American father wins custody of child after divorce from Japanese woman

Posted on June 19, 2012. Filed under: Child Custody and Visitation, Japanese Family Law | Tags: , , , , , |

Jun. 16, 2012 – OSAKA —

A Nicaraguan-born man who lives in the U.S. state of Wisconsin has been awarded custody of his 9-year-old daughter, ending a four-year court battle with his former Japanese wife.

Moises Garcia married Emiko Inoue in 2002 and settled in Wisconsin where their daughter Karina was born the same year.

However, Emiko took the girl with her to Japan in 2008 against her husband’s wishes. Garcia fought passionately—and spent about $350,000—to get his daughter back. The liver transplant doctor learned to speak Japanese so he could communicate with a daughter whose English was slipping away.

He hired lawyers in Japan and flew across the Pacific nine times to press his case and try to see his daughter. He enlisted the help of the U.S. State Department and his native Nicaragua. He became active in an advocacy group—Global Future—run by U.S. parents whose children were taken to Japan.

Garcia won a major victory in 2009 when the Japanese courts—which did not recognize the U.S. court that granted Garcia full custody—determined he should have visitation rights. And he kept fighting when his ex-wife appealed and the case dragged on for years.

In all that time, he only saw his daughter three times. The longest visit was for just under two hours at a hotel restaurant. Another visit lasted 10 short minutes at a school open house.

The Osaka High Court, in handing down its ruling, said that Karina had become used to life in the United States with her father and that forcibly returning her to Japan now would be bad for her.

Karina is the first U.S. child abducted by a Japanese parent who was returned to the United States with the aid of the court system.

Her case remains an anomaly, however, because Karina likely never would have been returned if her mother hadn’t flown to Hawaii in April 2011 and been arrested on child abduction charges.

Inoue spent months in a Wisconsin jail until she reached a plea deal with prosecutors: her parents would send Karina home to Garcia and Inoue would be given probation instead of a lengthy prison sentence.

Until laws change in Japan—and family courts gain the power to enforce custody rights—it will be nearly impossible for other parents to be reunited with their children, Garcia said.

“When my ex-wife was arrested, we finally got the enforcement that was missing from the Japanese courts,” he said at a press conference in a Milwaukee hotel. “If my ex-wife had never been arrested, Karina’s alienation would have been completed.”

Japan Today/AFP

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Summary of the Prefectural Offices I visited

Posted on December 26, 2011. Filed under: Child Custody and Visitation, Japanese Family Law | Tags: , , , |

From September to December I visited 41 prefectural offices. In general all most all prefectures did their best to accommodate my needs. Since my Japanese ability is not very good, I would first go to the International Affairs Division and ask for translation help. Then someone from International Affairs would accompany me to the Child Welfare Department or in some cases Child Welfare would come to the International Affairs Division. Ibaraki-ken was the most friendly prefectural office I visited. The people in the International Affairs Department and the Child Welfare Department were both great. Mie-ken was the most unfriendly prefectural office. They turned me away and told me to make an appointment if I decided to come back. They were the only prefecture that turned me away. Other unfriendly prefectures included Saitama, Oita, and Fukuoka. Some of the better prefectures were Iwate, Yamanashi, and Ibaraki, with the remaining prefectures falling in the middle. Sometimes I met with as many as 4 members from Child Welfare. Many times the people I met with would take notes as I spoke. All most every prefecture said they would share the information I gave them with others in their department. They all said they would have a meeting to discuss what they could do for me (for children who can’t meet one of their parents). But they said it was difficult for them to do anything significant. Of course I said they were limited in what they could do but I also suggested some simple things they could do, such as ask the governor to send a request to the Diet in Tokyo requesting Japan adopt “Joint Custody”. Japan is the only G-7 country that does not have some form of joint custody. I met some good people along the way. Left behind parents supported me in Fukuoka, Yamaguchi, Hiroshima, Kobe, Osaka, Kyoto, Gifu, Shiga, Aichi, Yokohama, Tokyo, and Nagano. I am grateful of their help and generosity. I was definitely able to raise awareness at the prefectural level but the general public still is largely unaware of this problem. More work needs to be done. I told all of the prefectural offices that the family court was the problem. The ruling the family courts make go against the message contained in the DVD Supreme Court video and the UNCRC. The family courts do nothing to ensure children have contact with both parents. The government encourages fathers to take a more active role in child rearing and has established policies for workers to take more time off when their kids are born. But the family courts/government seem to ignore this fact when couples divorce. After divorce one parent somehow becomes unimportant. Ten’s of thousands of loving parents, maybe more, are being denied access to one parent. You can make a difference by getting involved. Oyakonet and K-net are 2 of the biggest LBP groups in Japan. There are many other smaller groups too, most of whom support each other and work toward the same goal “spending more time with their children”. Contact Children First if you are interested in helping out.

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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。

Posted on September 4, 2011. Filed under: Divorce, Japanese Family Law, Parental Alienation Syndrome, United Nation Convention on the Rights of a Child | Tags: , , , , , |

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」(https://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

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EDITORIAL: Japan needs effective system for Hague child-custody treaty

Posted on July 14, 2011. Filed under: Hague Convention, Japanese Family Law | Tags: , , , , |

In line with Japan’s decision to join the Hague Convention on child custody, work to create necessary domestic legislation is about to start at government organs like the Legislative Council of the Justice Ministry.

The international agreement is designed to deal mainly with cross-border “abductions” by parents related to broken international marriages. If an international marriage collapses and one of the parents leaves the country with their child without consent from the other one, the treaty requires the return of the child to the country and the determination of the issue of custody according to the country’s legal procedures.

In a May Cabinet meeting, the government formally decided to sign the 1980 Hague Convention on the Civil Aspects of International Child Abduction. One key question is how to deal with cases in which the return of the child to the country of his or her habitual residence could undermine the welfare of the child.

If, for instance, a Japanese wife returns to Japan with her child to escape from her foreign husband’s violence or persecution, should the child still be returned to the country?

At the time of the Cabinet approval of Japan’s participation in the pact, the government specified several conditions that will allow it to refuse the return of the child under the law. They include: The child has suffered from the father’s violence; the husband has exercised violence against the wife in a way that has seriously traumatized the child; the wife cannot go with the child due to financial and other reasons and there is no appropriate person in the country who can take care of the child.

Some critics say these exceptional clauses would strip the teeth from the treaty. But these provisos are based on relevant court decisions made in countries that are parties to the treaty.

The government needs to explain the intentions of these clauses carefully to prevent misunderstandings that could undermine international confidence in Japan.

Whether specific cases meet any of the conditions that enable the government to refuse the return of the child will be determined by family courts in Japan, according to the government’s plan.

There are some important questions that need to be answered through in-depth discussions on actual cases. What kind of evidence is needed to prove the exercise of violence in a foreign country, for instance? What does the phrase “seriously traumatized” exactly mean?

An accumulation of precedents would foster stability in court decisions on such cases and promote public understanding of the issue.

Debate is also needed on the duties of the “Central Authority,” which is supposed to play the central role in the proceedings for the return of the child.

Under the treaty, the Central Authority is obliged to perform such functions as locating and protecting the child, providing information and advice to the parties concerned for the settlement of the dispute and securing the safe return of the child to the other country.

None of these is an easy task. Some of the contracting countries post photos of children on the Internet to find them. But that wouldn’t be acceptable in Japan.

What kind of powers and information in the possession of public institutions should be used for carrying out these tasks? Should police also become involved?

The Foreign Ministry, which will be designated as Japan’s Central Authority for dealing with cases according to the treaty, needs to define its roles and responsibilities carefully by learning from the experiences of experts handling various cases of family disputes and listening to the views of the public.

Japan will have to fulfill the obligations of a signatory country. But smooth enforcement of the law will be impossible unless there are clear ideas about actual implementation that are shared by all of society and enjoy broad public support.

There will also be cases in which Japan demands the return of a child who has been taken to another country.

There are no significant differences in parental love for children between fathers and mothers.

Japan needs to establish a system that can deal effectively with cases under the Hague Convention. The system should not favor specific positions or viewpoints and should put the priority on the child’s happiness.

–The Asahi Shimbun, July 12

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Left Behind Parents Photo Project

Posted on June 22, 2011. Filed under: Child Custody and Visitation, Divorce | Tags: , , , , , , , , , , |

Clive France has started a photo project. He intends to photograph as many left behind parents in Japan as possible. He just started this project but you can see his work in progress if you follow the link:  Left-Behind-Parent Photo Project

Please contact Clive if you want to be part of the project. He can be reached through Facebook or at fph10@gol.com

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Dispel concerns before signing Hague Convention

Posted on June 16, 2011. Filed under: Child Abduction, Child Custody and Visitation, Divorce, Domestic Violence (DV), Hague Convention, Japanese Family Law | Tags: , , , , , , , |

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.

===

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)

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Children caught in international tug-of-war as Japan hesitates to ratify Hague Convention

Posted on March 5, 2011. Filed under: Child Custody and Visitation, Domestic Violence (DV), Hague Convention | Tags: , , |

When an international marriage falls apart, heartbreak can arise when one parent flees to their home country with their child or children without the other’s consent. In Japan, which

has not yet ratified the Hague Convention on the Civil Aspects of International Child Abduction, such cases are the focus of intense debate.

The United States and Europe are ratcheting up the pressure on Japan to ratify the Hague Convention, which dictates the return of children to their original country of residence.

What kinds of situations are occurring, and what precautions should people take before marrying? We collected people’s experiences and words of advice.

* * *

“I was just in time,” said a single mother, 37, living in Tokyo, with a sigh of relief.

In 2006, she met and married a French man while she was working at a company in the United States.

However, on top of refusing to work, he was extremely violent to her at home, and declared he would not take care of their child. She decided to move out, taking her 2-year-old son to Japan in 2008 after she found a job at a foreign-owned company.

Due to the cost and bother involved in divorce procedures, she decided to wait for her relationship with her husband to fade away.

But one day, she started receiving numerous e-mails and phone calls from him in which he threatened to have her thrown in jail as an abductor if she did not return their child.

Her lawyer warned her that Japan was moving toward ratifying the Hague Convention, which could mean that her child might be taken back by her husband. She quickly filed for a divorce through Japan’s family court system.

As the woman’s husband would not divulge his contact details, he was consequently regarded by the courts as a missing person. That led to her being granted 100 percent custody of her son, and her divorce was finalized in 2010.

She had also registered her marriage in France, so she spent six months going through that country’s divorce application procedure via the French Embassy.

In the case of another woman in her 30s who got married in a different country in Europe, her husband was abusive to both her and her child. She fled to Japan five years ago, but says, “I can’t give my name because I’m afraid my child will be taken back.”

A 50-year-old woman who married an American man in Japan subsequently divorced him in 1998 because he made no financial contribution to their living expenses.

He gave up custody rights to their two children, aged 2 and 5 at the time, on the grounds that they would be raised in Japan.

However, the man later took the children to the United States without her permission. The woman felt dismayed, because she “had taken care of them 90 percent of the time.”

When she tried to meet her children in the United States, she was arrested by the police for disorderly behavior by a parent with no custody rights.

Following that incident, the woman relocated to the United States so she could fight for custody in court. Her legal struggle has lasted nine years.

Recently, her children’s wish to live with her has been recognized, and she is expected to be granted joint custody of her children in the United States.

“If Japan had ratified the Hague Convention, it wouldn’t have been necessary for me to chase them all the way to the United States,” the woman says.

The Hague Convention states that children taken overseas by one parent without the consent of the other must be returned to their country of previous residence.

If a child’s whereabouts are unknown, signatory countries must assist in tracking the child down. However, the convention cannot be applied retroactively to parents and children who moved overseas before it was ratified.

In contrast to Japan, where one parent loses custody rights after divorce, it is common in Europe and the United States for joint custody to be granted, where both parents retain responsibility for a child’s upbringing.

The proportion of custody held by each parent is always decided in court.

In Japan, marriages and divorces are finalized after the necessary documents are submitted. In other countries, the process varies, and it is necessary for parents to fulfill the requirements of the relevant country.

Ministry of Health, Labor and Welfare statistics for 2009 showed there were 34,000 marriages where one spouse held foreign citizenship, representing a sixfold increase over the past 40 years.

According to the Foreign Ministry, inquiries received as of January from foreign governments about children abducted to Japan had risen to 100 from the United States, 38 from Britain, 37 from Canada, and 30 from France.

Former United Nations staffer Etsuko Tsukagoshi, 37, who is married to an American and wrote the book “Cross-Cultural Marriage 101” (Kokusai Kekkon Ichinensei), says: “International marriages take time to rectify once they turn sour. I advise people to make adequate preparations, such as thoroughly studying the laws of their future spouse’s home country.”

Lawyer Mikiko Otani, an expert on international law, gives the following advice: “When you live overseas as a foreigner, you are inevitably in a weak position because of the differences in language and each country’s systems. I’d like people to make themselves aware of the differences with Japan, and to find information from the country itself. If you intend to take flight back to Japan because of violence from your husband, first seek protection from the local police and women’s shelters, and guidance from local specialists. They can also help you to secure evidence and provide necessary advice.”

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U.S. Secretary of State Hilary Clinton testifies on the abduction of children to and within Japan

Posted on March 2, 2011. Filed under: Child Abduction, Hague Convention, Video | Tags: , , , , , |

Congressman Chris Smith asks questions to Secretary Clinton concerning international child abduction to Japan.  Secretary Clinton talks about the cases (denial of access with in Japan and abductions to Japan). Click on the link to watch the video.

Clinton video

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Solving parental child abduction problem no piece of cake Carving out Hague caveats could halt the return of any kids snatched to Japan

Posted on March 2, 2011. Filed under: Child Abduction, Child Custody and Visitation, Hague Convention | Tags: , , , |

 

Special to The Japan Times

The Way of Cake is mysterious and paradoxical. A master of the Way can make his neighbors feel they have filled themselves with tasty cake without ever cutting off a piece. The Way allows its disciple to step outside the boundaries of rational thought by partaking of cake while continuing to possess cake.

The Zen of having your cake and eating it too can sometimes seem to be a feature of the Japanese legal system. The rule of law applies, though it is sometimes hard to know what the law actually is. There is a Constitution that protects people from the government — except when the government finds this inconvenient — as well as a criminal justice system founded on the presumption of innocence, but which manages to find pretty much everyone guilty anyways (because prosecutors only ever prosecute people who are actually guilty, you see).

Yet it is in Japan’s most recent responses to growing pressure to join the Hague Convention on the Civil Aspects of International Child Abduction that the Way of Cake may be demonstrated in its purest form.

It has always seemed highly likely (to me, at least) that Japan will eventually submit to foreign pressure and join a treaty regime that effectively represents the international community’s consensus on how cross-border child custody disputes should be decided: in the child’s country of habitual residence. At the same time, it has also always seemed unlikely that signing the treaty will result in children who have been abducted to Japan by Japanese parents actually being returned to their foreign homes. The Japanese civil justice system lacks the tools to enforce a return and, probably more to the point, it is unlikely to ever be in the interests of any Japanese judge, cop or other bureaucrat to be responsible for a crying child being taken away from a weeping Japanese mother in any particular case. The rule of law is one thing, but Japanese officialdom is not short on cake aficionados.

So it has not been too surprising to read recent news reports that the government is considering signing the convention while at the same time amending its domestic laws to ensure that children are not returned if there are concerns about domestic violence. The Japan Federation of Bar Associations (JFBA) also recently issued a formal opinion that included similar recommendations, as well as suggesting that children should not be returned if it would result in the abducting parent being subject to prosecution in their home country (the U.S., Canada and other countries have criminal penalties for parental child abduction). This would mean that in addition to the civil trial procedures (which should include appeals, according to the JFBA) used to return children in Hague Convention cases, it might be necessary to negotiate nonprosecution agreements with home country authorities in some instances.

Whatever legislation is used to implement the Hague Convention, it is hard to imagine that it will not also include a catch-all “other” caveat that will provide additional excuses for nonreturn in just about any situation. Even without the provision, the domestic violence exception alone will probably be enough to ensure that Japan fulfills its duties under the convention in terms of appearances and process, without actually accomplishing any of the goals the treaty is supposed to achieve in terms of substance.

To be fair, domestic violence is an issue that some commentators assert is not dealt with adequately under the Hague Convention in its current form, and I am certainly not suggesting that it is not a problem in cross-border — or any — marriages. Yet as a matter of law and judicial process, exceptions drafted around claims of domestic violence are likely to suffer from the same evidentiary and other practical constraints the convention is intended to address in the case of child custody decisions. In both situations, factual determinations are usually best made by courts in places where school officials, social workers and other potential witnesses are likely to reside, and where other relevant evidence is likely to be located. This is the child’s country of habitual residence under the Hague Convention, and logic suggests that claims of domestic violence or child abuse should also be adjudicated by courts where the conduct allegedly took place. This logic is even more compelling if the claims of violence are linked to a child custody dispute, and if the conduct in question also constitutes a criminal offense, as is often the case in many countries.

Whatever exceptions are provided for in Japanese law, as an evidentiary matter it is difficult to see how Japanese courts would decide whether to apply them except based on allegations by the Japanese victims, with the foreign “aggressor” being put in the position of having to prove a negative, over linguistic and geographical barriers. Unless Japanese courts are willing to start with a presumption that parents claiming abuse are lying (a cruel result for those actually fearing for their lives or those of their children), the safest thing for judges to do in any particular case will be to simply accept the claims at face value and grant the exception.

Japanese judges will be aided in this task by Japanese law, which defines spousal violence as including not just “bodily harm” but “words and deeds of one spouse that cause equivalent psychological or physical harm to the other” (this is from the Japanese government’s translation of Article 1 of the Act on the Prevention of Spousal Violence and the Protection of Victims). This already broad definition is further expanded by government publications that go so far as to include “yelling” and “ignoring” as types of domestic violence. Child abuse also is defined as including “words or conduct which cause a child significant psychological harm” (my translation of the relevant portion of Article 2 of the Child Abuse Prevention Act, for which a government translation is not yet available), though even this expansive definition is apparently not broad enough to cover abduction from abroad or the parental alienation that often follows.

To the extent that marital breakup is pretty much always emotionally traumatic for everyone directly involved, the unsubstantiated Japanese media trope about all cases of child abduction to Japan involving Japanese women fleeing from violence or abuse abroad can be said to be true: It will always be possible to find some sort of “psychological harm” that can be attributed to broadly defined violence or abuse if necessary.

However the law is written, it will likely serve as a message to Japanese living abroad that so long as they have the right story when they get off the plane with the children, they do not have to worry about a Hague Convention return order. Whether their story is legitimate or not (and I am certainly not suggesting that all claims of violence are or will be fabricated) will be beside the point — lawyers and well-intentioned bureaucrats will provide advice as to how stories should be scripted to ensure that an exception applies.

What will be interesting to see is how the law and Japanese judges deal with the situation where child custody issues and allegations of domestic violence have already been dealt with in a foreign court. If the law includes provisions calling on Japanese courts to give weight to foreign proceedings (as one hopes it would), it could have the effect of actually encouraging abduction before a foreign court has a chance to deal with any of the issues. Forum-shopping (trying to have your case resolved in the most advantageous court possible) through pre-emptive abductions is of course already a common problem in international abductions, but it is one of the things that joining the Hague Convention is supposed to discourage and remedy rather than induce.

Putting all this aside, an obvious response to concerns over domestic violence and the Hague Convention is that the treaty has been around for three decades and has been signed by dozens of countries despite domestic violence being a universal problem. There is, simply put, no “uniquely Japanese” set of issues here that involves prolonged navel-gazing over issues that are incomprehensible to foreigners.

Yet another point of rebuttal is this: If fleeing to Japan is going to be allowed if it is to escape domestic violence, then it should be OK to escape from Japan with your children for the same reason. But this type of mundane logical consistency is probably incompatible with the subtle rhetorical aesthetics of the Way of Cake.

While the Hague Convention garners most of the attention in the foreign press, there are signs that Japan could be taking steps to amend its creaky family laws to provide for joint custody and postseparation parent-child contact, neither of which are provided for under current law (preservation of access rights across borders is another goal of the Hague Convention, though the same is true of the Convention on the Rights of the Child, which Japan has signed but essentially ignores in this respect). The last draft of one version of proposed legislation I have seen includes a prohibition on the unilateral removal of a child from their home; if this provision survives the legislative process, it might be hard to square with a law that could offer a blanket invitation to Japanese mothers to bring their children home from abroad.

Yet how domestic law change fits with the Hague Convention may not be a problem, since nothing may actually happen in the case of the former. In a recent interview (Japan Times, Feb. 3), Justice Minister Satsuki Eda questioned the need to package the adoption of a joint custody regime with signing the Hague Convention, though in the same article it was also reported that “he thinks married couples should be allowed to have separate surnames, but changing the law now would be difficult.” That certain sectors of the Japanese polity are still grappling with the staggering complexities of women keeping their maiden names after marriage (and not even touching the seemingly unconstitutional prohibition on remarriage within six months of divorce that only applies to women) might be a good benchmark for how low expectations should be set regarding changes in domestic family law.

Then again, what a particular minister of justice says about anything may not be an indicator of very much in the first place. Since January 2001, 13 different people have filled the position, a one-year term ending in August or September being the most common pattern of tenure. Past ministers — past prime ministers, even — have voiced views on the Hague Convention and other aspects of family law, yet nothing much seems to happen. In 2010, then Prime Minister Yukio Hatoyama expressed a willingness to sign the Hague Convention early in 2010, and during her term at the top of the Justice Ministry pyramid, Keiko Chiba’s accomplishment was supposedly to have been resolving the marital name issue, yet the status quo continues on both fronts.

Democracy is a slow business, full of messy compromise, of course, yet when it comes to issues that matter to families and children, one is often left wondering who — if anyone — is actually in charge. Cake, anyone?

Colin P. A. Jones is a professor at Doshisha University Law School. Send comments and story ideas to community@japantimes.co.jp
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Lawmaker: DOD must do more to inform troops about child abduction issue

Posted on February 27, 2011. Filed under: Child Abduction, Child Custody and Visitation, Hague Convention | Tags: , , , , , , , , , , |

TOKYO — Resolving parental child abduction cases in Japan not only requires more attention from Japan and the U.S., but also is an issue the Pentagon must address.

Rep. Chris Smith, in Tokyo this week to lobby support for a treaty to end parental abductions, called for the U.S. military to step up efforts to help troops, since current and former service members often face impossible challenges in trying to get access to their children in Japan.

From 2007 to 2009, the number of troops who sought help from the U.S. State Department to get visitation rights with their half-American children outside the U.S. rose from eight to 34 in 14 countries, according to a 2010 DOD report on international child abduction.

Many cases go unreported because left-behind parents often realize early on that there is little that can be done to help them, said attorney Patricia Apy, who traveled to Tokyo with Smith to raise awareness about Japanese abduction cases.

In 2010, Smith passed legislation that created a partnership between the Pentagon and State Department to help better inform servicemembers on child abduction issues.

The diplomatic-military effort is still in its early stages and so far has only included training for military staff judge advocates, Pentagon spokeswoman Maj. Monica Matoush said in an e-mail Thursday to Stars and Stripes.

But active-duty and former service members whose children have been abducted to Japan contend the military could quickly and cheaply begin addressing the problem.

“With all the briefings you get in the military, they could include some information about the abduction problems,” said Michael Elias, who served in the Marine Corps and claims his estranged Japanese wife abducted his two young children to Japan from New Jersey in 2008.

“You go overseas they give you information about everything, even how not to catch an STD overseas,” he said. “But this topic goes unmentioned?”

Still, it was Marine Commandant Gen. James Conway who provided the first ray of hope for Elias in 2009.

“I wrote like 200 letters to (Secretary of State) Hillary Clinton and had called everyone from the (local) police to the FBI,” said Elias, who then e-mailed Conway.

Conway, who has since retired, quickly responded and hooked Elias up with Apy, his current attorney, who has worked as a legal adviser to the Pentagon and the Clinton administration.

“That was the best thing that could have happened,” said Elias. “I’ll never forget what he (Conway) wrote: ‘Never let it be said that Marines don’t help Marines out.’”

Like many young service members who fall in love and marry while stationed overseas, Elias never thought of the consequences associated with international marriage.

But that’s all the more reason the military should at least brief troops about the risks, he said.

“I never imagined (my wife) could or would do this,” said the 26-year-old sheriff’s deputy from his Rutherford, N.J., home this week. His parents Nancy and Miguel Elias accompanied Smith to Japan, a trip Michael Elias said he skipped for fear of being served with a Japanese court order.

Nancy and Miguel Elias said a U.S. Embassy official in Tokyo made contact with  their daughter-in-law while they were in Japan, but that she refused to allow them to visit their grandchildren.

Stars and Stripes was unsuccessful in contacting Elias’ ex-wife.

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Congressman continues to push Japan to sign child abduction treaty

Posted on February 27, 2011. Filed under: Child Abduction, Child Custody and Visitation, Divorce, Hague Convention | Tags: , , , , , , , |

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.

reedc@pstripes.osd.mil

sumidac@pstripes.osd.mil

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March hearings with experts, bar group to mull Hague treaty

Posted on February 27, 2011. Filed under: Child Abduction, Child Custody and Visitation, Hague Convention | Tags: , , , |

Kyodo News

The government said Friday it will conduct hearings in March with experts regarding whether Japan should join an international treaty that deals with cross-border child-custody disputes.

“Given that there are people who are for or against the signing of the Hague treaty, it is important for us to listen sincerely to the opinions from both camps,” Deputy Chief Cabinet Secretary Tetsuro Fukuyama told reporters.

The Japan Federation of Bar Associations will be among those attending the hearings, Fukuyama said after the latest meeting of a government task force studying the matter.

Japan has been under international pressure to join the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which is designed to help resolve cases in which foreign parents are prevented from seeing their children in Japan after their marriages with Japanese nationals fail.

In many cases, the estranged Japanese parent spirits children out of their nations of domicile, even in defiance of overseas court custody rulings.

Critics in Japan have raised concerns over joining the pact, saying it could endanger Japanese parents and their children who, they claim, have fled from abuse by non-Japanese spouses.

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Lawyers press for child’s best interest under int’l custody pact

Posted on February 25, 2011. Filed under: Child Abduction, Child Custody and Visitation, Divorce, Domestic Violence (DV), Hague Convention | Tags: , , , , |

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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日本女性は「誘拐犯」 米大手TVが“反日キャンペーン”

Posted on February 18, 2011. Filed under: Child Abduction, Child Custody and Visitation, Divorce, Hague Convention | Tags: , , , , |

2011.2.17 19:04

【ワシントン=佐々木類】米大手テレビ「ABCニュース」が16日、米国人男性と日本人女性による国際結婚の破綻に伴う子供の親権問題を特集し、日本政府関係者に波紋を広げている。

民事上の問題にも関わらず子供を日本に連れ帰った日本人女性を「誘拐犯」呼ばわりし、犯罪者に仕立て上げる演出だった。1月の日米外相会談でも取り上げられるなど、今後、日米間の外交問題に発展しそうな雲行きだ。

番組は15日の午後6時半に放映を開始。16日も複数回にわたって数種類の映像を流し、1回最大約8分間放映された。

スタジオに米国人男性15人が登場し、女性司会者の質問に「海外派兵されて帰宅したら妻とともに子供がいなくなっていた」と訴え、涙ながらに子供との面会を訴える参加者もいた。

番組は、米国人男性から提供を受けた子供の写真を手がかりに日本で取材した様子も放映した。

ある日本人女性が子供を自転車の荷台に乗せて移動するのを車で尾行。ABCの女性記者が、「自分を誘拐犯だと思わないか」と英語で詰問、この日本人女性がたどたどしい英語で「米国では生活できないので、子供を誘拐するか自殺するしかなかった」と答えさせている。

今年1月、ワシントンで行われた日米外相会談では、クリントン国務長官が前原誠司外相に、子供の連れ去りに関するハーグ条約の早期締結を要請。前原氏は、「真剣に検討を進めている」と応じている。日本人女性が子供を連れ帰るのは、米国人男性の家庭内暴力(DV)から逃れるケースもあるとされるが、実態は不明だ。

問題の背景には、子供もの親権に関する日米両国の国内法の違いがある。

離婚した場合、米国の州法では、合意があれば双方に親権が認められるケースが多いとされる一方、日本では、民法の規定で離婚後は片方の親にのみ親権が与えられる。

ABCニュースは、米連邦捜査局(FBI)が誘拐事件として関心を持っていることにも言及。全米規模のキャンペーンは、リコール問題で集中砲火を浴びたト ヨタ自動車に続き、新たな“日本バッシング”の火種となりかねない。在米日本政府関係者は「対日感情の悪化は避けられない」と気をもんでいる。

■ハーグ条約 オランダのハーグで締結された国際条約の総称。国家間の不法な子供の連れ去りを防止することを目的に1983年に発効した。親権を持つ親か ら子供を誘拐した場合、その子供がいた場所へ帰らせることを加盟国に義務付けさせる。日本は親権に関する民法との整合性から未加盟だが、2009年、外務 省内に「子の親権問題担当室」を設置し、加盟の可否を検討中。

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Japan still split on treaty over child custody

Posted on February 12, 2011. Filed under: Child Abduction, Child Custody and Visitation, Divorce, Domestic Violence (DV), Hague Convention | Tags: , , , , |

BY MASAHIRO TSURUOKA STAFF WRITER Asahi Shimbun 2011/02/11

Even as Japan faces rising international pressure to ratify a treaty to resolve child custody battles between Japanese and foreign ex-spouses, public opinion in this country remains sharply divided over the issue.

The Hague Convention on the Civil Aspects of International Child Abduction stipulates that if one parent takes the couple’s offspring to his or her home country without the consent of the spouse, the child or children must be returned to the country of previous residence.

The convention applies to children aged 15 or younger.

Japan and Russia are the only nations among the world’s eight major economies that have not ratified the 1980 Hague Convention.

A typical case under the Hague Convention is that of a Japanese woman who returns to Japan with her child after her marriage fails.

Japan has chosen not to ratify the treaty in part to protect returning Japanese women who say they are fleeing domestic violence or other serious troubles.

But abroad, their actions are often seen as bordering on criminal behavior. In some countries, the women are accused by their ex-husbands of kidnapping or abducting their own children.

The U.S. Federal Bureau of Investigation and other law enforcement authorities are looking into several such abduction cases.

In Japan, opinions are split on the issue.

A Foreign Ministry survey of Japanese involved in such cases drew 22 responses in favor of ratification of the treaty and 17 against. The survey was released Feb. 2.

The ministry had received 64 responses as of November to its questionnaire posted on its website and other venues.

In support of ratification is the view that concluding the treaty, which serves as the international rule to settle cross-border child custody disputes, is necessary given the rising number of interracial marriages and divorces.

Others support ratification because Japan is being painted overseas as a country that defends the abduction of children.

In the other camp, dissenters say that Japan should not conclude the treaty because taking children away from a violent foreign spouse is a “last resort” for troubled Japanese women.

Moreover, fighting a custody battle in court in the child’s country of previous residence would burden the Japanese spouse with exorbitant legal fees or language barriers.

Often, such court rulings would not be in the Japanese parent’s favor, dissenters say.

Foreign Ministry statistics as of January on cases in which Japanese had brought their children back to Japan against the will of a divorced partner found 100 in the United States, 38 in Britain, 37 in Canada and 30 in France.

The tally is based on the number of cases for which foreign governments had contacted the Japanese government.

If Japan signs the Hague Convention, the government would be obliged to fulfill its legal responsibility by complying with requests made by foreign parents.

The government would be required to locate the “abducted” children and return them to their previous country of residence.

So far 84 countries have signed the Hague Convention.

International pressure on Japan to conclude the treaty is mounting.

France last month passed a resolution in the Senate to demand Japan’s prompt ratification of the Convention.

The U.S. House of Representatives took similar action in September.

U.S. Secretary of State Hillary Clinton stepped up pressure on Japan over the issue in December and again in January, when she met Foreign Minister Seiji Maehara.

Maehara reportedly told her in the January meeting, “Japan will seriously consider the matter.”

The government appears to be moving toward concluding the treaty.

At the instruction of Prime Minister Naoto Kan, the government formed a task force comprising senior vice ministers of relevant ministries last month to weigh the issue.

Kan will likely promise to ratify the treaty when he visits Washington in May or later.

The Kan administration hopes to pass the related legislation at the same time it seeks Diet approval for the ratification.

The government plans to incorporate a clause in proposed bills that would allow parents to refuse to return their children in cases involving domestic violence.

But it is still hard to say if things will turn out the way the Kan administration wants.

Many DPJ members and Justice Ministry officials have expressed strong reservations about the speed at which the government is moving to ratify the treaty.

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Joining Hague in children’s best interest, U.S. adviser says

Posted on February 9, 2011. Filed under: Child Abduction, Child Custody and Visitation, Domestic Violence (DV), Hague Convention | Tags: , , , , , |

Staff writer for the Japan Times

If Japan wants to promote the best interests of children, it should sign the Hague Convention, the special adviser to the U.S. State Department on issues pertaining to international parental child abductions urged Tuesday.

Susan Jacobs, in Tokyo on a four-day visit during which she met with officials at the Foreign and Justice ministries, said the 1980 Hague Convention on the Civil Aspects of International Child Abduction acts as a deterrent to parental child abductions.

Members of the Hague Convention “are very interested in having Japan join this convention because the convention sets out a legal framework for the return of children who have been abducted from one country to another country,” Jacobs said. “And I think that we have found that when this convention is in place, it lowers the number of abductions and encourages parents to reach custody agreements with each other in the best interests of the child.”

Japan has been under international pressure to sign the treaty, but there is strong domestic opposition, especially among mothers who took their kids to Japan, claiming they were fleeing domestic violence.

Jacobs pointed out that while the Hague treaty is not about domestic violence, women in many member states have resources to turn to, including the police, social services and shelters to seek protection from abuse.

“There is no need for anyone to continue to be subjected to domestic violence,” Jacobs said. “It is wrong, however, for someone who may or may not have been the victim of domestic violence to abduct their children from one country and take them to another when there is recourse in the country in which they were living.”

The government launched a study panel last month to discuss whether Japan should sign the Hague Convention. Jacobs expressed optimism with the recent progress made, including interest by the Japanese media and the public.

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Japan custody heartache for foreign fathers

Posted on February 7, 2011. Filed under: Child Abduction, Child Custody and Visitation, Divorce, Domestic Violence (DV), Hague Convention | Tags: , , , , , |

By Roland Buerk BBC News, Tokyo

Thousands of Japanese people marry foreigners every year. Many are happy – but if the marriage breaks down the foreign spouse may end up cut out of the children’s lives.

Alex Kahney
Alex Kahney often visits the places he used to take his children

Alex Kahney, who works for a medical publisher, still lives in what was once the family home, now nearly bare of furniture but full of memories.

There are photographs of his daughters on the walls of the small four-storey town house in one of the nicer Tokyo neighbourhoods.

Their favourite stuffed toys, a dog and a mouse, are on the back of the sofa – reminders of the little girls, aged nine and seven, who he has not seen for months.

His Japanese wife took them with her, along with much of the contents of the house, when their marriage broke down, and is refusing to let him see them.

Mr Kahney first tried the police.

But when he told them that his wife had abducted their children, they laughed at him.

What makes it more painful is that their new home is just down the road.

Japanese marrying a foreigner 1970-2005
  • The number of Japanese men marrying foreign women is higher than the number of Japanese women marrying foreign men. It is rare for a Japanese man to marry a Western woman, but Japanese women frequently marry Western men.
  • A Japanese man marrying a foreigner is most likely to marry a woman from China, the Philippines or Korea, in that order. A Japanese women marrying a foreigner is most likely to marry a man from Korea, the US or China.

For the whole story please click on the link below:

custody heartache

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“Close Up Gendai” international divorce trouble rapidly growing (video)

Posted on February 3, 2011. Filed under: Child Abduction, Hague Convention, Video | Tags: , , , , |

If you understand Japanese please watch the 25 minute video about international child abduction and signing the Hague

Japanese video

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MOJ Eda talks about signing the Hague

Posted on February 3, 2011. Filed under: Child Abduction, Divorce, Hague Convention, Japanese Family Law | Tags: , , , , , , , , |

Japan is looking at signing the Hague Convention on the Civil Aspects of International Child Abduction, which is aimed at promptly returning children illegally taken by a parent out of the country of their habitual residence.

The question has arisen over whether the Civil Code should also be changed to allow dual parental rights after divorce. Eda said the Justice Ministry “is now discussing the matter, but I personally feel that allowing dual parental rights doesn’t necessarily have to” be packaged with signing the convention.

Signatory countries, particularly the United States, France and Canada, are urging Japan to join the convention against international child abductions by parents.

Some people whose former spouses don’t let them see their children in Japan argue that signing the convention doesn’t guarantee their access to children unless dual parental rights are also allowed.

This problem doesn’t only concern foreigners. Japanese parents — fathers in most cases — also can’t see their kids if their ex-spouses say no.

In Japan, those with parental rights have discretion over how often their ex-spouses can see their offspring. Shared parental rights are currently not allowed by the Civil Code because of the cultural belief that a stable environment is considered the most important factor for children.

“I guess it comes from the idea that letting a single parent have parental rights is good because it is simple,” Eda said.

Parents who were victims of abusive relationships are urging the government to keep parental rights to one person and not sign the Hague Convention because, they say, the current legal system protects them from their former spouses.

The Justice Ministry manages the Civil Code, and thus would likely be the source of any bills revising it.

Turning to other developments in the ministry, Eda said officials are studying how other countries deal with making the investigation process by police and prosecutors more transparent.

To read the whole story (some of which deals with the death penalty) please click on the link below:

MOJ Eda sign Hague

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The child abduction debate

Posted on February 1, 2011. Filed under: Child Abduction, Child Custody and Visitation, Hague Convention, Japanese Family Law | Tags: , , , , |

Japan’s been under pressure for years to tackle a problem that’s a comparatively minor irritant on the annual diplomatic calendar, but which is a source of enormous emotional pain for the individuals involved.

As the number of international marriages grows, an inevitable if sad byproduct has been the rise of divorces, putting the fate of bi-racial children at the centre of sometimes bitter personal disputes. In some cases, Japanese mothers have taken their kids from foreign fathers and brought them to Japan, where they’re beyond the reach of global law, at least for now.

The issue has been forced onto the slow-moving bureaucratic agenda by the attentions of the world’s media. Last year, CNN extensively covered Christopher Savoie’s arrest and eventual release after he snatched his kids as they walked to school in Fukuoka.

 

The website of Japan’s Foreign Correspondent’s Club features a harrowing tale of Frenchman Arnaud Simon, who killed himself last November, apparently in frustration at being blocked from joint custody of his half-Japanese son. According to journalist Regis Arnaud, another French man in the same predicament, Christophe Guillermin, took his own life last June. Those tragedies prompted French lawmakers recently to adopt a resolution calling on Japan to join over 80 other signatories to the Hague Convention on Child Abduction.

Prime Minister Naoto Kan is under pressure to sign-up during his next trip to the United States, scheduled for June. NHK reports that the Japanese government is ‘facing difficulties’ on deciding its position because it remains concerned about Japanese women who return with their children to ‘escape abusive foreign partners.’

What some reports neglect to mention is that Japanese fathers, in overwhelming numbers (CNN cites a figure of 100 cases of children abducted by non-custodial Japanese parents) struggle with the same problem. If Japanese experts are to be believed, most fathers are happy to accept sole custody by the mother—but not all. And, as an article in yesterday’s Sankei newspaper suggests, fathers too can withhold custody, with unusual results:

The article says that amid a divorce dispute, a father has refused to allow the mother access to their four-year-old daughter even though they are still legally married. The mother, Terumi Aoyagi (36) is still married to her husband, but he filed a complaint with the police after she, along with her mother (the child’s grandmother, 63), tried to ‘get access to’ (read snatch) the daughter in the car park of the girl’s pre-school. Their attempt failed after a teacher stopped them.

According to the article, both mother and grandmother were arrested for ‘kidnapping of a minor’ on January 27 and are still in jail.

The fact that the alleged kidnapping also happened in Fukuoka will prompt some to ask the obvious questions. If it’s OK for a mother to take her children from the United States to Japan, why isn’t it acceptable for a father to come and take them back? If it’s wrong for a father to snatch his children on the way home from school, why is it acceptable for another father to deny access to his daughter, then have her mother arrested when she tries to get it?

Whatever your answers to those questions are, it seems clear that when the police can arrest and detain a mother for the crime of trying to see her child, there’s something badly amiss with the custody system.
The Diplomat (Feb. 1st, 2011)

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Video’s of British fathers who can’t see their kids

Posted on January 31, 2011. Filed under: Child Custody and Visitation, Video | Tags: , , , , , , , , , , , |

Two British father’s are fighting to see their kids. Alex and his kids live in Japan but his ex has prevented him from seeing them. Shane lives in Britain and his kids went to Japan with their mother to visit a sick relative. They never came back and Shane has no contact with his kids. Click on the links below to watch the BBC videos.

Alex Kahney

Shane Clarke

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Japan sets up task force as France adds pressure on parental abduction

Posted on January 27, 2011. Filed under: Child Abduction, Hague Convention | Tags: , , , , , , , , , , , |

Wednesday 26th January, 2011

According to the Japan Today, the Japanese government set up a task force Tuesday to examine whether to join an international convention on child custody disputes.

The move came as the French Senate adopted a resolution by an overwhelming majority urging Japan to promptly join the 1980 Hague Convention to help resolve cases in which foreign parents are prevented from seeing their children in Japan following failed marriages with Japanese nationals.

The resolution followed a similar one adopted last September by the U.S. House of Representatives. Japan is being urged to join the convention to help resolve cases in which foreign parents are prevented from seeing their children in Japan after failed marriages with Japanese nationals.

The convention provides a procedure for the prompt return of children to their habitual country of residence when they are wrongfully removed or retained in the case of an international divorce. It also protects parental access rights.

The resolution calls on Japan to amend its legislation, saying Japanese laws do not grant joint custody to divorced parents and often restrict the visitation rights of French parents.

In Tokyo, Foreign Minister Seiji Maehara said Tuesday that the government has been holding discussions on the matter with the ruling Democratic Party of Japan and its coalition partner, the People’s New Party, to formulate the country’s policy.

Deputy Chief Cabinet Secretary Tetsuro Fukuyama said after the first meeting of the newly launched government task force, comprising senior vice ministers and other top officials concerned, that Tokyo will consider ‘‘from scratch’’ whether to join the Hague Convention.

‘‘At the moment we have no plans to set a date, but we don’t intend to let discussion drag on,’’ Fukuyama said when asked how long the government will need to reach a decision on the matter.

As Japan has yet to join the convention, non-Japanese parents cannot meet their children if Japanese parents take their children to Japan from the country in which the family had been living.

Of the Group of Seven major economies, only Japan has yet to ratify the convention, which currently has 83 parties.

Hundreds of American parents have leveled accusations of kidnapping against their former Japanese spouses.

But some critics in Japan have raised concerns over joining the Hague Convention, saying it could endanger Japanese parents and their children who have fled from abuse by non-Japanese parents.

Last October, the ambassadors of 11 countries and the European Union in Japan met with then Justice Minister Minoru Yanagida and urged the Japanese government to join the convention.

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Interview (video) with Doshisha University Law Professor

Posted on January 25, 2011. Filed under: Child Abduction, Child Custody and Visitation, Japanese Family Law, Video | Tags: , , , , |

Colin Jones is a law professor at Doshisha University in Kyoto. He has studied Japanese Family Law, Japanese Courts, Child Custody, Divorce, and Parental Abduction for the last 6 years. He did an interview in the summer of 2009 about Japanese Family Courts and why they do what they do. The interview can be found on youtube. Colin is very knowledgeable and he compares Japanese Family Law and California Family Law at times. If you want to learn more about the Family Court System in Japan please watch the 50 minute interview. (It is a five part series each being 10 minutes).

Part I

Part II

Part III

Part IV

Part V

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In the Best Interest of the Court: Child Custody and Divorce

Posted on January 16, 2011. Filed under: Child Custody and Visitation, Japanese Family Law | Tags: , , , , , , , , , , |

Colin Jones, law professor at Doshisha University in Kyoto, has written a paper titled “IN THE BEST INTERESTS OF THE COURT:  WHAT AMERICAN LAWYERS NEED TO KNOW ABOUT CHILD CUSTODY AND VISITATION IN JAPAN”. The title speaks for itself. If you are divorced, thinking about getting a divorce, or know someone that is divorced, I highly recommend that they read this long and informative paper about the Family Courts in Japan.

“Thus, while my description of the Japanese system in the context of child custody and visitation may seem to portray it as illogical, it is not. It functions adequately in protecting the interests of the judicial system and its actors. Of course, protecting the interests of children is also a goal of the family court, but in the context of divorce, there is no way for an outsider to separate the best interests of the child from that of the court. Tellingly, when child custody enforcement problems are debated, the focus is often not on the tragic impact it has on parents and children, but on its effect on the people’s trust in the legal system.”

Professor Jones discusses judges, mediators, investigators, custody (shinken & kangoken), visitation rights, and more.

You can read the full 104 page pdf report here.

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