Mother Loses Custody After Preventing Father From From Seeing Child

Posted on December 15, 2014. Filed under: Child Custody and Visitation, Divorce | Tags: , , |

Family Law Express December 1st, 2014 | Written By: Kay Dibben

Selfish separated parents who try to stop their children having a relationship with their former partners are having the kids taken off them by courts.

A judge recently took the “drastic step” of ordering that a girl, eight, who had lived with her mother since her parents separated when she was 13 months, instead live with her father.

Changing the child’s primary carer from the mother to the father was the only way the girl could have a meaningful relationship with both parents, Judge Evelyn Bender decided.

The mother had for years interfered with her daughter’s court-ordered time with her father, who did not see his child for months at a time.

“The mother tells (the child) that her father is going to take her away and not allow her to ever see her mother again,” Judge Bender said.

The anxious little girl had told a Court family consultant it was her dream to be able to “love Mummy and Daddy at the same time”.

Brisbane family law specialist Deborah Awyzio said it was only in extreme cases that a child was taken away from one parent and put in the care of the other.

“This is a warning that parents need to be child-focused in every parenting decision they make and not self-focused,” Ms Awyzio said.

“People think it is extreme when a child is removed from the carer they have been with, but the focus is on the child’s right to have a meaningful relationship with both parents.”

In the recent case the court heard the couple, who separated in 2007 after five years together, had been in ongoing litigation over their daughter’s living arrangements.

The court heard the mother’s unremitting campaign to undermine her child’s relationship with her father distressed the child, who loved both parents.

Judge Bender said if the girl lived with her father she would be “allowed to be a child”.

She gave the father sole responsibility for the child’s health and education and allowed the mother to spend time with the girl on alternate weeks and during holidays.

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Pope Francis: Children have right to a mother and father

Posted on December 15, 2014. Filed under: Child Custody and Visitation, Divorce | Tags: , , |

Ann Schneible Nov 17, 2014

Children have the right to be raised by a mother and a father, Pope Francis said, emphasizing that “the family is the foundation of co-existence and a remedy against social fragmentation.”

The Pope made these remarks on Nov. 17 at the opening of the three-day international, interfaith colloquium entitled The Complementarity of Man and Woman, currently underway in the Vatican.Also referred to as the “Humanum” conference, the gathering is being sponsored by the Congregation for the Doctrine of the Faith, in collaboration with the Pontifical Council for the Family, the Pontifical Council for Inter-religious Dialogue, and the Pontifical Council for the Promotion of Christian Unity.

“To reflect upon ‘complementarity’ is nothing less than to ponder the dynamic harmonies at the heart of all creation,” he said. “All complementarities were made by our creator, so the author of harmony achieves this harmony.”

Complementarity, which is at the core of this gathering, “is a root of marriage and family,” the Pope said. “For the family grounded in marriage is the first school where we learn to appreciate our own and others’ gifts, and where we begin to acquire the arts of cooperative living.”

Although the family often leads to tensions – “egoism and altruism, reason and passion, immediate desires and long-range goals” – it also provides “frameworks for resolving such tensions.”

Pope Francis warned against confusing complementarity with the notion that “all the roles and relations of the two sexes are fixed in a single, static pattern.” Rather, he said, “complementarity will take many forms as each man and woman brings his or her distinctive contributions to their marriage and to the formation of their children – his or her personal richness, personal charisma.”

“Marriage and family are in crisis,” he said, with the “culture of the temporary” dissuading people from making the “public commitment” of marriage.

“This revolution in manners and morals has often flown the flag of freedom, but in fact it has brought spiritual and material devastation to countless human beings, especially the poorest and most vulnerable.”

Pope Francis noted the evidence pointing to the correlation between “the decline of marriage culture” and the increase of poverty and other “social ills”. It is women, children, and elderly persons who suffer the most from this crisis, he said.

The Pope likened the crisis in the family to threats against the environment. Although there has been a growing awareness of ecological concerns, mankind has “been slower to recognize that our fragile social environments are under threat as well, slower in our culture, and also in our Catholic Church.”

“We must foster a new human ecology,” he said.

“The family is the foundation of co-existence and a remedy against social fragmentation,” the Holy Father continued, stressing the importance of marriage in the raising of children.

“Children have a right to grow up in a family with a father and a mother capable of creating a suitable environment for the child’s development and emotional maturity,” he said.

Pope Francis encouraged the participants in the Colloquium to especially take account of young people. “Commit yourselves, so that our youth do not give themselves over to the poisonous environment of the temporary, but rather be revolutionaries with the courage to seek true and lasting love, going against the common pattern.”

He also warned against being moved by political agendas. “Family is an anthropological fact, he said, which cannot be qualified “based on ideological notions or concepts important only at one time in history.”

Pope Francis concluded his address by confirming his participation in the World Meeting of Families to take place in Philadelphia, USA, in 2015.

Following the Holy Father’s remarks, CDF Prefect and moderator of the colloquium’s opening sessions, Cardinal Gerhard Mueller, spoke at length on the central themes of the gathering.

At the core of the Colloquium which has gathered representatives from diverse religious traditions, is the question of the import of man and woman’s complementarity “for the relationship between the human person and God”.

Recounting the Genesis account of the earth’s creation, followed by that of man and woman, Cardinal Mueller said in his intervention the “difference between man and woman, both in the union of love and the generation of life, concerns God’s presence in the world.” It is man’s calling “to discover [this] in order to find a solid and lasting foundation and destiny for our life.”

“In sexual difference,” the cardinal went on, the man and the woman “can only understand him or herself in light of the other: the male needs the female to be understood, and the same is true for the female.”

It is therefore the the aim of the colloquium, Mueller concluded, “to explore the richness of sexual difference, its goodness, its character as gift, its openness to life, the path that opens up to God.”

Later that morning, keynote speaker Rabbi Lord Jonathan Sacks opened his intervention by telling “the story of the most beautiful idea in the history of civilization: the idea of the love that brings new life into the world. There are of course many ways of telling the story, and this is just one.”

The Rabbi explored the evolutionary development leading to the human family, from which emerged “the union of the biological mother and father to care for their child.” Then, with the development of cultures came the normalization of polygamy: “the ultimate expression of inequality because it means that
many males never get the chance to have a wife and child.”

“That is what makes the first chapter of Genesis so revolutionary,” he said, “with its statement that every human being, regardless of class, colour, culture or creed, is in the image and likeness of God himself.”

Rabbi Sacks spoke at length about the development of family within the Jewish tradition, noting how the Jews were “became an intensely family oriented people, and it was this that saved us from tragedy.”

From the destruction of the Temple in 70 A.D through centuries of persecution, he said, “Jews survived because they never lost three things: their sense of family, their sense of community and their faith.”

“Marriage and the family are where faith finds its home and where the Divine Presence lives in the love between husband and wife, parent and child,” he said.

In an interview with CNA, President for the Pontifical Council for Promoting Christian Unity, Cardinal Kurt Koch, reflected on the fundamentals of complementarity, beginning with the first chapter of Genesis.

“We have this very beautiful idea, an image that the relationship between man and woman is an image of God,” he said. “In this sense, in the Catholic Church, the marriage between husband and wife is a Sacrament. This Sacramental issue is very important for us.”

Citing the interfaith character of the Colloquium, Cardinal Koch, who served as moderator for the afternoon sessions he stressed the need to give witness about complementarity “first of all in an ecumenical way.”

The chance to “give witness about family and marriage in an inter-religious dimension is a very beautiful opportunity,” he said.

David Quinn, director of the IONA institute and newspaper columnist, was among the participants in the colloquium. “The conference is obviously an extremely major international gathering about the importance of marriage between a man and a woman,” he told CNA.

“It’s probably the most significant gathering of its kind to date that’s been organized by the Church, and specifically by the CDF.”

“The loud and clear message for me,” Quinn said, “is the importance of the complementarity of men and women, and particularly the right of a child to be raised by their own mother and father whenever that is possible.”

Citing Ireland’s upcoming referendum on same-sex marriage, set to occur in 2015, Quinn said “this is obviously a loud and clear message that people need to hear. That the sexes are complimentary.”

“This is imbedded in the very nature of marriage itself. You deny the nature of marriage if you deny the importance of the complementarity of the sexes, and above all if you deny that mothers and fathers should raise children together.”

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The Unintended Effects of Divorce on Kids

Posted on November 30, 2014. Filed under: Divorce | Tags: , , |

  November 25, 2014

It’s long been known that children can suffer when their parents divorce — and new research has found the fallout to be surprisingly powerful, with effects ranging from poor test scores to the onset of eating disorders. But the good news, according to Resolution, the U.K. organization behind the survey, is that it’s the level of angry fighting, and not the divorce itself, that appears to cause the most fallout.

“It’s not so much the fact of parental separation, it’s the conflict,” Resolution director Jo Edwards tells Yahoo Parenting. “A lot of it is the way that parents manage their conflict.

The organization of 6,500 family lawyers, mediators, and therapists in England and Wales is one that believes in a non-confrontational approach to divorce and other family conflicts. It surveyed 500 young people ages 14 to 22 about the effects of divorce, and discovered, among other findings, that one in five said that the split negatively impacted their GCSE scores (similar to SAT scores here). One in eight, meanwhile, said they tried or newly considered trying drugs, and one in three noted having a change in eating patterns and the possible beginnings of an eating disorder. In addition, nearly a third of respondents reported that one parent had attempted to turn them against the other; one in four said parents tried to involve them in their dispute; and almost a quarter said they found out on social media that one of their parents had a new partner.

“We were surprised and quite shocked by the extent of some of the findings,” Edwards notes, particularly when considering the impact of the 230,000 people in England and Wales, many of whom are parents, who divorce each year. That number is even larger in the more highly populated U.S., of course, which sees more than 800,000 divorces annually. “Many think that court is the only way” to hammer out the details of custody and visitations during a divorce, she says. But when both parents use mediation or therapy, and agree to go through their divorce in “a more civilized way, focusing mainly on the good of the family,” she says, children fare better.

“It’s the hostility and anger that so often puts kids in the middle — and young kids, in particular, blame themselves,” Ken Neumann, a child psychologist and founder of the New York City based Center for Family and Divorce Mediation. “Then they believe they’re bad and incorporate that belief into their lives, which leads to low self-esteem, doing poorly in school, eating disorders, drugs.”

The trick, he notes, is to not ever put your kids in the middle, and to “never fight in front of the kids — not even over the phone.” Further, Neumann advises, “Don’t empower them to make decisions, like, ‘Do you want to spend the holiday with me or your dad?’ Children don’t feel taken care of if they’re given the choices. They want to see their parents in charge and making decisions, which makes them feel safe.”

Barbara Rothberg, a New York­–based divorce coach and family therapist, takes a particular tack when it comes to helping parents keep their anger at each other away from the kids. “I try to help them separate out the two roles, and to remind people that they are divorcing as spouses, not as parents,” she tells Yahoo Parenting. “I try to redefine it as a business relationship of parenting.” Because, she explains, unless there is abuse, the goal should be to help both parents be good parents. “Kids do very well if parents do not put them in the middle — if you don’t use them, do not express anger in front of them, don’t ask questions like ‘who was daddy with last weekend?’ That’s not to say you’re not furious, but you keep that separate. If you really care about your kids, you need to do this.”

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I was a child affected by Parental Alienation Syndrome, AMA

Posted on November 11, 2014. Filed under: Parental Alienation Syndrome | Tags: , , , |

by fathersdaythrowaway3 – Men’s Rights

The first time I was punished for not showing enough affection for my mother, or showing too much for my father, happened when I was 6. My 4 year old brother and I had left my mom’s house for Saturday visitation with my dad at the usual time of 9:00. Our parents had divorced a year earlier, so the routine of custody exchange had become familiar to us, and except for a handful of times they overtly shouted at one another, we were too young and oblivious to notice a palpable current of hostility between them. On our way out the door, my mom called after us, telling us to have a nice day, or something. I said over my shoulder, “Yeah, bye!”

We got into his car and traveled the 15 minutes to his “new house,” purchased nearby to facilitate the semblance of a shadow of a presence in our lives that the Family Court grudgingly deigned to allow. We had an unremarkable day of watching cartoons, riding bikes, and engaging in the subdued rituals of weekend play in an environment that never quite lost its alien character to us. Our time there took on a forced, artificial property like a visit to an in-law, or a party at your boss’ house with coworkers you’re kind of familiar with on a passing basis. When we came home that evening, it started immediately. Our mother wouldn’t speak to or acknowledge us. When she looked down at us, it was to convey an expression of contempt and disgust before turning away. Coming from someone who routinely proclaimed that she loved us more than anything in the world, and that she was all we had, this experience was terrifying.

“Mommy, what’s wrong? Why won’t you talk to me?” After what seemed an eternity of unbearable silence punctuated only by body language that broadcast hostility so clearly that even a small child could understand it, she finally responded, “Don’t talk to me, talk to your father,” and left the room. In tears, we pursued her, “We’re sorry, mommy! Please don’t be mad!” We tried to hug her and she pushed us away, then said, “You know, maybe you should just live with your father instead of me. I did my best to be a good mother, but you seem to like that better. Let’s pack your stuff and you can move away with him.” She intoned each word with a mixture of feigned resignation and practiced anger. Our entire world seemed to collapse before our eyes. We wailed, we pleaded, we apologized.

Eventually she explained the impetus for the situation. We hadn’t been affectionate enough with her on our way out the door. Her feelings were hurt because we didn’t respond to whatever it was she said as we left. I, in particular, was too cavalier in responding “Yeah, bye!” without telling her that I loved her. She added to the implicit message in her display of vindictiveness an explicit warning that we were not to do that again.

What came later built on that foundation of manipulative extortion, and shattered my relationship with my own father for the next 15 years. The process started in earnest another evening, probably a few months later, when my brother and I came home from another visitation. She told us in a somber, foreboding tone that she had something important to tell us.

She sat on the sofa while we sat on the floor in front of her. She told my brother and I, children of 6 and 4, that our father was going to take away our home. She said he had tricked the court handling the divorce into giving him too much money, and she couldn’t afford to pay him. But our father was a bad guy, and wanted to hurt her, and us. So he got an order from the court that she would have to either pay him the money, or sell our house. She didn’t know where we would go, or what would happen to us.

In reality, my mother and father had bought and paid the mortgage on the house together. When they divorced and my dad moved out, my mom demanded that the Family Court transfer the house to her free and clear of any obligation to my dad – essentially strip him of his equity in the house. He refused to turn over tens of thousands of dollars to her for no reason, and the court ended up giving him an equitable lien on the house in the amount of his contributions to it. The court decided it would be psychologically damaging to my brother and I to lose the house we lived in, so it held off on ordering a partition and sale of the house until we were both 18. But my mom was all too happy to turn that into a story about my dad villainously trying to make us homeless. She was sure to add that the judge had ordered that my brother and I not be told of this, because we were too young to handle it. But she knew how smart and grownup we were, so we could handle the truth. However, it was very, very, very important that we not let on that she had told us, or she could get in trouble. From then on, it was our secret.

After that day, I hated my dad as intensely any child could hate another human being. I refused to visit with him. When I did go, I refused to interact with him. Then my mom started to encourage my brother and I to misbehave while we were there. We would bring back stories of breaking a storm window on his house with a rock, closing the car door on his leg, and yelling and misbehaving.

These stories were received with as much approval and enthusiasm as the earlier failure to be affectionate with her garnered rage and contempt. She would smile from ear to ear, hug us, tell us how brave we were, and how proud of us she was in “standing up” to him. “Standing up” to a man who barely ever spoke a cross word and never once raised a hand to either of us, even as we devised more and better ways of acting up, antagonizing him, and making the time we spent with him as miserable as possible.

That went on for the next five years. Everything we said about whatever went on during our visits was met with some explanation of why whatever he said or did was wrong, or abusive, or stupid. We were told dozens upon dozens of new stories about him and why our mom had to divorce him to keep him away from us. He was a compulsive gambler. He was violent with her. He was a power-crazed maniac out to control all of our lives. He was a pathological liar. He tried to steal from our maternal grandmother. Don’t believe anything he says. Don’t accept anything he does. He’s trying to keep you away from your real family who love you and miss you very much when you’re gone. Never let him forget you don’t want to be there. To my mom, my brother, and I, he gradually became the living embodiment of all that was evil in our world.

What chance did he ever have when we were submersed in that propaganda campaign 6 days a week? I’ve often thought back and wondered to myself if there was any combination of words or actions that would have reached us then, and honestly the answer is no. No matter what he said, we’d hear for the next week that it was a trick or a lie. No matter what he did, we knew better than to respond favorably, or god forbid – let our mom know we held anything other than unadulterated hatred for the man. She proudly told us, “When he left us, you were babies, but now you’re my soldiers.”

When I was 11, things came to a head. I don’t even remember how or why. I do recall it was nothing extraordinary. Another argument about how we hated it at his place, didn’t want to see him, and if he really cared about us, he’d leave us alone to live at our real house where we liked it. All lines fed to us and rehearsed with mom. How could he expect us to love him if he forced us to be with him? It was an unsolvable dilemma for him that we had talked over countless times before. Previously, he would ask, “Well, what can I do to make your time here better? What is it about spending time with me that you don’t like?” There really was no answer to that question, other than the real truth of what was going on that I’m sure he heard behind the angry denouncements of his children. “It just sucks here! Why do we have to explain anything to you? Can’t you just listen to us and leave us alone?!” And, that last time, he did just that.

He must have known that he was fighting an unwinnable battle for our hearts and minds. Anything he said would be drowned out with more accusations. Anything he did would be lost in a din of insults and demeaning mistreatment, egged on by the only parent we knew for 85% of our lives. All that was left was to do what we asked – to leave us alone. So, one spring day, he finally did.

We returned home like conquering heroes. Our mom squealed with joy and pride like I never heard from her again, even the day I got my college admissions notices. But the torrent of attacks didn’t stop even then. When someone was behaving selfishly, or inconsiderately, they were “acting like him.” When conflicts reached their fever pitch, the old threat still came out, “Maybe I’ll just send you away to live with your father.”

He and I wouldn’t see or speak to one another until I was 22. My paternal grandfather died and I saw him at the funeral. I still believed him to be the monster my mother described, and said little to him then. But in the ensuing years, we saw more of each other, and with the benefit of adult reasoning, I looked back and saw how transparently manipulative it had all been. Given the chance to meaningfully speak in his own defense, my dad explained the issue with the house, and told me about his experiences through the divorce, and the tempest of bitter conflict that followed. We’re doing our best to fill the 20-year hole in our lives left there by the weaponization of children in divorces, and I’m much closer to him now than I am to her.

So. That’s my story. I had meant to post this on Father’s Day, but time got away from me and whatnot. Still, I see threads in this subreddit from divorced fathers expressing grief and frustration over the damage to their relationships with their children caused by vengeful spouses. I hope that the opportunity to look at this from the perspective of a child in these situations might help, and the happy ending to my story might offer hope to you noncustodial dads out there.

So. Ask me (almost) anything. I won’t say anything that might identify me, for reasons that should be pretty clear. But if you want to know what it feels like for a child to be constantly inundated with false accusations, insults, and conditioning to hate and fear the other parent, and what it was like to finally emerge from that cave to see daylight, I’ll add anything that might be useful or hopeful.

http://www.reddit.com/r/MensRights/comments/2d68yk/i_was_a_child_affected_by_parental_alienation/

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After divorce or separation, 40% of non-guardian parents unable to see kids: survey

Posted on November 4, 2014. Filed under: Child Custody and Visitation | Tags: , , , |

(Mainichi) Nov. 3rd, 2014

Despite the existence of family court agreements spelling out visitation rights following divorce or separation, more than 40 percent of parents who don’t live with their children remain unable to have any contact with them, a survey conducted by the Japan Federation of Bar Associations has revealed.

Although it had been known that many parents were not able to visit their children despite the existence of such agreements, the extent of the situation had not been understood prior to this study.

The survey was conducted between February and April this year, with the assistance of lawyers nationwide, on parents who had filed for visitation agreements with family courts. It focused on how satisfied they were with child visitation agreements, whether visits that had been agreed upon were actually occurring, and the payment of child-support fees, among other issues.

Forty-four percent of the 296 respondents indicated that they were “unable to see their children at all.” Twenty-four percent said that they were “able to see their children in accordance with the agreements that had been made,” while 32 percent responded that they were “able to see their children, although not exactly to the letter of the agreement.”

On why court-granted visits were not occurring, the highest response, at 37 percent, was either that “The children did not want it, or the parent living with the children informed me that the children did not want it.” Meanwhile, 31 percent said, “The parent living with the children will not let me see them.”

With respect to how visits took place, 51 percent reported that arrangements were made directly between the couple or ex-couple, while 24 percent said that “relatives were offering assistance” with visitation. Ten percent cited the involvement of third-party organizations. The latter figure revealed that the system of providing institutional support for visitation remains underdeveloped.

One parent who has been deprived of visits remarked via the survey, “Even if I send an e-mail (to the parent living with the children), I don’t get a response for a week or so — and even then, I just get the runaround.”

Meanwhile, parents living with their children pointed out issues such as, “(The parent living apart from the children) is not fulfilling their proper parental responsibilities.”

Survey comments from parents who have been able to visit their children included, “I am receiving assistance from lawyers,” and, “My children are now in the upper grades of elementary school, so I am able to make visitation arrangements with them directly.”

Michiko Fujiwara, a lawyer with the Daini Tokyo Bar Association who assisted with the survey, commented, “The family courts are unable to provide support after agreements have been signed.” She added, “A system is needed wherein local governments and organization-based experts are able to assist or coordinate between parties who are finding it difficult to carry out the stipulated visitation agreements.”

In order to help parents understand the importance of child visitation, the Tokyo Family Court has begun providing them with picture books that illustrate children’s feelings. A special room has also been set up on the court premises to facilitate trial visits, featuring children’s toys and stuffed animals in order to help create a warm atmosphere.

Kazuko Yao, a judge with the Tokyo Family Court who specializes in divorce and visitation agreements, commented, “Even if parents split up, the act of facilitating visitation can help children understand that they are loved. I hope that parents (who are outlining visitation agreements) will put the children first.”

Tokyo Family Court associate examiner Hajime Shiino additionally remarked, “When children are growing healthily, it will also benefit the parents.”

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Custody wars: ‘Shared parenting’ and divorce litigation across the 50 states

Posted on October 20, 2014. Filed under: Child Custody and Visitation | Tags: , , |

MBRIDGE, Mass. — We’ve interviewed nearly 100 divorce litigators in different U.S. and international jurisdictions for a forthcoming book. We didn’t do this to educate ourselves about Measure 6, the Shared Parenting Initiative on the North Dakota ballot; but inadvertently, we’ve become experts on the practical effects of changes in divorce laws.

Broadly, states fall into three categories:

  1. 1.     Preserve the status quo
  2. 2.     Craft a new optimum
  3. 3.     Don’t take sides

 

  • North Dakota currently falls into the first category. The judge tries to figure out who was the “primary parent” during the marriage, then extends the financial terms of what had been a voluntary partnership out until the children are adults.

The parent identified as more important pre-lawsuit is awarded custody, and the parent who had been the breadwinner will be ordered to pay child support.

This approach is consistent with the best published psychology research of the 1950s. However, the academic psychologists have changed their minds. “A psychologist can’t walk into an intact family, do an assessment and determine which parent is better for which child at which age in that family,” said Linda Nielsen, professor of psychology at Wake Forest University.

“And it is the wrong question to ask, since the importance or effectiveness of each parent will go up and down as the child ages.”

In theory, the decision regarding which parent is to be primary is made after a Perry Mason-style trial with witnesses testifying and being cross-examined. In practice, as its typical nationwide, North Dakota judges make an “interim” decision at a 60-minute hearing shortly after a divorce lawsuit is filed — and that decision is likely to become permanent.

  •  The second category includes states that recognize parenting is going to be different following a divorce, so the court should “craft a new optimum.” The court may order the parents to assume unequal roles, but not because roles were unequal during the marriage.

This approach, followed by states such as Michigan and Missouri, sounds great in theory. But in practice, it leads to lots of arguments (at $1,000 per hour or more, considering everyone in the courtroom who is being paid) about what the new optimum should be; and no two judges are likely to agree on what is “optimum.”

“I could take the same facts and argument to five judges and get five different results,” was a common refrain.

  •  Alaska, Arizona, Colorado and Delaware are examples of the third approach: “Don’t take sides.” Either the Legislature or the court will require or strongly suggest that, absent an agreement between the parents, courts award 50/50 parenting.

Effects of Measure 6

Measure 6 would push North Dakota into the third category. Generally, lawyers nationwide say they think that roughly 50/50 shared parenting is best for children. They report that their clients with 50/50 parenting experience less conflict than clients with an every-other-weekend-and-Wednesday-night-dinner schedule.

Among other advantages, “you don’t have a father who is perpetually angry that he pays all of the bills and seldom sees the kids,” as several attorneys observed.

Attorneys and psychologists also report much greater involvement by fathers who had been awarded 50/50 parenting than ones who had been officially deemed “secondary.” “The best kind of parenting is called ‘authoritative parenting,’ as distinct from ‘permissive parenting,’ which is the worst,” Professor Nielsen noted.

“An authoritative parent sets rules and talks to children about important things. He is a child’s parent, not the child’s uncle. For this to be possible, the children must spend ample time with the father and have a full range of activities with him.

“When you cut the parenting time down to every other weekend, there’s not an opportunity to be an authoritative parent. It is not that the dad is a different person. He’s the same person with the same parenting skills, but in a restricted situation.”

Despite saying that 50/50 parenting is better for most children, most lawyers oppose a statutory 50/50 rule and prefer each child’s schedule to be a custom decision. One reason is that these attorneys don’t factor in the cost of legal fees. Maybe a 60/40 schedule is better for Johnny than a 50/50 schedule, but is he better off now that $200,000 has been drained from his college fund to pay for that fight?

One warning, North Dakota: About a third of Measure 6 is given over to an escape clause in the event of domestic violence. Alaska added such a clause to what had been a strict 50/50 system. What happened? “Either there has been an epidemic of abuse since this statute was amended, or a lot of women are lying,” said Pam Sullivan, a divorce litigator there.

“In about 25 percent of the cases now, the man is alleged to be a physical or sexual abuser.”

Lawyers all over the United States report that domestic violence allegations now are standard in custody fights, with up to 75 percent of divorce cases in some states now involving allegations of abuse.

Conclusions

To sum up what we learned from talking to attorneys: Uncertainty drives litigation. Parents like children. Parents like to make money off children.

The typical U.S. state generates a maximum amount of custody litigation by making it uncertain who will win a custody lawsuit and by awarding substantial cash profits, in addition to the enjoyment of time with the child, to the winner.

In Switzerland and Denmark, custody litigation is greatly reduced by a presumption that “Mom wins.” Legal fees in those countries tend to be less than 10 percent of what Americans pay for a divorce. But note that 50/50 shared parenting is common in Denmark, despite the “Mom wins” rule. Why? Child support awards in Denmark are limited to a range of $2,000 to $8,000 per year (compared to a maximum of $25,224 in North Dakota).

Jackie Stebbins, an attorney at Bliss & Stebbins in Bismarck, said “It’s hard for many of us [divorce litigators and judges] to admit that a lot of these custody battles are really about money, but they are.”

After a year of interviewing experts, what’s our expert advice for North Dakota voters? Don’t listen to experts! They aren’t the ones who have to live with the consequences of the law. Talk to adults whose childhood was the subject of custody litigation.

Among us five co-authors, it turns out that one is the child of divorced parents. Here’s her personal perspective: “I am a proponent of the 50/50 custody presumption. The current system forces the parent who does not receive custody too far to the sidelines. Also, Measure 6 should reduce the number of custody battles, which are always destructive.”

We’ve prepared a free excerpt from our forthcoming book for Herald readers. It includes our full North Dakota chapter. Visit tinyurl.com/gfhballot6.

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Erasing Dad, A Review

Posted on October 7, 2014. Filed under: fathers, Parental Alienation Syndrome | Tags: , , |

Sept. 29th, 2014 by Wendy Gosselin

Visitation. It’s just a terrible word,” says Gabriel Balanovsky, the producer of the documentary film ‘Borrando a Papá’ [Erasing Dad]. “There are only three moments in life for visitation – when someone is in jail, when someone is in the hospital, or when you’re a divorced father going to see your kid. How can a father’s relationship with a son or daughter suddenly be limited to visitation?”

To find their protagonists, the filmmakers interviewed a hundred men

Although it hasn’t yet premiered, Borrando a Papá has already caused quite a stir. The trailer has been viewed 76,000 times on YouTube and the film’s Facebook page has over 19,000 followers – an auspicious start for an Argentine documentary before even reaching the screen. The film’s directors, US ex-pat Ginger Gentile and Argentine Sandra Fernández Ferreira, have appeared on radio and television and in print media discussing the film.

However, not everyone is looking forward to its release: the NGO Salud Activa started a petition on Change.org requesting that Argentina’s film institute INCAA cancel the documentary’s release. According to the petition, the film promotes violence and sexual abuse against minors. After its original release date was pushed back and a pre-screening set for 2nd September at the Colegio de Abogados was cancelled due to pressure from the film’s censors, Borrando a Papá is finally set to premier this Thursday (2nd October).

“When we released our last documentary, ‘Mujeres con Pelotas‘ [Goals for Girls], everybody loved us!” explains Balanovsky. Mujeres con Pelotas follows a group of young women, many from the shantytowns, who play football, a man’s sport par excellence in Argentina. “We were applauded for talking about women’s equality. But men’s equality? They don’t want to hear about men’s equality.”

Borrando a Papá offers a close-up of contested divorce and family violence from a unique perspective: that of the father. According to the film, these fathers are victims of a system that has been so tweaked to protect mothers that it leaves men at the mercy of their ex-wives, who then exploit the family court to keep their ex from seeing his children, often, it would seem, out of spite or vengeance.

Directors Ginger Gentile (left) and Sandra

Gentile and Fernández interviewed over one hundred men for the documentary, finally settling on six main “characters” for the film. Each of these men has a devastating story of being excluded from his child or children’s lives. Sergio, for example, is isolated from his four kids because of accusations made by their mother. When one of his sons ended up in the hospital with a fractured skull and told the doctors that his mother had hit him, Sergio filed an injunction to take his son into temporary custody. The court refused the injunction, and his son was returned to the care of his abusive mother. Another father, Diego, knows where his daughters live but can’t see them; he drives by their house once a day and whistles up to them from the open sunroof before driving off. Guillermo, a father who suffered physical abuse at the hands of his ex, receives a piece of advice from a social worker: don’t report the violence or you will automatically be suspected of having initiated it.

“It was a very difficult documentary project emotionally,” explains Gentile. “A lot of the men were ashamed to talk about what had happened to them.” It was especially hard for men who had suffered physical abuse by their spouses. “They would use the third-person plural in Spanish – me pegaron – to avoid coming out and saying that their wife had struck them.”

The film moves back and forth between the six men, weaving a story of impotence before a system that appears rigged against any attempt by a father to see his children. Yura is a Russian father who doesn’t even know where his Argentine ex has taken his son; before disappearing with him, she had filed a long list of police reports accusing him of alcoholism, violence, and acts as abominable as “only speaking [to his son] in Russian.” In a meeting with an employee at the Domestic Violence Office where Yura goes to file his own report, he is advised not to bother waiting several hours to be seen by a case worker. “Whatever you tell them, the final report is going to say that your report isn‘t credible and that she is the one at risk,” explains the female worker in a shushed voice. “They’re going to believe her, because she’s the woman.” “Is that legal?” asks Yura. “It’s not legal – it’s the way things are done. We have a team of gender violence specialists and they know when a man’s lying. And he’s always lying.

Yuri, one of the film's protagonists

The men’s stories are sensitive and thought-provoking, and giving fathers a voice is unquestionably the force of this documentary. Their stories alone would have been more than enough for a feature-length film, yet the filmmakers wanted to show the discrimination against fathers in Argentine family courts from myriad perspectives. The life stories are thus interspersed with statements by a range of people from inside the system, including lawyers, public officials, psychologists, and NGO workers, many of whom appear uncannily comfortable with thismachista notion that men are naturally prone to violence and abuse while women are naturally inclined to caregiving and childrearing.

Some of these people are the ones who are now speaking out against the film. “We didn’t think there would be such an adverse reaction, with people demanding censorship,” explained Gentile. “We were very careful not to attack individuals or organisations. We thought, we’re making a small documentary here so let’s give everyone an elegant exit.”

On the other hand, people who have heard about the movie are also reaching out to them. “We receive about 50 emails every day from people who have seen the trailer and visited our website – people asking us for help because they can’t see their child,” says Gentile. Men aren’t the only ones drawn to the film. “Half of our Facebook followers are women.”

In spite of the film’s fortes, however, there are two sections that throw it slightly off course. The first presents Jorge Corsi, a psychologist who designed the academic specialisation of “family violence” in 1989; its curriculum is still in use at Universidad de Buenos Aires’ school of psychology. Although the programme curriculum is related to the film’s topic (the study programme contemplates exclusively male perpetrators of violence against female victims), the fact that Jorge Corsi was subsequently accused and convicted of sexual abusing a minor seems to stray from the core issue of the film, which is a father’s right to be with his children.

The second segment from the film that could have perhaps been saved for a follow-up documentary on the subject is an interview from British television with Erin Pizzey, a family care activist. Pizzey talks about how the court system in the UK is designed to perpetuate divorce and child custody because of all the money there is to be made in these cases by lawyers, court-appointed psychologists, visitation companions, etc. The film then suggests that the system could also be profit-driven in Argentina. But given the fact that the entire Argentine court system is notorious for its drawn-out blundering, it seems like a stretch to posit that there is a moneymaking scheme behind all the ineptitude; and if this were the case, it would seem logical to assume that there is as much money to be made from mothers as there is from fathers. In any case, the segment again distracts us from the highly compelling life stories of the film.

The film highlights the slow bureaucratic process that custody battles entail

On Balanovsky and Gentile’s behalf, it is fair to say that they are both so passionate about this topic that it was probably difficult to decide what to leave out. These are stories close to both of their hearts: after fighting to have his visitation rights enforced, Balanovsky was accused of kidnapping his daughter by a criminal court judge even though a family court judge had given him provisional custody. He was later apprehended and spent a year in jail before being released (a judge ultimately ruled that since his parenting rights were still in force, he could not be accused of “kidnapping”). Despite being given visitation rights, he has not seen his daughter in the ensuing 12 years. The incident is frequently brought up by the people who want the film to be censored. As for Gentile, she was moved by Balanovsky’s struggle, as she herself had been isolated from her father as a teenager after her parents’ divorce.

“We are planning to turn this into a trilogy,” explains Gentile, “With a second film focused on the business side of divorce, and a third film that ends on a more positive note, examining possible solutions to this problem – going to places like Belgium, where shared custody is the norm.”

If all goes as planned, the film should be in cinemas starting this Thursday. As with most Argentine documentaries, it is not likely to last long in theatres, and it is well worth seeing. Luckily, after its release on 2nd October, Balanovsky and Gentile are planning on uploading it onto their YouTube page with English subtitles. Their ultimate goal is to spread the word on the plight of these fathers in an effort to finally balance the scales between mothers’ and fathers’ rights.

To see where the film will be playing, please visit the Facebook page. The filmmakers are actively seeking to fund their next documentary, and are accepting donations via their Paypal account.

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Guest Post: Spousal Support: Heads She Wins, Tails He Loses

Posted on October 7, 2014. Filed under: Divorce | Tags: , , , , |

Posted on September 22, 2014

I have been a fan of Ontario lawyer/writer KAREN SELICK (karenselick.com) for many years and appreciate her “tell-it-like-it-is” approach to some of Canada’s absurd laws. Karen wrote the piece below on spousal support seventeen years ago in the November, 1997 issue of “Canadian Lawyer”, when the Spousal Support Advisory Guidelines were nothing more than a law professor’s dream. Enjoy!

“The law of spousal support has become so repugnant to me lately that I often ponder giving up the practice of family law altogether.  It’s almost impossible to feel good about what you’re doing.  If you act for wives, you have to inform them about the kinds of claims they can make—including claims which I consider to be unjust or downright ridiculous.  If you act for husbands, you have to be prepared to be on the losing side most of the time.

It seems that no matter what course a couple’s married life took, the wife can always find some reason to claim spousal support.   If she  worked outside the home and supported her husband while he became a brain surgeon, her claim is for “compensatory support.”  If she did just the opposite, sitting around eating bonbons while the brain surgeon supported her, her claim is for  “developing a pattern of economic dependency.”

I’ve even seen cases where the wife has claimed both grounds in the same action, oblivious to the possibility that the bonbon-eating lifestyle she enjoyed in the later years of marriage has already more than compensated her for whatever work she did in the early years, or to the idea that if she was such a great provider in the early years, there was nothing stopping her from maintaining her lucrative career throughout the marriage.

In fact, the only common thread running through most support orders is this: males pay.

I remember reading once about the peculiar notion held by some eastern philosophy that if you rescue a person from impending death, you become responsible for him for the rest of his life.  Canadian courts seem to apply a similar prescript to support cases.  Once a man has kindly provided a woman with a higher standard of living than she could reasonably have hoped to achieve on her own, he’s stuck with providing it for years to come—maybe even the rest of her life–regardless of how she has behaved toward him or the reason they separated.

The Divorce Act enshrines this principle.  It tells judges to alleviate any economic disadvantage arising from either “the marriage or its breakdown.”   That “or” is a powerful word.  Suppose the marriage gave the wife an advantage rather than a disadvantage: a more affluent, leisured lifestyle than she would have earned on her own. Then, obviously, the termination of the marriage constitutes a disadvantage.

If a man genuinely caused his wife some disadvantage during the marriage, he pays for that reason.  But if instead he bestowed an advantage upon her, he pays for having stopped.  Heads she wins, tails he loses.

Another objectionable thread woven through both the legislation and the case law is the notion that if a woman can’t support herself after separation, the courts should make her ex-husband support her rather than see her go on welfare.  Maybe the legislators and judges who came up with this idea thought it would placate opponents of welfare. If so, they’ve misunderstood the nature of the objection to welfare.

Welfare is objectionable because it is coercive and one-sided.  It’s not like charity, which is voluntary.  It’s not like a contract, from which both parties benefit.  No, welfare simply forces some people to hand over money to others whose predicament they didn’t cause and who have provided no value in exchange.

The same could frequently be said about spousal support.  Take, for instance, the recent Ontario case, B. v. B.   The trial judge accepted the husband’s evidence that this was a marriage “made in Hell.”  The wife, whose IQ was only 68, didn’t work outside the home, but also didn’t do housework.  She watched a lot of television, while the husband assumed responsibility for cooking and cleaning, in addition to being the sole breadwinner.  They argued a lot, and she was occasionally violent towards him.

The trial judge awarded her only time-limited support, saying “…this husband started to pay for this marriage about three months after it occurred, and then he paid for the next 15 years, and I am not prepared to make him pay for the rest of his life.”

On appeal, the Divisional Court removed the time limit on the wife’s support, stating explicitly that the burden of the wife’s support should fall on family members, not on taxpayers.  Why?  What principle of justice or morality warrants making Mr. B. pay, as opposed to some unrelated taxpayer? Neither of them caused the wife’s need for support. Neither of them ever received any benefit from her existence.

In fact, we’ve thrown out just about every principle there ever was—from the notion of contract to the notion of fault—that made matrimonial law rational, comprehensible, predictable, controllable or just.  While some people may feel that no-fault support has been a liberating event, it’s clear that for others, it has meant nothing but grief and involuntary servitude.

It’s about time we re-examined the unfashionable idea of marital conduct to see whether justice can ever again form part of matrimonial law.”

Lawdiva aka Georgialee Lang

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How Splitting Up Made Us Better Parents

Posted on September 5, 2014. Filed under: Divorce | Tags: , , |

8/19/2014 by Jessica Woodbury (Huffington Post)

My husband and I both come from families with parents who’ve been married for decades. Deciding to separate and then to divorce meant taking our children into a world we’d never experienced ourselves. More than anything else, we’ve both worried about them and how this will affect their lives.

The funny thing is that it hasn’t turned into the giant fiasco you might expect. It helps that our kids are still young and don’t think to ask us why. But what’s helped the most is that taking this step has made us into more involved and more centered parents, even if we’re no longer parenting together.

1. More Me Time. Before, I had a husband who worked long hours and no support system. I was more than a primary parent, I was a 99 percent parent. Splitting up and setting up a custody schedule has us both carving out just-for-kids time and just-for-me time. Now that I have Friday nights to myself I have the break I always craved as a stay-at-home parent.

I get three nights a week of undisturbed sleep. There are no errands to run. I can meet a friend for brunch without having to line up a sitter or order a kids meal for a small companion. Last week I even got a pedicure in the middle of the day just because I could. I pick the movies and the TV shows I watch. I can lay in bed and read all day.

It’s actually an adjustment to learn to live with a couple of days of open time. You can start up old hobbies. You can connect with friends.

But best of all, when you see your kids again a couple of days later, they are more beautiful and more precious than they were at the end of a long week. My energy is renewed, my patience is restored, and we’re all ready to enjoy each other.

2. Less Stress. I do all my parenting alone now, which is harder in a lot of ways. I won’t say it’s easy. Sometimes I don’t get to eat my own dinner until 10:00 p.m. But getting through those difficult hours after school and before bed are not so tough when you’re not already on edge.

I hadn’t realized just how much my misery in my marriage was weighing on me. There was always the question of when my husband would get home, what mood he’d be in, how we’d manage dinner, how we’d wade through the evening’s battles with the kids. If my husband was home, instead of managing something myself I would feel resentful if he wasn’t there to immediately step in and assist. I was causing a lot of my own pain and frustration.

Taking that out of the equation means a lot. After the kids go to bed I don’t have to deal with any anger or resentment at my spouse. I don’t have to face stony silences. We don’t avoid each other. There are no fights. It’s just a quiet evening for me to relax or clean up or take a bath. And it’s weird how much easier it is to get through a rough evening solo.

3. More Working Together. Now that there isn’t all this extra baggage of our own arguments and grudges, parenting together is a lot easier. We can talk about it clinically instead of getting upset in the heat of the moment. We can email back and forth. There aren’t any spontaneous blow ups. There isn’t any finger pointing or blaming.

If I notice the pack of diapers he bought isn’t the right size, I can just include a note about it in a weekly email about what’s going on, what the state of the laundry is, how they’ve been sleeping, etc. It’s a lot less loaded than the conversation would be if we had it together at the end of an exhausting day.

We’ve started to talk about disciplining strategies for our 5-year-old. We’re setting out a short list of rules we can consistently follow with consequences we’ve agreed upon. Dealing with these big issues has never been so easy.

Parenting alone may not be ideal but it doesn’t have to be the end of the world. Right now, I’m still working on finding my single parent mojo, but it’s not nearly as scary as I thought it would be.

This post originally appeared on Scary Mommy. See more of Jessica’s essays on Parenting & Divorce with Young Children.

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Co-Parenting After Divorce

Posted on January 4, 2014. Filed under: Divorce, Parental Alienation Syndrome | Tags: , , , |

The Impact of Parental Alienation on Children

by Edward Kruk, Ph.D.

I offer the first installment of a three-part series examining (1) the impact of parental alienation on children, (2) the effects of parental alienation on parents, and (3) programs, services and interventions that combat alienation and seek to reunite estranged parents and their children.

What children of divorce most want and need is to maintain healthy and strong relationships with both of their parents, and to be shielded from their parents’ conflicts. Some parents, however, in an effort to bolster their parental identity, create an expectation that children choose sides. In more extreme situations, they foster the child’s rejection of the other parent. In the most extreme cases, children are manipulated by one parent to hate the other, despite children’s innate desire to love and be loved by both their parents.

Parental alienation involves the “programming” of a child by one parent to denigrate the other “targeted” parent, in an effort to undermine and interfere with the child’s relationship with that parent, and is often a sign of a parent’s inability to separate from the couple conflict and focus on the needs of the child. Such denigration results in the child’s emotional rejection of the targeted parent, and the loss of a capable and loving parent from the life of the child. Psychiatrist Richard Gardner developed the concept of “parental alienation syndrome” 20 years ago, defining it as, “a disorder that arises primarily in the context of child custody disputes. Its primary manifestation is the child’s campaign of denigration against a parent, a campaign that has no justification. It results from the combination of a programming (brainwashing) parent’s indoctrinations and the child’s own contributions to the vilification of the target parent.” Children’s views of the targeted parent are almost exclusively negative, to the point that the parent is demonized and seen as evil.

As Amy Baker writes, parental alienation involves a set of strategies, including bad-mouthing the other parent, limiting contact with that parent, erasing the other parent from the life and mind of the child (forbidding discussion and pictures of the other parent), forcing the child to reject the other parent, creating the impression that the other parent is dangerous, forcing the child to choose between the parents by means of threats of withdrawal of affection, and belittling and limiting contact with the extended family of the targeted parent. In my own research on non-custodial parents who have become disengaged from their children’s lives (Kruk, 2011), I found that most lost contact involuntarily, many as a result of parental alienation. Constructive alternatives to adversarial methods of reconnecting with their children were rarely available to these alienated parents.

Parental alienation is more common than is often assumed: Fidler and Bala (2010) report both an increasing incidence and increased judicial findings of parental alienation; they report estimates of parental alienation in 11-15% of divorces involving children; Bernet et al (2010) estimate that about 1% of children and adolescents in North America experience parental alienation.

There is now scholarly consensus that severe alienation is abusive to children (Fidler and Bala, 2010), and it is a largely overlooked form ofchild abuse (Bernet et al, 2010), as child welfare and divorce practitioners are often unaware of or minimize its extent. As reported by adult children of divorce, the tactics of alienating parents are tantamount to extreme psychological maltreatment of children, including spurning, terrorizing, isolating, corrupting or exploiting, and denying emotional responsiveness (Baker, 2010). For the child, parental alienation is a serious mental condition, based on a false belief that the alienated parent is a dangerous and unworthy parent. The severe effects of parental alienation on children are well-documented; low self esteem and self-hatred, lack of trust, depression, and substance abuse and other forms of addiction are widespread, as children lose the capacity to give and accept love from a parent. Self-hatred is particularly disturbing among affected children, as children internalize the hatred targeted toward the alienated parent, are led to believe that the alienated parent did not love or want them, and experience severe guilt related to betraying the alienated parent. Their depression is rooted is feelings of being unloved by one of their parents, and from separation from that parent, while being denied the opportunity to mourn the loss of the parent, or to even talk about the parent. Alienated children typically have conflicted or distant relationships with the alienating parent also, and are at high risk of becoming alienated from their own children; Baker reports that fully half of the respondents in her study of adult children who had experienced alienation as children were alienated from their own children.

Every child has a fundamental right and need for an unthreatened and loving relationship with both parents, and to be denied that right by one parent, without sufficient justification such as abuse or neglect, is in itself a form of child abuse. Since it is the child who is being violated by a parent’s alienating behaviors, it is the child who is being alienated from the other parent. Children who have undergone forced separation from one of their parents in the absence of abuse, including cases of parental alienation, are highly subject to post-traumatic stress, and reunification efforts in these cases should proceed carefully and with sensitivity (research has shown that many alienated children can transform quickly from refusing or staunchly resisting the rejected parent to being able to show and receive love from that parent, followed by an equally swift shift back to the alienated position when back in the orbit of the alienating parent; alienated children seem to have a secret wish for someone to call their bluff, compelling them to reconnect with the parent they claim to hate). While children’s stated wishes regarding parental contact in contested custody should be considered, they should not be determinative, especially in suspected cases of alienation.

Hatred is not an emotion that comes naturally to a child; it has to be taught. A parent who would teach a child to hate or fear the other parent represents a grave and persistent danger to the mental and emotional health of that child. Alienated children are no less damaged than other child victims of extreme conflict, such as child soldiers and other abducted children, who identify with their tormentors to avoid pain and maintain a relationship with them, however abusive that relationship may be.

In the second installment on parental alienation, I will examine the effects of parental alienation on targeted parents, and suggest a range of strategies for preventing and intervening in these cases in the third.

 

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Divorce Corp- The Divorce Industry Exposed

Posted on January 4, 2014. Filed under: Child Custody and Visitation, Divorce | Tags: , , , , |

A shocking exposé of the inner workings of the $50 billion a year U.S. family law industry, Divorce Corp shines a bright light on the appalling waste, and shameless collusive practices seen daily in family courts. It is a stunning documentary film that anyone considering marriage or divorce must see.

DON’T BE LEFT IN THE DARK ABOUT DIVORCE.

Nearly every household in America is affected by Divorce and sadly too many families fall victim to divorce court. Whatever the causes or reasons for divorce it’s vital to have all the information. Here we provide a user friendly resource for navigating the complex US family law system.

Find Divorce statistics, divorce how to’s, divorce self-help and essential information on child custody, child support, alimony/spousal support, custody evaluators, divorce lawyers, divorce reform and much, much more. Search for a divorce topic or browse the blog entries below.

*If there is a topic you would like to see covered that is missing please contact us here.

Our goal is to reform the outdated family law system and give you clear and unbiased resources so you can make the healthiest decisions possible. We are not divorce lawyers or family law professionals. We are concerned citizens who want to see divorcing families find peaceful solutions to one of life’s biggest challenges.

http://divorcecorp.com/media/

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Healing divorced families one story at a time

Posted on August 14, 2013. Filed under: Divorce, Parental Alienation Syndrome | Tags: , , , , |

Jontie Hays and Sarah Ulmer have written 12 books (Monkey in the Middle) to help children understand the emotions and feelings that parents experience during divorce.  Jontie talks with Jill Egizii of Family Matters about her book and her work as a social worker.  Click the link below to listen to the show:

monkey-in-the-middle-talks-with-family-matters

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Things the court should consider when one parent wants to move away from home

Posted on November 20, 2012. Filed under: Child Custody and Visitation, Divorce | Tags: , , , , |

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.

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Japanese parents unarmed in battle for kids taken abroad amid radiation fears

Posted on February 8, 2012. Filed under: Child Abduction, Child Custody and Visitation, Hague Convention | Tags: , , , , |

 

By MANABU SASAKI / Staff Writer Asahi Shimbun

A woman who has not seen her two children since March, when the Great East Japan Earthquake struck, is starting to give up hope of ever seeing her sons again.

The woman’s apartment still contains the brand-new jacket and school bag that her older son would have used if he had entered elementary school in April. The mother, a civil servant, also finds herself searching for her two sons in her apartment when she returns home from work, despite knowing deep inside that her home is empty.

But it wasn’t the quake or tsunami that separated her from the boys, aged 5 and 7.

“It is like a kidnapping,” said the woman, who lives in the Tokai region.

The boys are now in the United States with the woman’s American husband, who has refused to return to Japan, citing radiation fears. He has also filed for divorce.

There is very little she can do to win custody of the children because the Japanese government has not passed the necessary legislation to join the Hague Convention on the Civil Aspects of International Child Abduction. Under the convention, if a parent illegally flees with a child under 16 to another nation, the child has to be returned to the former nation of residence.

Tokyo signaled its intention to ratify the treaty after a number of high-profile cases involving Japanese mothers taking their children to Japan without the consent of their foreign ex-spouses or in defiance of court orders.

But since the Fukushima nuclear accident started in March, Foreign Ministry officials have received a number of inquiries from Japanese parents whose spouses have left Japan for their home nations with their children in tow, using the accident at the Fukushima No. 1 nuclear power plant as an excuse not to return.

About the only thing ministry officials can do is pass on lists of lawyers in the foreign nations where the spouse has gone to.

“We feel sorry for the parents because this is a form of negative publicity from the nuclear accident,” a ministry official said. “We hope the couples will hold calm discussions based on objective information about radiation.”

The Tokai woman’s husband in March took the boys to the United States for what was supposed to have been a one-month visit. But the Great East Japan Earthquake soon struck, and the husband refused to return to Japan, expressing concerns that the sons could be exposed to radiation from the Fukushima nuclear accident.

Daily reports in the United States showed the damage from the quake and tsunami. Nuclear experts often appeared on TV citing the dangers of the radiation spewing from the Fukushima plant.

The woman used a TV phone over the Internet to talk with her husband and children, trying to convince them that the Tokai region was safe.

But the children, perhaps influenced by their father, also expressed concerns about the danger of waves flowing inland as well as poison in the air.

The husband initially said he would return to Japan once the situation at the nuclear plant stabilized. However, by summer, he had withdrawn about $17,000 from his wife’s bank account and had rented an apartment in the United States.

In November, he filed a lawsuit in the United States seeking a divorce. He did not abide by his initial promise even after the Japanese government declared the situation at the Fukushima plant to be under control.

The woman met her future husband in 2001, when she was studying in New York. They were married the following year.

The husband was still a student, and living in New York was not economically feasible. So the couple decided to move to Japan with the wife working to support the family.

But now, she lacks any assurance of finding a stable job in the United States. She feels the possibility is low that she would be granted custody of the children under such conditions.

She has consulted with a U.S. office handling inquiries about abducted children. If Japan had joined the Hague Convention, the United States would have been obligated to return her children to Japan as a member of the convention, the office told her.

But Japan has not yet joined, leaving her and her children uncovered for protection under the convention.

She also consulted a lawyer in the United States because she felt the only way to get her children back was through a lawsuit of her own. But she was told that U.S. courts looked at how the children were being raised over the most recent six months. That would put her at a disadvantage because she had been separated from her children since the natural disasters.

Having allowed her children to remain in the United States because of radiation fears ended up working against her.

A court case in the United States can be time-consuming and costly, and she has no guarantee of winning.

Through letters and phone calls, she repeatedly tells her two children that they mean everything to her, but she has no idea when she may see them again.

“I hope the government joins the convention as soon as possible to prevent parents from successfully fleeing with their children,” she said.

Officials said there have been cases of lawyers recommending that parents flee Japan with their children because there is a good chance they can get away with it.

“Custody battles with a foreign nation should be resolved through international rules after joining the Hague Convention,” said Mikiko Otani, a lawyer who specializes in divorces among international couples. “It is extremely difficult for an individual to find a lawyer in a foreign nation specializing in such matters and proceeding with legal action.”

She also said many parents in Japan face difficulties because there are few lawyers knowledgeable about international divorce cases.

“There are risks involved in international marriage because of differences in laws and cultures,” Otani said. “There are also major differences in thinking on divorce and custody, so there is a need to be aware of the need for a basic understanding of the related laws.”

By MANABU SASAKI / Staff Writer
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Divorce and Child Custody Issues in the Japanese Legal System

Posted on February 7, 2012. Filed under: Child Abduction, Child Custody and Visitation, Divorce, Domestic Violence (DV), Hague Convention | Tags: , , , , , |

American View- US Embassy

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.

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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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American cycles across Japan to raise awareness on child rights

Posted on October 19, 2011. Filed under: Child Custody and Visitation, Divorce, Hague Convention, United Nation Convention on the Rights of a Child | Tags: , , , , , , , |

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.

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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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FROM SQUARE ONE / Protecting kids when intl marriages break down

Posted on August 28, 2011. Filed under: Child Custody and Visitation, Divorce, Hague Convention, Japanese Family Law | Tags: , , , , |

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.

(Aug. 25, 2011)
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Detailed schedule of my bike ride

Posted on August 23, 2011. Filed under: Child Custody and Visitation, Japanese Family Law, Uplifting Stories | Tags: , , , , , , , |

Below is my detailed schedule of my bike ride from Kumamoto to Tokyo. I will be starting on the 13th of September in Kumamoto.  I will hopefully end my ride on the 18th of October.  I attended an Oyakonet Kansai meeting on Sunday and some people have already volunteered (through mixi) to let me stay at their residence. I have a place to stay in Fukuoka, Kobe, Osaka, Kyoto, Shiga (Hikone), Nagoya, Okazaki, Yokohama, and Tokyo.  Some will even accompany me to the prefectural offices. A big thanks to all those who intend to help me along the way.  Everyone will be able to follow me on my trip in a few different ways. I will make posts to this blog, children first facebook page, and joint custody facebook page. In large part, my trip is to raise awareness about the need to change Japanese Family Law. More specifically, children need both parents in their life to be happy. Currently, every 3 seconds a child loses contact with one parent after divorce. Every year 100’s of thousands of children lose half of their family. Japan is way behind the rest of the civilized world in terms of international norms. My hope is to garner media attention and support from governor’s of Japan. I would like Japan to finally take the steps needed to make it a better place for children.

date day holiday prefecture city pref. office court int.school flyer event
?
km time
12-Sep Mon 熊本 Kumamoto 熊本 Kumamoto
13-Sep Tue Kumamoto Kumamoto
佐賀 Saga 佐賀 Saga 82.7 6:43
14-Sep Wed Saga Saga ×
福岡 Fukuoka 福岡 Fukuoka 69.4 5:50
15-Sep Thu Fukuoka Fukuoka
16-Sep Fri Fukuoka Fukuoka
17-Sep Sat Fukuoka Fukuoka
18-Sep Sun Fukuoka 北九州 Kitakyushu 71.6 6:06
19-Sep Mon 山口 Yamaguchi 山口 Yamaguchi 90.4 7:54
20-Sep Tue Yamaguchi Yamaguchi ×
広島 Hiroshima 広島 Hiroshima 152.0 13:04
21-Sep Wed Hiroshima Hiroshima
22-Sep Thu Hiroshima Hiroshima
23-Sep Fri Hiroshima Hiroshima
24-Sep Sat Hiroshima Hiroshima
Hiroshima 福山 Fukuyama 108.3 9:08
25-Sep Sun Hiroshima Fukuyama
岡山 Okayama 岡山 Okayama 61.9 5:08
26-Sep Mon Okayama Okayama ×
27-Sep Tue Okayama Okayama
兵庫 Hyogo 姫路 Himeji × 82.3 6:54
Hyogo 神戸 Kobe 59.9 4:56
28-Sep Wed Hyogo Kobe
29-Sep Thu Hyogo Kobe
大阪 Osaka 大阪 Osaka 36.4 2:51
30-Sep Fri Osaka Osaka
1-Oct Sat Osaka Osaka
2-Oct Sun 京都 Kyoto 京都 Kyoto 49.2 4:02
3-Oct Mon Kyoto Kyoto
4-Oct Tue Kyoto Kyoto
滋賀 Shiga 大津 Otsu × 14.4 1:16
5-Oct Wed 岐阜 Gifu 岐阜 Gifu × 113.2 9:09
愛知 Aichi 名古屋 Nagoya 39.1 3:05
6-Oct Thu Aichi Nagoya
Aichi 岡崎 Okazaki × 40.7 3:20
7-Oct Fri Aichi Okazaki
8-Oct Sat Aichi Okazaki
Aichi 豊橋 Toyohashi 29.9 2:28
9-Oct Sun 静岡 Shizuoka 浜松 Hamamatsu 41.3 3:29
10-Oct Mon Shizuoka 静岡 Shizuoka 100.6 8:22
11-Oct Tue Shizuoka Shizuoka
Shizuoka 富士 Fuji 39.3 3:14
12-Oct Wed Shizuoka Fuji city branch ×
神奈川 Kanagawa 小田原 Odawara city branch × 66.4 5:48
Kanagawa 横浜 Yokohama 56.7 4:35
13-Oct Thu Kanagawa Yokohama
14-Oct Fri Kanagawa Yokohama
15-Oct Sat 東京 Tokyo 東京 Tokyo 34.5 2:51
16-Oct Sun Tokyo Tokyo
17-Oct Mon Tokyo Tokyo
18-Oct Tue Tokyo Tokyo
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Life in the Philippines no picnic for Japanese

Posted on July 16, 2011. Filed under: Divorce, Human Rights, Suicide | Tags: , , , , , |

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.

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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.

===

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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Child abduction convention

Posted on June 6, 2011. Filed under: Child Abduction, Hague Convention | Tags: , , , , , |

Monday, June 6, 2011 Japan Times

The Kan Cabinet on May 20 endorsed a policy of Japan joining the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which sets procedures for settling cross-border child custody disputes.

The administration hopes to submit related bills and a request for approval of Japan’s joining the convention to the Diet by the end of 2011. If Japan joins the convention, it will not be applied retroactively.

A total of 84 countries, mainly in the Americas and Europe, are parties to the convention, which went into effect in 1983. Among the Group of Eight industrialized countries, Japan and Russia have not joined the convention. The United States and European countries have urged Japan to join, and Prime Minister Naoto Kan announced Japan’s decision during a G8 summit held in Deauville, France, on May 26-27.

The convention is typically applied to cases in which a divorced parent removes his or her child under the age of 16 from his or her country of habitual residence and the left-behind parent requests the child’s return, alleging that he or she has been wrongfully removed.

Under the convention, the left-behind parent makes the request through his or her country’s “central authority” to the central authority of the abductor parent’s country.

The central authority of the abductor parent’s country has a legal obligation to locate the child and take all appropriate measures to obtain the voluntary return of the child. The primary aim of the convention is to secure the prompt return of children wrongfully removed from their country of habitual residence.

Exceptions to this rule include when there is a preponderance of evidence that the left-behind parent had consented to the removal of the child; when there is a preponderance of evidence that the left-behind parent was not exercising custodial rights at the time of removal; or when there is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

A court in the abductor parent’s country decides whether the child should be returned if the two parents fail to agree on a voluntary return of the child.

Once it is decided where the child will live, there is another round of court proceedings in that country to determine who has parental authority. As countries have differing systems for determining this, resolution of the issues can be difficult.

Roughly 1,300 requests for the return of children are filed worldwide annually.

According to data released in 2010 by the Netherlands-based convention secretariat, children were returned voluntarily without the involvement of courts in 45 percent of the cases; children were returned on the basis of court orders in 30 percent of the cases; and courts rejected requests for the return of children in 20 percent of the cases.

Referring to the Kan administration’s decision to join the convention, Chief Cabinet Secretary Yukio Edano said, “It is desirable for our country to be consistent with international standards.”

Because the number of international divorces involving Japanese nationals is on the rise, the decision that Japan should join the same legal framework as other countries is understandable.

According to the health and welfare ministry’s population dynamics survey, there were some 4,100 international marriages involving Japanese nationals in 1965. This number topped 10,000 in 1983 and reached a peak of 44,701 in 2006. After that, it started to fall, dropping to 34,393 in 2009.

The number of international divorces involving Japanese nationals topped 10,000 in 1998. It leveled off at around 15,000 from 2002 to 2005, but climbed to 19,404 in 2009.

Many Japanese mothers allege that they had no alternative but to take their children and return to Japan in order to escape domestic violence.

Such allegations have made the Japanese government hesitate to join the convention, but as long as Japan is not a party to the convention, it cannot legally settle these cases or pursue cases in which non-Japanese parents have removed their children from their Japanese homes and left the country.

In working out related domestic bills, the general principle for the government and the Diet should be to give priority to protecting the well-being of the children involved.

Under the outline of the domestic bills, the Foreign Ministry would serve as the central authority for locating children who have been removed wrongfully by one parent and for working toward their voluntary return.

Parents who have removed their children from foreign countries would be able to refuse to return the children if they could prove that they or their children were subjected to domestic violence, or that they faced criminal prosecution in the country where they formerly resided.

Some Japanese parents harbor concerns about Japan joining the convention. They may be worried about the possibility of being separated from their children or about how to establish that they are victims of domestic violence in the event that they have to go to court. The government should consider how to help parents who may become involved in child-custody disputes.

As Mr. Kenji Utsunomiya, head of the Japan Federation of Bar Associations, said, the government should enumerate possible issues and have experts fully discuss them from the viewpoint of protecting the well-being and interests of children. It also should provide necessary information and support to Japanese parents living abroad.

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Japan court allows family reunion in U.S. after int’l divorce

Posted on May 28, 2011. Filed under: Child Abduction, Child Custody and Visitation, Divorce | Tags: , , , , , |

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.’’

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Debate awaits on child custody pact

Posted on May 24, 2011. Filed under: Child Abduction, Child Custody and Visitation, Divorce, Hague Convention | Tags: , , , , , , , |

By MAYA KANEKO
Kyodo

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.

//

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.

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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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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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Justice for Smuggled Turtles, But Not For Children Kidnapped from the United States (via Rocjapan Blog)

Posted on February 21, 2011. Filed under: Child Abduction | Tags: , , , |

Good story. It really shows that turtles are more important than children. It seems federal authorities have their priorities out of whack.

LOS ANGELES — While the alphabet soup of U.S. federal authorities—DHS, TSA, FBI CBP and DSS, among others, has collectively been impotent and absent in preventing and rectifying the kidnapping of American citizen children from the United States to Japan, it has been Johnny-on-the-Spot in nabbing three particularly vile miscreants—for smuggling more than 50 live turtles and tortoises into the United States. On January 7, 2011, agents with the U.S. … Read More

via Rocjapan Blog

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