORRESPONDENT
2011/07/16 Asahi Shimbun
MANILA–Dreaming of an idyllic existence in an exotic locale, many Japanese have packed their bags and moved to the Philippines.
But for an increasing number of adventurers seeking a laid-back, low-cost lifestyle, the dream can turn to disillusionment, loss of vital organs or even death.
This has led to a term heard with greater frequency among Japanese nationals here: “Destitute Japanese.”
One Japanese man appeared on a TV variety show in the Philippines last December and made an appeal in Tagalog to his 39-year-old Filipino wife.
“I don’t care if you run off with a younger man and become happy, but you should let me have half of our assets,” the 49-year-old former police officer said.
The man met his wife at a bar featuring Filipino hostesses in Tokyo, and they were married in 2001.
The man retired from the Tokyo Metropolitan Police Department and moved to the Philippines. The man’s mother, who was over 80, also took a liking to the wife and sold a condominium in Japan to join her son and daughter-in-law in the Philippines in 2007.
However, after an expensive home and commercial building in Manila was purchased, the wife disappeared with her lover while taking the cash and jewelry owned by the man and his mother.
The home was put up for collateral for loans taken out by the wife and had to be sold off. The man and his mother lost all their assets, the equivalent of about 150 million yen ($1.9 million).
Taking his case to the local police and courts, the man was able to get an arrest warrant on suspicion of theft against his wife and her lover in March.
However, the lover phoned the man and said, “Your wife has hired an assassin to have you drop the case.”
The man continues to hide at the home of an acquaintance.
“I cannot face my mother,” the man said. “I have to do everything I can to get my money back.”
On Oct. 3, 2010, in the town of Limay in central Luzon island, a 46-year-old man originally from Osaka was found dead in a rental unit, the victim of a suicide.
According to the man’s 26-year-old Filipino common-law wife, while the man was in the Philippines, the company he worked for in Japan went bankrupt.
The couple faced economic difficulties and owed three months back rent. The man killed himself after his wife left after the couple fought.
The man’s relatives in Japan refused to accept the body so it was buried in a public cemetery in Limay.
The Foreign Ministry released statistics in June of the number of cases handled in 2010 by overseas embassies and missions to provide support to Japanese nationals.
The embassy in the Philippines handled 1,354 cases, an increase of 46 percent over the previous year.
Reflecting the increase in crime in the Philippines, the number of such cases has more than doubled over the past 10 years.
The embassy in the Philippines handled the largest number of such cases last year of any Japanese overseas mission, replacing the embassy in Thailand, even though there are 2.5 times more Japanese nationals living in Thailand.
Between 60 to 80 Japanese nationals visit the embassy in Manila every month, including a number of repeat cases of destitute Japanese.
Most ask for loans. There are many elderly Japanese who are escorted to the embassy by their Filipino family members and left at the embassy.
When embassy officials ask the Japanese nationals why they came to the Philippines, a typical response is “With the bad economic conditions in Japan, I thought I could get by if I came here.”
There was one person who came to the Philippines with only 2,000 yen.
An embassy official said, “Japanese men seem to think they can live rather easily here, influenced in part by the cheerful nature of the people.”
Most of those men have met Filipino women and often end up marrying them.
Amid the general poverty in Filipino society, many Filipinas enter into relationships with foreign men with high incomes. However, the often large gap between ideals and reality frequently leads to problems among such couples.
Last December, a 46-year-old homeless Japanese was found in the mountains of central Negros island.
The man was taken into protective custody by an officer with the Commission on Human Rights.
The man was originally from Yokohama and worked as a pipe installer. After the man’s wife died in Japan, he came to the city of Dumaguete on Negros Oriental in 2002, because a friend lived there at the time.
He began living at the home of a young woman in the city and they had a daughter. While he worked on construction projects, his income did not even approach the monthly average of a Filipino worker. The women’s family treated him coldly.
Unable to bear with that situation, the man left home in October 2010 and began living outdoors in the mountains.
According to the human rights commission officer, the woman began living with the man because she thought he was a rich Japanese, but once she learned he didn’t have any money she dumped him.
The officer advised the man to return to Japan, but he refused because he did not want to be separated from his daughter. No contact has been made with the man since February.
According to sources, there have been cases of Japanese desperately short of money becoming involved in drug smuggling or providing organs for transplants and entering into fake marriages arranged by organized crime groups.
Because the Japanese Embassy does not have a budget to provide loans to Japanese nationals to enable them to return to Japan, embassy officials often phone relatives or friends in Japan and ask that money be sent. However, such requests are often rejected with relatives and friends claiming they have cut off all ties or complaining that they would be inconvenienced if the individual returned to Japan.
In some cases, those contacted in Japan suspect they are being targeted for a scam.
Australia Leaves Behind Left-Behind Parents
Susan Sachinelli
Modern Tokyo Times (Part 1)
Child abductions unfortunately occur all over the world. And while some of the cases are solved, a majority of the cases are not, even when the parent knows who the abductor is – the other parent. A discouraging phenomenon in Australia has been parents, mainly Japanese, abducting the child or children back to Japan. The Australian Embassy located in Japan said in 2010, there were 13 abductions to date.
Despite Japan and Australia having close diplomatic and economic relations, getting these children back is no easy task. What is most unfortunate is the fact that the Australian government has been extremely unhelpful to these left-behind parents. Numerous Australian left-behind parents have not only been left-behind from their children, but believe their government has left them behind as well.
Matt Wyman, an Australian national, whose Japanese wife abducted their two sons to Japan in 2008, said that the Australian government has provided no assistance to date. Furthermore, the judges on a number of these left-behind parent cases were ineffectual and caused the parent to lose all contact with their abducted children. Parents like Matt Wyman have spent thousands of dollars on necessary legal fees only to see no progress. To make matters worse, his Japanese wife is now demanding child support while residing in Japan in which the Australian government simply enforces, although Matt Wyman’s children have been abducted.
Even though the Japanese government signed the United Nations Convention on the Rights of the Child in March 1994, which provides both parents access to their children, current Japanese laws only allow the Japanese parent to make the final decision regarding if the left-behind parent will receive visitation rights. Currently, Japan does not provide reciprocation to Australian court orders.
In Japan, the idea of “shared custody” is a foreign concept and after a divorce, custody is granted to one parent only. This includes children illegally abducted from the national home of origin. Furthermore, Japanese law clearly states that if the Japanese parent that abducted the child/children dies, the illegally abducted child/children do not go to the parent left behind or another foreign relative. Instead, they are given to the Japanese grandparents.
In the last 55-plus years, there has yet to be a case where a child has been returned to the parent after being abducted to Japan. Therefore, Japan is seen as a safe haven for the abduction of children. In fact, even non-Japanese parents flee with abducted children to Japan and exploit the system there for their own benefit.
Australia is one of the most beautiful locations in the world. There is so much to see and do that it is never a dull moment. However, the beauty of the country is marred by this current situation. Presently, like the Federal Bureau of Investigation (FBI), the Australian Federal Police have been unable or unwilling to extradite parents from Japan who abducted children. Australia needs to do much more to protect all left-behind parents and inhibit further parental abductions to Japan and determine a concrete method to get children back to their left-behind parents.
Read Full Post | Make a Comment ( None so far )Mexican man convicted of abducting daughter from separated wife in Niigata
Jul. 06, 2011 – NIIGATA —
A Mexican man was found guilty and given a suspended jail term Tuesday for forcibly taking his daughter from his separated Japanese wife last November by breaking into her home in Niigata on the Sea of Japan and injuring her mother who tried to prevent him.
The Niigata District Court sentenced Nathanael Teutle Retamoza, 33, to two years in prison, suspended for four years, for his behavior aimed at taking the 1-year-old girl to the United States, at a time when the Japanese government is preparing for legislation to help settle international child custody disputes.
The ruling said it was ‘‘selfish’’ for Retamoza to act on his urge to see his daughter, from whom he had been separated for two months, without heeding the sentiment of his former wife and her relatives.
It also noted that he prepared for the abduction well in advance as he booked U.S.-bound air tickets for himself and his daughter beforehand.
However, the court said the prison sentence is suspended as the man regretted inflicting on his former mother-in-law injuries that required two weeks of treatment and received punishments in the forms of nearly eight months of detention and abandonment of his daughter’s custody.
According to Retamoza’s lawyer, the couple divorced after the incident and the mother was awarded sole custody of the daughter. Also after the incident, the court served a restraining order on him following the wife’s claim of abuse.
In a similar case, an American man was arrested in September 2009 in Fukuoka Prefecture on suspicion of abducting his son and daughter in a bid to reclaim them, as his ex-wife had taken them from the United States to Japan.
But prosecutors did not file criminal charges against Christopher Savoie.
To deal with cross-border parental abduction cases, Japan decided in May to join the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which sets procedures for settling international child custody disputes.
Left Behind Parents Photo Project
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Read Full Post | Make a Comment ( None so far )Dispel concerns before signing Hague Convention
The Yomiuri Shimbun
When international marriages fall apart, how should cross-border disputes over child custody be handled?
The government is in the process of formulating legislation in preparation for joining the Hague Convention on the Civil Aspects of International Child Abduction, which sets international rules for settling such disputes.
If Japan becomes a signatory to the convention, perhaps as soon as next year, it should be lauded as a step forward. However, in drawing up the legislation, the government must take care to ensure the rights of Japanese people are not being unilaterally compromised.
The treaty bans a parent from taking overseas a child aged less than 16 without the other parent’s permission after their marriage fails.
If a parent demands the return of a child taken without permission from their country of residence, signatory countries are obliged in principle to help resolve the issue.
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Japan being urged to join
This is based on the thinking that it is desirable to settle custody disputes in courts in the country of original residence. More than 80 nations have signed the convention. The United States and European countries have urged Japan to join.
About 100 cases have been reported in the United States in which divorced Japanese spouses returned to their homeland with their children. Because Japan is not a signatory to the convention, the foreign parents find it difficult to see their children, let alone take them back to their own country.
Because of this, U.S. and European judicial authorities ban divorced Japanese parents from taking their children home. Japanese mothers who return home with their kids without the permission of their former husbands are often regarded as “abductors” in these countries.
This problem goes both ways: If children with a Japanese parent are taken overseas without permission, the Japanese parent cannot expect to get any help from the country of their former husband or wife.
If Japan joins the treaty, these disputes will be settled by the two countries concerned based on international rules.
The treaty stipulates nations can refuse to return children if they have been physically or mentally abused, and in some other circumstances. But it makes no mention of domestic violence between spouses.
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Domestic violence fears
Japan had long resisted joining the pact because many Japanese mothers had returned home with their children after being violently abused by their former foreign husbands. These mothers have strong concerns about allowing their children to return to such an environment.
The procedure to decide whether to return a child or children starts at a court in the country where they reside. The government is considering incorporating into a related bill the right to refuse a request to return a child if there are fears they could become victims of domestic violence. This is a sensible move.
After signing the treaty, the Foreign Ministry will be responsible for specifying the whereabouts of children brought to Japan and helping with court trial procedures. This will involve domestic administrative work the ministry is not accustomed to doing. Cooperation among government organs to smooth the process will be indispensable.
Many Japanese mothers feel anxious that trials over custodial rights will be held at a court in their child’s original country of residence. Japanese diplomatic missions abroad will need to introduce them to local lawyers and provide other support.
(From The Yomiuri Shimbun, June 14, 2011)
Read Full Post | Make a Comment ( 1 so far )Japan court allows family reunion in U.S. after int’l divorce
Saturday 28th May, 06:00 AM JST KOBE —
A Japanese court has ruled that a Nicaraguan man in the United States can meet with his separated child from Japan for temporary family reunions, a rare decision in an international divorce dispute, attorneys involved in the matter said Friday.
The Itami branch of the Kobe Family Court handed down the judgment March 14, which both the father and mother appealed to the Osaka High Court.
The family court judged that the man’s former Japanese wife, who took their child to Japan after the divorce, must allow the father to meet the 8-year-old child for about 30 days in the United States each year through August 2017.
The court also ordered the woman to have the father and child meet in Japan for about two weeks every year during the period and stay in touch by web camera and telephone.
‘‘It will make the child happier when becoming familiar with the language and culture of the father’’ said Judge Nobuyoshi Asami in the judgment.
But the court rejected the claim by the father to take back the child from his former wife and transferred custody of the child to her, saying the child has become accustomed to life in Japan.
Details about the family such as names, ages and sex of the child were not disclosed.
The woman’s attorney said, ‘‘I appreciate that the court approved the transfer of custody but I’m worried that the high frequency of required meetings and telephone calls could be a burden to the child.’’
Read Full Post | Make a Comment ( 4 so far )Debate awaits on child custody pact
After years of foreign pressure, Japan finally decided Friday to sign a treaty to settle cross-border child custody disputes, but a heated debate is expected to continue as proponents of the pact hope the move leads to the formation of a system that will guarantee children’s access to both parents after a divorce.
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Japan has long been labeled a “haven for parental abductions” and a “black hole” for children removed internationally, by foreign parents unable to see their children because they have been taken to Japan by their former Japanese spouses.
In Japan, the tendency is for the courts to award mothers sole custody of any children after divorce.
Among the Group of Seven countries, only Japan has not signed the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which sets out the rules and procedures for promptly returning children under 16 to the country of their habitual residence in cases of international divorce. The pact currently has 84 parties.
The outcry from foreign parents separated from their children by failed marriages with Japanese has prompted 32 nations to jointly press Tokyo to join the treaty.
The government is now planning to submit bills by the end of this year to craft the legislation needed to accede to the convention.
But the move won’t solve all of Japan’s problems. Joining the pact will only provide a solution to parents abroad. Cases of “parental abductions” that occur in Japan, meanwhile, whil be left untouched.
Also, the pact’s reach is unlikely to be retroactive, meaning it will only deal with future cases, in principle.
Out of concern that accession to the pact could endanger Japanese parties who have fled abusive relationships, Tokyo is considering stipulating in the domestic law that children will not have to be returned when they and their parent have suffered abuse by the other parent.
Japan is also thinking about exempting cases in which the Japanese parent could face criminal prosecution in his or her country of habitual residence and in which the former spouse abroad is deemed to have difficulty taking care of children.
Critics of the pact are calling on the government to carefully address the issue of abuse during the legislative process. Kazuko Ito, a lawyer who has opposed the signing of the convention, said Japan should specify the conditions for exempting the return of children when it drafts the domestic law.
Parents whose former spouses have taken their children — both Japanese and non-Japanese — are also carefully watching the process to see if it will lead to a change in their situation.
Such parents and their supporters have been lobbying for Japan to accede to the pact in the hope that it will change the customary situation in Japan, where it is not unusual for children to stop seeing their fathers after their parents break up.
Thierry Consigny, an elected member of the Assembly for French Overseas Nationals for Japan and North Asia, who has been supporting around 40 French parents officially recognized by Paris as having been separated from their children in Japan, said he hopes Tokyo will not unilaterally adopt criteria for recognizing cases of abuse.
“The 84 parties to the Hague Convention have their own criteria in identifying abuses, but they share international standards and make decisions on a case-by-case basis,” he said. “We want Japanese courts to heed French standards as well in recognizing abuse cases to make a balance.”
Consigny also said he expects joining the Hague Convention, which calls for securing children’s access to both parents, will eventually lead to more exchanges between children and their noncustodial parents in Japan, which in his opinion will promote burden-sharing between divorced parents.
“The current sole custody system in Japan puts too much burden on child-rearing parents,” he said. “Many single mothers who have abducted their children cannot enjoy private life as they bear heavy responsibility as breadwinners and are afraid of the possibility that their kids could be taken by exes.”
France has adopted a joint custody system partly to lessen the child-rearing burden on working mothers by actively involving fathers, he said. Many of the countries that have pressured Japan — the 27-member European Union, the United States, Australia, Canada, Colombia and New Zealand — have such systems.
Mitsuru Munakata, a separated Japanese father who has been lobbying for a joint custody system in Japan, urged the government to address the plight of parents and children who cannot see each other in Japan while it prepares to join the Hague Convention.
“Honoring the spirit of the convention, the government should address the problems of separated parents and children in Japan. Otherwise, there is no meaning in signing the treaty that only deals with cross-border disputes because domestic cases would be discriminated against,” he said.
Munakata said without real changes in the domestic situation, Japan’s move to sign the pact will only be viewed as a way of dodging international pressure over child custody rows. He said in Japan, parents who do not have custody of their children are only allowed to spend two hours per month with their children on average.
Steve Christie, an American founder of a parental abduction victims association, said that his son, now 16, was abducted by the boy’s Japanese mother when he was 10 and that a Japanese family court suggested Christie see his son only three times a year during vacations for a total of 36 hours.
As of January this year, the United States recognized 100 active cases of parental abduction to Japan involving 140 children. In addition, Washington is aware of 31 cases in which both parents and children live in Japan but one parent has been denied access.
Another American parent who has been lobbying the governments of both Japan and the United States to address the matter, said on condition of anonymity that the official figures represent only the tip of the iceberg, calling for efficient enforcement mechanisms to ensure access between separated parents and children.
In 2009, 146,408 couples with children under 20 were divorced in Japan, including couples composed of Japanese and foreigners, according to the latest government statistics. The number of divorces among Japanese and their foreign spouses reached about 19,404 cases that year.
Of the 146,408 divorces, 13.2 percent were cases in which fathers took sole care of children, while 83.2 percent were cases in which mothers did so. Only 3.6 percent involved both parents in child rearing.
Congressman continues to push Japan to sign child abduction treaty
YOKOTA AIR BASE, Japan — A U.S. congressman left Tokyo on Wednesday after a whirlwind trip aimed at rallying Japanese support for an international child abduction treaty, an issue that has sparked a growing debate in Japan and abroad.
While lobbying members of the Diet and other government officials this week to ratify the 1981 Hague Convention on the Civil Aspects of International Child Abduction, Rep. Chris Smith said Tokyo and Washington must resolve the current cases of parental kidnapping in Japan involving U.S. citizens.
The treaty would essentially stop Japanese law from shielding people who have taken their children to Japan in violation of jurisdictional authority in another country. The 1981 treaty was written without retroactive authority and can only be applied when both countries — where the custody dispute arises — are signatories.
The New Jersey Republican said it would be a “gross miscarriage of justice” if the American parents of 103 U.S.-Japanese children who have been taken to Japan go without help should Japan sign the treaty — a decision the government ponders as the issue gains domestic and international media attention.
Smith said establishing government-to-government protocols for the U.S. and Japan to resolve current cases would help lay the foundation within Japan’s domestic legal framework to ease ratification of the treaty.
Recent moves by Japan — such as establishing working groups within the government and legislature to study whether Japan should accede to the treaty — indicate the country is seriously considering the matter for the first time.
Smith’s efforts come as diplomatic pressure from the international community on the matter has increased in the past two years.
“This problem isn’t going away,” said Smith, who is working closely with Americans whose children have been abducted to Japan and with attorney Patricia Apy, a New Jersey international family law attorney.
Apy, who traveled to Japan with Smith, said she has unsuccessfully pleaded with the government of Japan at least eight times to assist in the extradition of Japanese citizens who have fled to the country in violation of U.S. custody orders. She said those failures highlight the impunity with which parental child abductors facilitate their crimes in Japan.
Japan’s new consideration of the abduction issue should be viewed with “cautious optimism,” said Apy, who has worked as a legal consultant for the Defense Department and the Clinton administration.
It’s too early to tell whether Japan is fully on board with the concept, she said.
With Japan’s custom of sole-custody divorces that typically cut off all contact between children and their non-custodial parents, even the fundamental idea behind the 1981 Hague treaty — that both parents deserve access to their children after divorce — clashes with conventional wisdom in Japan, Japanese officials say.
Masae Ido, a Diet member affiliated with Japan’s ruling party, said her biggest concern with the Hague is the disadvantage it could impose on Japanese women who flee with their children to Japan to escape domestic abuse.
“In a litigious society like the United States, Japanese women often end up fighting a lone battle (in American courts) without getting any support,” Ido said, adding that the language barrier and a lack of financial means “contribute to their decision to leave the country without due process.”
While emphasizing the polite and productive nature of his meeting with Ido and other Japanese officials, Smith said Japan no longer can condone the clear cases of parental kidnapping within its borders.
Smith said his trip is tied to legislation he plans to introduce in the House in the coming weeks that would impose economic sanctions against Japan and other countries that fail to return kidnapped children. Smith tried to pass similar legislation in 2010 but it died in the House, and it’s unclear whether the bill has any new support this year.
“These current cases must be resolved. These parents can’t be left behind again,” Smith said.
Lawyers press for child’s best interest under int’l custody pact
Wednesday 23rd February, 2011 Japan Today
Japanese lawyers said Tuesday they have urged the government to try to secure children’s best interests if it decides to sign an international convention designed to help resolve cases in which foreign parents are prevented from seeing children ‘‘abducted’’ to Japan after their marriages with Japanese nationals fail.
The Japan Federation of Bar Associations said in a paper submitted to the foreign and justice ministries and the Cabinet Secretariat that Tokyo should guarantee in its domestic law that children should not be returned to their habitual country of residence if they are found to have been abused or subject to violence.
Satoshi Mukai, a JFBA vice president, told a press conference that even though member lawyers are divided over whether Japan should join the 1980 Hague Convention on the Civil Aspects of International Child Abduction, they compiled the paper to influence ongoing discussions at the government task force on the convention.
The treaty, which currently has 84 parties, stipulates rules and procedures for the prompt return of children to their habitual country of residence when wrongfully removed or retained in the case of an international divorce.
The government launched the task force comprising senior vice ministers in January to examine whether Tokyo should accede to the treaty. Japan is the only country among the Group of Seven major economies that has not signed the pact and it has been under international pressure to join the treaty.
The report said Japan should stipulate in domestic laws guaranteeing the implementation of the Hague Convention that children’s opinions will be appropriately heard and respected when authorities make a judgment on their return to their habitual country of residence.
The lawyers also said the legislation should make it clear that the Hague Convention is not retroactive, or only applies to wrongful child removals or retentions that occur after its entry into force in Japan and that it exempts parental child abduction cases that occur domestically.
They called on the government to raise public awareness of the Hague Convention and set a three-year preparation period before the treaty takes effect in Japan.
Whether to join The Hague Convention has triggered a heated debate in Japan, where it is customary for mothers to take sole care of children after divorces. It is not unusual for children to stop seeing their fathers after their parents break up.
Some critics in Japan argue that even though the pact says children will not be returned to their habitual country of residence if there is ‘‘a grave risk of physical or psychological harm,’’ past judgments have been made based on ‘‘limited interpretations’’ of the clause.
The JFBA urged the nation’s diplomatic missions abroad to provide necessary assistance to Japanese nationals who are involved in child custody disputes.
Naoki Idei, a member of the JFBA’s working group on The Hague Convention, said many member lawyers are concerned the treaty could endanger Japanese parents and their children who have fled abusive relationships.
As a legal remedy, the lawyers’ group called on the Japanese government to ratify optional protocols of international human rights treaties that enable individuals to file complaints for violations of their rights.
Idei said such a mechanism would help redress the situation of parents and children when a return to a child’s habitual country of residence is ordered under The Hague Convention despite claims of abuse.
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