Law needs chaging regarding Custody of Japanese/American children

[GoNative]

The native parent generally gets custody in most cases because the child has grown up, made friends, and speaks the language of that country probably a whole lot better than the other. It's generally less traumatic for the child to stay in the country they grew up in.

This issue is about the non native parent, who more than likely hasn't been granted custody, moving back to their home country and basically abducting their children with them. Because Japan is not a signatory to the convention on child abduction there is very little the custodial parent can do legally to have them returned. And this works both ways for children abducted from or to Japan.

[manganimefan227]

This, is really sad somehow . . .

[GoNative]

Sad indeed. Much of the current issues could be easily solved if Japan just got on board with most other 1st world, progessive nations and ratified the convention. That they haven't as yet is quite beyond me.

[MMM]

Originally Posted by GoNative

Sad indeed. Much of the current issues could be easily solved if Japan just got on board with most other 1st world, progessive nations and ratified the convention. That they haven't as yet is quite beyond me.

International divorce is never pretty. There will inevitably be more losers than winners in the situation.

[GoNative]

This issue currently though in Japan is that kids can be abducted to or from the country and because Japan isn't a signatory to the convention on child abduction there is very little legal recourse for the custodial parent.

I'm wondering what are the reasons Japan has not signed the convention?

[MMM]

Originally Posted by GoNative

This issue currently though in Japan is that kids can be abducted to or from the country and because Japan isn't a signatory to the convention on child abduction there is very little legal recourse for the custodial parent.

I'm wondering what are the reasons Japan has not signed the convention?

Because Japan is an island country with a declining population that protects its citizens and bloodlines with a passion?

That is my ranty guess. Maybe it makes it easier to avoid lawsuits and confrontation.

[Nyororin]

Japan has stated it`s reasons as there being no advantage for it`s citizens as other countries "reserve the right to overrule" custody rulings in other countries. The US issue is the one I am most familiar with - even if the child has lived in Japan since birth, does not speak a word of English, and the father has been ruled an unfit parent... If he returns to the US and files there the US courts will overrule the Japanese custody rulings and allow him to forcibly take the children should they ever set foot on US soil. And it`s all "legal". It is also an issue that a child can be abducted from Japan by a foreign parent and no matter what may be said - it`s very easy for a foreign parent to deny access to the Japanese side. I know of two cases where the foreign mother was deemed an unfit parent in Japan (for valid reasons), but who took her children from the country and filed various extensions, etc, once back in the UK and US. One of the fathers is still trying to find out where his little girl is 5 years after the mother took her to the UK. The other has been legally shut out of the child`s life because the mother in the US cited Japanese attitudes toward sexuality as putting the child at risk should they live in Japan - and the US courts agreed.
Japan views this as legal "abduction", but has no recourse against it, so "protects" the children by not agreeing to send them abroad/etc according to the international convention on abduction. "No benefit visible for citizens" being the official statement.

Of course a lot of these cases aren`t ones where they should be protected, and there are plenty of cases of real abduction by an unfit parent, etc. There needs to be something done, but I can sort of see why there are some people out there who are strongly against it... Like women who I translated for during their divorces who are now terrified by the experience of the woman who joyfully took her children to visit their now-interested father in the US and had them removed from her custody "legally". They`re afraid that the father or his family (despite taking no interest at the time of the divorce) will suddenly decide to (if they haven`t already) file something giving him custody in the US - and that they`ll have their kids whisked away if they leave Japan as countries tend to side with the US. And these are women who divorced in Japan and received custody of the children legally - not through abduction.

I think that the entire system needs a serious overhaul to combat not only abductions, but also the reasons behind the abductions - and to hopefully be more in the interest of the children involved.

I have a question. If a couple divorces in Japan, would the non-Japanese spouse lose the ability to live in Japan?

If you have a minor child in Japan with Japanese citizenship, you can receive a PR visa after a divorce for the interests of the child. Having a child with US citizenship doesn`t grant that right to the parents (although it can make it easier, as in fewer years from start to finish). I think the difference is because of the way that citizenship is doled out to children born in the country. Japanese citizenship requires a parent with Japanese citizenship (jus sanguinis), while US citizenship is granted to any child born in the US (jus soli).

The native parent generally gets custody in most cases because the child has grown up, made friends, and speaks the language of that country probably a whole lot better than the other. It's generally less traumatic for the child to stay in the country they grew up in.

Unfortunately, this isn`t necessarily the case in the situations I have had contact with. The native parent where the divorce is done almost always gets custody - even if the children have lived elsewhere up until then. This is true of Japan, the US, and the UK.

[GoNative]

From what I've read the US is actually one of the few countries that does uphold custody agreements from other countries (who are signatory to the child abduction convention) and will prosecute it's own citizens that have abducted children from those countries.

The problem in Japanese cases is that generally the Japanese courts do not get involved in custody issues and do not make rulings on custody. So there is very little say a court in the US can rule on as there is no legally binding custody agreement. Even if a child has been abducted from Japan back to the US (this is rare compared to the other way around) then because Japan is not signatory to the convention then the US is not bound in any way to uphold any agreement that may be in place.

Japan signing the agreement will protect it's own citizens as well.

[Nyororin]

Originally Posted by GoNative

The problem in Japanese cases is that generally the Japanese courts do not get involved in custody issues and do not make rulings on custody.

If the divorce goes to court, there will be some sort of ruling on the custody. The main reason divorces involving children end up in court is for custody issues. When it is a divorce by mutual agreement, part of the divorce agreement is to give up the children to one side or the other. It is usually to the mother - but it is still present in the divorce agreement itself as the children have to belong to one side or the other.

This is legally binding in Japan. The custodial parent is free to give as much or as little access to the other parent as they like - but things have been changing toward making the custodial parent keep up contact with the non-custodial if possible. If there are serious problems (abuse, etc), the custodial parent can legally deny complete access to the children.

From what I've read the US is actually one of the few countries that does uphold custody agreements from other countries (who are signatory to the child abduction convention) and will prosecute it's own citizens that have abducted children from those countries

In what I have seen, they will uphold when it is a clear case of abduction even for countries that have not signed. When it is not clear, such as when the foreign parent said that they agreed to give up custody on the condition that they be given equal access to the children - but has NOT been given equal time with the children (because they live in the US while the children live in Japan) things change. The mother didn`t honor the agreement and so the US reserves the right to overrule. This is particularly easy to do if the father brings the children to the US legally and gets them "settled in" - and then pursues legal action in the US based on the Japanese system having been unfair to him (regardless of whether this is true or not).

As you said though, there are a lot more cases of children remaining in Japan than being whisked off to the US - most likely because there are a lot more Japanese women married to western men than the other way around. And because of the sad fact that more fathers are willing to write off children than mothers... So the issue of children being abducted to Japan is much larger than children being removed from Japan.

[dogsbody70]

Originally Posted by Nyororin

I agree that Japan should stop turning a blind eye to child abduction...

On the other hand, I think the real issue is that in the case of an international divorce, the parent who doesn`t receive custody is going to be likely shut out of the child`s life. Not by laws or actions of the custodial parent, but by the difficulty of having a parent living in a different country than their child.

Countries have a strong tendency to grant custody to the native parent. This is true outside of Japan as well as in. What is best for the child in the long run is very hard to determine (impossible, really) if both the parents are normal and decent. But one side has to be chosen, so local courts favor the native over the immigrant/foreign resident/visitor. Add in language and cultural things, and the non-native is often at a severe disadvantage even if the native parent is NOT a good person for children to be with. Again, this is not a Japanese issue - it happens everywhere.

Anyway, in the case of Japan, you get far far more non-Japanese husbands with Japanese wives than the other way around... And they tend to head back to their own country after a divorce. A LOT of these divorces happen very soon after a baby comes into the picture - and taking an infant from a mother is harder than granting the father visitation and keeping the baby with the mother. The thing is, the dad usually heads back home... There is no easy way to keep up visitation if he lives in another country.

Not to mention that in any and every case I have heard of where custody was granted to the Japanese mother, when the child went to visit the father in another country... Somehow the custody agreement was annulled and custody was granted to the father in his home country if he took any interest in obtaining it. Even after years and years of no absolutely no contact. A woman who lives quite close to me took her 3 children to visit their father in the US 6 years after she`d been granted custody (and 5 years after he`d stopped providing support and contacting them at all, but 6 months after he remarried and took a sudden interest in seeing them again). And she was met at the airport by him, a lawyer, and police to remove the children from her custody. Apparently he`d convinced them that her not having enough money to fly all of them to the US every 6 months to see him was her denying him access, so she was deemed unfit. She`s now fighting to gain access to children who only knew her for most of their lives, but are now blocked from even speaking on the phone to her.

There are huge problems on both sides, really.

That sounds to be a dreadful situation. Poor kids pulled between two parents like that.



Even here in the UK it can be awful for fathers-- too often not allowed contact etc-- that is why we have Fathers for Justice, On the whole the dads get a very raw deal.


International marriages must bring up many problems if the parents separate or divorce in any situation.


Parents AND children can suffer especially those of a different religion.


I don' t know if there can be any protection and warning-- when couples actually marry.


It really is a difficult situation.