Nicaraguan dad seeks change in Japan’s judicial system on child custody

Posted on November 29, 2011. Filed under: Child Abduction, Child Custody and Visitation | Tags: , , , , , , , , |

TOKYO (Kyodo) — A U.S.-based Nicaraguan man who fought a legal battle with his Japanese ex-wife for custody of their 9-year-old daughter has called for changes in the Japanese judicial system, saying the lack of power to enforce court rulings hinders the resolution of such disputes.

Following a drawn-out conflict involving legal action in two countries, the mother last week consented to return the child to the father within 30 days in a plea agreement in a court in Milwaukee, Wisconsin.

In an e-mail interview with Kyodo News after the ruling, the father, a permanent resident of the United States, said he believes his former wife was arrested on a felony charge as U.S. law enforcement authorities thought civil court procedures would not deliver a desirable outcome soon.

When she went to Hawaii to renew her green card in April, the 43-year-old woman from Takarazuka, Hyogo Prefecture was nabbed on a charge of concealing the daughter from the 39-year-old father.

Following the plea agreement, the case in the U.S. court will be held open for three years, after which the felony charge will be reduced to a misdemeanor if she adheres to the court order. The mother plans to live in the United States and seek regular visitation rights, her American lawyer said.

In 2008, the couple filed for divorce and days before the father was granted custody of their child by a U.S. court, the woman took the girl to Japan. After returning home, the mother sought to become the girl’s custodial parent, in place of the father, as she claimed to have been abused by her former spouse.

In March this year, the Itami branch of the Kobe Family Court decided to change the custodial parent as requested by the mother, underlining the fact that the daughter had become accustomed to life in Japan.

But the court rejected the woman’s claim of abuse due to a lack of evidence and granted visitation rights to the father to maintain the daughter’s contact with the languages and cultures of the United States and Nicaragua, according to the mother’s Japanese lawyer.

Both parents filed a protest against the Kobe court ruling and the case is now being examined at the Osaka High Court. The woman’s Japanese lawyer said she will likely drop her appeal in Japan following the plea agreement in the United States.

The man welcomed the Milwaukee court decision as “the first case of a child abducted to Japan to be returned to the habitual residence.” He also said the best interests of his daughter will be protected as she will have access to both parents and her “multicultural heritage.”

He said the case was important as it “allowed us to show the inefficiencies of the Japanese legal system,” referring to what he calls “the lack of enforcement” and “protectionism” in the country’s court process.

The father said his former wife has limited his contact with the daughter in Japan despite the couple’s agreement in the U.S. court to ensure communication between the man and the child.

As an example of the lack of the Japanese courts’ power to enforce their rulings, the man said his former wife “when urged by the judge to let me see my daughter, she simply said ‘No’ and turned around.”

In a rare decision in Japan, the Kobe court granted him visitation time of about two weeks in Japan and 30 days in the United States every year until August 2017. But the mother said such requirements would be “a significant burden” for the daughter and appealed the ruling, the lawyer said.

The lengthy civil court proceedings in Japan may have prompted the U.S. law enforcement authorities to issue an arrest warrant for her a few weeks before her capture in Hawaii, the man said.

To deal with an increasing number of cross-border parental child abduction cases, the Japanese government decided in May to join the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which sets rules and procedures for the prompt return of children under 16 to the country of their habitual residence.

Japan is the only Group of Eight country yet to join. In the country, which adopts the sole custody system, courts tend to award mothers custody and it is not unusual for children to stop seeing their fathers after their parents break up.

The man said he doubts his case could have been settled more smoothly if Japan had been a signatory of the pact, saying his ex-wife “would have used one of the so-called Japanese exceptions for the Hague,” pointing to her claim of his violence.

The Japanese government has been preparing domestic legislation to endorse the Hague Convention, with the aim of submitting a bill to a regular Diet session to be convened early next year.

The bill would indicate exceptions to the returns of children. The outline of the bill worked out by the government sets two conditions — when the abducting parent has fled from an abusive spouse and when such a parent could face criminal prosecution in his or her country of habitual residence.

The Hague Convention only says children will not be returned when there is “a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation” and does not stipulate specific conditions.

“If Japan makes significant changes in the domestic law, including securing and enforcing visitation rights and court orders, I believe that most parents will look for a ‘civil’ solution, and a criminal option will be left behind,” the Nicaraguan man said.

Masayuki Tanamura, a professor of Waseda University specializing in family law, said Japan’s accession to the convention will likely lessen “forcible” solutions of custody rows through criminal prosecutions as it would enhance cooperation between judicial authorities of the countries involved.

Tanamura also said Tokyo needs to work out a system to provide support to anyone involved in such disputes both within Japan and abroad to ensure the welfare of children. “We have long avoided a debate on how the parent-child relation should be after divorce, but we now have to create a system centered on children’s benefits,” he said.

Kyodo News has refrained from disclosing the names of the family members involved in this child custody case for privacy reasons.

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One Response to “Nicaraguan dad seeks change in Japan’s judicial system on child custody”

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Mr. Tanamura, the United States and many other countries already have systems in place that are centered on children’s benefits. Japanese nationals residing in the U.S. and such other countries need only to fulfill their obligation to obey the laws and court custody orders that protect children in those countries. They don’t need to wait for Japan to develop, road test and produce the wheel. Problem solved.


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