http://ajw.asahi.com/article/behind_news/social_affairs/AJ201510270089

U.S. official calls for direct meetings between parents, children ‘abducted’ to Japan

October 27, 2015

By TAKASHI OSHIMA/ Correspondent

A senior U.S. official called on Tokyo to give American parents “direct, in-person contact” with their children living in Japan during custody battles with Japanese parents under a child abduction treaty.

Deputy Assistant Secretary of State Karen Christensen called for such one-on-one meetings in referring to the Hague Convention on the Civil Aspects of International Child Abduction, which stipulates what member nations should do when mothers or fathers take away their offspring without the consent of their spouses.

“We believe that the Japanese central authority really does take its responsibilities in the Hague Convention very seriously,” Christensen said in a recent interview with The Asahi Shimbun in Tokyo.

“When we say ‘meaningful access,’ in the end we mean direct contact and unsupervised contact,” Christensen said. “We have not yet seen that kind of direct, in-person contact that we’re looking for. We would like to see this happen quickly.”

According to Washington, more than 30 Americans have requested meetings with their children living in Japan since Tokyo joined the Hague Convention in 2014.

Although some of the U.S. parents have talked to their children in Japan through video conferences or met them in the presence of observers, no in-person, unmonitored contact has been provided so far.

According to the Japanese Foreign Ministry, Japanese parents concerned about the risks of unmonitored meetings with their children have requested that such meetings be done through video conferences or under supervision.

“We will continue our proper support based on laws to realizing person-to-person contact,” a Foreign Ministry official said.

By TAKASHI OSHIMA/ Correspondent
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Custody case a test for Japan, says U.S. father seeking access to girl held by grandmother

BY 

STAFF WRITER

A U.S. man seeking access to his daughter said Monday that the case is an opportunity for Japan to prove to the world it no longer tolerates parental child abduction.

U.S. Navy Cmdr. Paul Toland is suing the mother of his Japanese ex-wife for denying access to his 13-year-old daughter.

His former wife left with the child in 2003, at the age of 9 months, after their marriage failed. The woman committed suicide four years later.

Toland said his situation would amount to a “felony crime” in other countries with up-to-date family laws.

“In Japan, this abduction by a nonparent is not only accepted, but it is condoned. I’m the only parent in the world to (my daughter),” Toland said, who is in Japan for the first time since the trial at the Tokyo Family Court kicked off in July.

Toland said if the case is resolved it would demonstrate to the world that Japan is turning over a new leaf after years of notoriety as a “safe haven” for parental child abduction. If his daughter is not returned to him, he said, it will only alienate the nation further.

Japan joined The Hague Convention on cross-border parental child kidnapping in 2014. The pact does not apply in Toland’s case because the abduction was within Japan — Toland’s family was based in Yokohama at the time. In addition to this, the convention cannot be applied retroactively.

“How can we expect Japan to ever resolve more complicated divorce, child custody issues if it cannot even resolve this very straightforward case, which does not involve divorce and where one parent is deceased and the nonparent is withholding a child above the parent who wants to care for her?” he said.

The daughter has said in a statement submitted to the Tokyo Family Court that she does not wish to be reunited with her father, according to Akira Ueno, Toland’s lawyer.

Given that the separation occurred when the girl was a baby, this suggests that her attitude was learned from others and that she is under a misapprehension of what her father is really like, Ueno said.

“In cases this like, Japanese courts have immaturely decided that children shouldn’t be returned to parents, oblivious to the fact that they’re bound to suffer once becoming adults,” Ueno said.

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DEALING WITH DIVORCE

Japan may empower courts to handle more cross-border divorce suits

BY 

STAFF WRITER

After 18 months of deliberations, the Legislative Council of the Justice Ministry has drawn up an outline for legal revisions aimed at resolving a problem many failed marriages face: whether the Japan-based spouse can file for divorce here rather than overseas.

The council on Friday submitted a proposal to Justice Minister Mitsuhide Iwaki that lists several scenarios in which Japanese family courts should be authorized to handle divorce involving couples of whom only one partner is still living in Japan.

If enacted, it would will mark the first time the government has clarified international jurisdiction rules for divorce.

Following are questions and answers on the issue:

What is the current situation?

Japan has no law that spells out the circumstances under which family courts can handle cross-border divorce disputes between a spouse who sues, the plaintiff, and his or her ex-partner, the defendant.

In the absence of a legal framework, family courts have traditionally decided on a case-by-case basis whether they have jurisdiction in divorce cases, relying only on past Supreme Court rulings.

The rulings acknowledged jurisdiction of the Japanese courts when the defendant was resident in Japan, because the inconvenience of being forced into a legal battle, it was deemed, merited greater consideration than the inconvenience faced by a plaintiff. If the defendant was overseas, that was where the case should be heard.

The-case-by-case approach means there has been no consistency in court judgments, while plaintiffs and their lawyers have had to convince the courts that they meet the special circumstances required to sue for divorce in Japan.

The lack of clear rules has placed prospective plaintiffs under emotional stress as they await a court’s decision on where their suits should take place, said Tokyo-based lawyer Tomohiro Hayase.

Under what circumstances have spouses been able to file for divorce in Japan?

A plaintiff in Japan who fled an allegedly abusive marriage abroad may qualify to have a family court hear the case because unconditionally prioritizing the whereabouts of the defendant can incur problems, Hayase said.

“For example, in cases where a Japanese wife has fled her abusive foreign husband and moved back to Japan, it would be unfair if she has to return to the husband’s country to start divorce (proceedings) against him,” the lawyer said.

Under such circumstances, domestic family courts have customarily decided they will handle the plaintiffs’ cases in Japan — even if the defendants are abroad — in accordance with what the top court called “the idea of fairness between the parties and just and speedy hearing of the case.”

What new rules are being considered?

The Legislative Council, an advisory panel to the justice minister, has come up with seven scenarios under which domestic family courts would preside over cross-border divorces in Japan, including those in which both parties are Japanese nationals.

Other cases include those in which a couple lived in Japan until just before they were separated internationally — a rule Hayase said will make it easier for Japanese to initiate a divorce action against a spouse who left Japan. While this will be a common scenario, the nationality is in fact irrelevant: It could involve two Americans, one of whom continues to reside in Japan and initiates the action.

Until now it has been hard for a Japanese husband, for example, to file for divorce if his foreign wife deserts him, leaves the country and does not inform him where she is. This is because regardless of any culpability the residence of the wife — the defendant in this case — took priority.

The husband would traditionally have to go through reams of paperwork to persuade a family court that he is not to blame for a failed marriage to win jurisdiction over his case. But the new rule, if realized, will grant him the right to initiate proceedings in Japan merely on the grounds that he shared a Japanese address with her before they separated.

“Although beneficial to Japanese, the rule is likely to prove more of an inconvenience to foreigners who left Japan for whatever reason, because unlike before, under the new rule it would be possible to drag them into a court battle in Japan from abroad — even though they are the defendants,” Hayase said.

What will change if the rules are enacted?

The council said the rules will “improve the foreseeability of litigants” and “contribute to swiftly resolving conflicts.”

Hayase agrees. “Whenever clients who sought an international divorce came to us for consultation, we weren’t able to tell them for sure beforehand whether they could proceed with a lawsuit in Japan. All we could do was study past court rulings and do some guesswork,” he said, noting most of his Japanese clients preferred to file for divorce in Japan to avoid the hassle of dealing with a foreign language and having to fly overseas.

“If more precise determinations are possible, that would be a huge load off their shoulders.”

What else does the outline cover?

Subject to the council’s discussion was not only jurisdiction over divorces but also child custody rulings.

Family courts have customarily claimed jurisdiction over cross-border custody battles if the child is in Japan. The proposed rule by the council endorses this tradition, declaring that Japanese courts are authorized to handle such cases when “the child has an address in or is staying in Japan.”

However, should the child be repatriated abroad in the midst of a custody battle, such as one under the Hague Convention on the Civil Aspects of International Child Abduction, Japanese courts are likely to have to terminate the debate and relinquish jurisdiction to their overseas counterparts, said Muneki Uchino, councilor of the Civil Affairs Bureau at the Justice Ministry.

Uchino said the Justice Ministry will compile an amendment based on the outline and submit it to the Diet “as soon as possible,” at the latest by early next year.

How many international marriages take place in Japan?

There were 21,130 new international marriages registered in Japan in 2014, according to data released by the welfare ministry in September.

Of the total, 14,998 couples were those between Japanese husbands and foreign wives, mostly Chinese, Koreans and Filipinos. The remaining 6,132 were of Japanese wives, with the foreign husbands predominantly Americans and Koreans.

There were 14,135 international divorces in 2014.