‘Good parent’ ditched in custody case reversal

http://www.japantimes.co.jp/news/2017/01/27/national/crime-legal/reversal-high-court-ditches-good-parent-rule-granted-dad-custody-daughter/#.WIuHj7GZPVo

‘Good parent’ ditched in custody case reversal

The Tokyo High Court has overturned a rare family court decision last year that granted a father custody of his daughter because he was more inclined than his estranged wife to allow greater visitation.

Thursday’s high court ruling, which returns custody of the 9-year-old girl to the mother, emerged during an appeal trial that had left custody in limbo. The parents have been living separately since the mother took off with the child in 2010.

“The daughter has been living with her mother, is growing up healthy and wants to continue living with her mother in the future,” presiding Judge Yoichi Kikuchi said. “Taking into account what is in the best interest of the daughter, it is reasonable that custody is awarded to the mother.”

The initial ruling, handed down in March 2016 by the Chiba Family Court’s Matsudo branch, attracted public attention for applying the “good parent rule,” which grants custody to the parent deemed more inclined to allow greater visitation — and ordered the mother to hand over the girl to the father.

The father had said he would allow his wife to see her daughter 100 days a year if given custody. The mother said she would allow him to see his daughter just once a month.

Thursday’s judgment was based on the principle of continuity, with the court stating that a child’s healthy development is not ensured just by seeing a separated parent.

“The number of days for visitation is not the only criteria to decide who has custody, and is less important compared with other conditions,” the ruling asserted.

“If the daughter, who is an elementary school student, goes back and forth between the parents’ houses for 100 days a year, it would be a physical burden and would affect her relationship with her school and her friends,” the court said, judging that one visit a month is appropriate.

The mother left with her daughter in May 2010 after the couple became estranged. He has not seen the girl since September that year.

The mother issued a statement after the ruling thanking the high court for supporting her claim.

The father said he would appeal. “The judgment cannot be forgiven, because it gives advantage to a parent who took away the child first,” he said.

“It is hard to believe the high court respected the child’s will,” said the father’s lawyer, Akira Ueno.

Japan Times editorial on handing over a child

http://www.japantimes.co.jp/opinion/2017/01/26/editorials/rules-handing-child/#.WIuEfbGZPVp

EDITORIALS

Rules on handing over a child

Court rulings ordering a divorced parent to hand over a child to his or her former spouse are often ignored — largely because there are no specific procedures under the law governing enforcement of such a custody transfer. A revision of the relevant law is imperative to ensure that court decisions on child custody are enforced. There are two important points for consideration — creating a clear rule for the compulsory enforcement of a court order by a legally empowered official, and imposing financial penalties on the parties defying court orders to get them to comply. Either way, due consideration should be paid to the welfare of the children, including the potential psychological damage from the procedure.

In the absence of a specific legal procedure for custody transfers between divorced parents, the Civil Execution Law’s provision on the transfer of movable property is currently referred to in enforcing a court ruling ordering a divorced parent to hand over a child to the other party. But it would not stand to reason to treat children as if they were “property.”

In the case of international marriages, the compulsory execution of a court order on a custody transfer is possible under the 1980 Convention on the Civil Aspects of International Child Abduction, popularly known as the Hague Convention. As of November, 95 countries were parties to the convention, which Japan signed and ratified in 2014. A law setting domestic procedures needed to implement the convention has been enacted and put in force.

The law includes a detailed provision stating what an enforcement officer in charge of removing a child from a parent who abducted that child to Japan and handing that child over to the other parent should and should not do, including the need to try to persuade the abducting parent and asking for police assistance if necessary. The provision says an officer can use some form of power to restrain or make a parent who resists giving up the child comply, but prohibits the officer from using this power if it causes harmful effects on the child. The law says that if a court rules that a child must be moved back to his or her “state of habitual residence,” the parent who won the case can in principle ask for the decision to be executed by an enforcement officer after two weeks have passed. This rule leaves room for the disputing parents to agree on the transfer of the child in an amicable way without the involvement of an enforcement officer.

Last year, Justice Minister Katsutoshi Kaneda asked the Legislative Council, an advisory body, to look into revising the Civil Execution Law to set down specific procedures to enforce court decisions ordering the handover of children between divorced parents. Based on its recommendation, the government is expected to submit a bill for the revision to the Diet as early as next year.

Setting down the relevant procedures makes sense given what is happening to divorced parents and their children. In 2015, there were 97 cases in which divorced parents with parental prerogatives or the care and custody right over their children asked that their former spouses turn the children over to them, but the children were handed over in only 27 of the cases, according to the Supreme Court.

Merely setting the procedures for a compulsory execution of the court order — which would involve an enforcement officer stepping in to physically remove a child from one parent and hand him over to the other — may be too rigid and may not serve the intended purpose of the amendment. The procedures should include an indirect approach that may seem lukewarm but will eventually lead to the transfer of a child. One option would be to fine a parent who refuses to comply with the court and, to encourage compliance, the size of the fine would rise as long as the parent keeps refusing to obey the order.

Priority should be placed on the indirect approach so that the child handover can take place in a more amicable manner. But a mechanism should also be included that will trigger a compulsory enforcement if, for example, it’s suspected that a parent ordered to give up the child is seeking to dodge the ruling by continuing to make the payments. The law to implement the Hague Convention says that the removal of a child must be carried out when the child is together with the parent who took him or her to Japan, out of consideration for the psychological effects on the child. The advisory council should take into account how to minimize the risk of trauma on children in executing court rulings.

Tokyo family court orders husband to pay each time he refuses child visitation right

http://mainichi.jp/english/articles/20170121/p2a/00m/0na/018000c

Husband ordered to pay wife 1 mil. yen each time he refuses child visitation rights

January 21, 2017 (Mainichi Japan)

Japanese version

The Tokyo Family Court has granted a woman’s petition for her estranged husband to pay her 1 million yen each time he refuses her visitation rights to see their daughter, an extraordinarily high amount for such a case, it has been learned.

The woman — a foreign national — filed for an indirect compulsory execution with the court after her Japanese husband refused to allow her to see their eldest daughter once a month for five hours as granted by a court. An attorney representing the woman praised the ruling, calling it “an epoch-making decision.”

The husband, who has been living with the daughter since he was separated from his wife in 2011, has appealed the ruling to the Tokyo High Court, with his attorney saying, “The amount of money lacks common sense.”

According to the decision handed down by the Tokyo Family Court on Oct. 4 last year and other information, the husband — who is in the midst of divorce proceedings with his wife — withdrew their then 7-year-old daughter from her elementary school after he left the family’s home in 2011, and transferred the girl to another school. He withheld his new address from his wife, and the woman filed for visitation rights with the family court.

The husband dismissed the wife’s visitation request, saying, “There is a risk of my daughter being taken away to a foreign country,” by citing instances such as his wife locating and visiting their daughter’s new school, but the family court granted the wife monthly visitation rights in December 2015. The Tokyo High Court also upheld the ruling, finalizing the decision. However, the husband refused to follow the court decision, and the wife filed for an indirect compulsory execution of the order.

In handing down the Oct. 4, 2016 ruling, judge Tetsuo Tanahashi of the Tokyo Family Court said, “The husband has repeated the same argument for his refusal of visitation that has already been dismissed by the court. We can no longer expect him to comply with visitation voluntarily, and visitation rights need to be ensured through indirect compulsory execution.” The court decided to charge the husband 1 million yen per refusal of his wife’s visitation requests based on his income and other factors. The husband eventually complied with visitation request, allowing his wife to see their daughter for the first time in five years.

After the Supreme Court granted an indirect compulsory execution over a refusal of visitation rights in 2013, other courts followed suit, with the accused party charged around 50,000 yen to 100,000 yen per refusal. Still, some parents choose to pay to keep their estranged spouses from meeting their children.

Takao Tanase, a lawyer representing the wife, commented, “The court took a resolute attitude toward the husband’s disregard for the court decision, which ruled that the wife should be allowed to see their daughter for the sake of the child.”

Some experts have raised questions over the forcible execution of visitation rights through the power of money. An attorney for the husband said, “The husband couldn’t comply with visitation request out of fear of his daughter being abducted. The amount charged lacks common sense.”

Italian Case

Source:  http://www.kizuna-cpr.org/italian-case

An Italian Case

A case of an Italian citizen has occurred. He moved with his family from Europe to Japan.
Then, his two children were taken to Nagasaki. His court case begins on January 12, 2017.

日本語テキストは以下の通りです。

English translation, Japanese translation, and image of Italian news story below.

Online article:
http://www.lastampa.it/2017/01/06/italia/cronache/luomo-che-combatte-la-legge-nipponica-per-rivedere-i-suoi-figli-2xgHMN5GrE7ImR8M5RkswK/pagina.html

Page 12 | Top News | LA STAMPA Friday 6 January 2017

 

The man that fights Japanese law to see his children again

“My wife took them and the judicial system protects her”

 

 

People

FRANCESCA SFORZA

ROME

 

 

“My dad? I don’t know where he is, nor what he’s doing.” This is what lots of Japanese people are saying once they become adults; after the parents’ separation and divorce, they have no idea where their fathers have gone. But they haven’t been abandoned; it’s the law. Something may change though, and if this is the case, it would also be thanks to the battle of an Italian father, who is fighting to have his rights respected. In case of victory, he could contribute to revolutionize the Japanese Family Law System. In Japan, joint custody does not exist. If a couple divorces, the court will take over the decision of which of the parents will take custody. Apart from some very rare cases, the children end up staying with the mother. On top of this, too often custody ends up being assigned to the parent that takes away the children first, with the result that the other parent loses his rights in that very precise moment. The visitation rights belong to the children and not of the parent. In a culture where the fathers end up spending too much time at work, and the mothers have no interest in keeping the relationship with the in-laws, you can explain well the enormity of the numbers we’re looking at; at least 3 million Japanese children, in the last 20 years, have been raised without being able to see one of their parents.

 

“We have not divorced yet, but I don’t know anything about my children from last July, I couldn’t even say Happy Birthday for my daughter’s second birthday” says Pierluigi, who requested to stay anonymous to avoid creating problems while close to the hearing, that will take place in Nagasaki in mid-January. He, an Italian citizen, and his wife, Japanese, have moved to Tokyo from Germany, the country where their two children were born. “I decided to move here because I know well and love Japan since a long time ago, and I think their educational system is very good. I did it for my children.” However, shortly after relocating, he had been surrounded by his wife’s relatives, who informed him that in order to solve the usual couple-related problems it was necessary to live separately – “If you don’t agree we’ll call the police.” After this, she decided to move near Nagasaki with the children, the city where she is from. “Even though I know so many things about Japan – says Pierluigi – I had never heard about child abductions during marriages. We are still married, and I still have all the rights on my children, but since my wife took them first, if I tried to get them back they would arrest me.” No help even from the Police or the local social services; all of them agree that this is an injustice, but the fact that children cannot see one of their parents is not considered a crime or an abuse.

 

But Pierluigi doesn’t want to stay without his children: “Between us there’s a very strong bond, when we lived together the neighbors often told me “you’re like a mother to them” … I still have a very clear image of my 4 1/2-year-old son, one of the last times that his mother allowed me to see them; he came out of the house bare foot crying and begging me not to leave.” Together with his attorneys, Pierluigi has planned a strategy that is grabbing the attention not only of foreign nationals who lost access to their children, but also of many Japanese parents, who more and more feel this type of forced separation is a violent injustice perpetrated by the legal system. The fact that the Japanese judicial system considers custody-related matters after the end of a marriage as exclusively “private”, has delayed the signing of the Hague Convention on the Civil Aspects of International Child Abduction (that took place only three years ago and has no retroactive effect). On top of it, this has increased the understanding that the children belong to the mothers and that the father’s role is not relevant in raising a child. “We are in Japan, why should the kids speak Italian” – Pierluigi’s mother-in-law said. Also, “What’s the problem if you don’t see them for one or two years? I raised three kids without my husband.”

 

Many international governments have already pressured Japan to end abductions, and several Japanese politicians are ready to cooperate in order to improve the situation. There are lots of things to plan carefully before the hearing: “You just need to act in the best interest of the children, as it’s specified in the interpretation of article 766 of the Civil Code.” You need knowledge, courage and passion. We ask him if at least he’s a bit angry: “It’s useless, if you enter a Japanese Court angry – he says – you have lost before even beginning.”

 

3 million – It’s the estimated number of children that were raised without seeing one of their parents in the last 20 years.

 

The parents – Victims of the forced separation are not only foreign nationals married with a Japanese person, but also many Japanese parents themselves.

 

The sequence of events

Pierluigi (the name is invented) and his wife, decide to move to Tokyo, the Japanese capital city, from Germany where they were living with the two children born during their marriage.

Shortly after relocating, the wife’s relatives inform Pierluigi that in order to solve the usual couple-related problems, the only solution is to live separately for some time. The woman moves with the two children to Nagasaki, where her family originates. In July, Pierluigi sees his children for the last time.

Pierluigi and his wife are still married, but according to the Japanese law, if he tried to get his children back he would be arrested. His is one of the many child abduction cases that in Japan are becoming more and more frequent.

In mid-January a Family Court will examine Pierluigi’s case. Many Japanese and foreign parents are awaiting this hearing with big hopes. His case could revolutionize the Family Law of Japan.

ページ１２ | トップニュース | LA STAMPA ２０１７年１月６日（金）

子供たちとの再会を果たす為、日本の法律と戦う男性

「日本の司法制度は、子供たちを連れ去った妻を守っている」

社会

スフォルツァ・フランチェスカ（FRANCESCA SFORZA）

ローマ

「お父さん？どこにいるかも何をしているかも分からない。」これは、日本のたくさんの子供たちが大人になった時に言う言葉である。子供にとって、両親が離婚したら、父親はどこに行ったか全く分からなくなる。でも、捨てられたわけではない、これが日本の法律だ。だが、これから何か変わるかもしれない。その場合、その正義を守るために戦っているイタリア人の父親の影響は大きいだろう。この戦いに勝つ場合、日本の家事法制を大きく変える可能性がある。日本で、離婚後の共同親権は存在していない。夫婦が離婚をする際に、親が親権を争う場合には、親権は裁判で決定される。とても稀なケース以外、子供たちの親権は母親が持つことになる。さらに、親権は最初に子供たちを連れ去った親が獲得する。その結果、もう一人の親が子供に対する権利をその瞬間に失うことになる。面会は親ではなく、子供の権利である。一日の仕事の時間が長すぎる父親達の文化、また、母親達は義理の親戚との繋がりを持つことに興味はない文化の中で、この２０年の間に３百万以上の子供たちは、片親と会えない状況で育てられた。

「まだ離婚していないけど、子供たちはどうなっているか、去年の７月から何も分からない、２歳になった娘にお誕生日おめでとうということも言えなかった」とピエルルイージさん（仮名）は言った。イタリア人の彼と日本人の妻と子供二人は、子供たちが生まれたドイツから東京に引越した。「ここに引越した理由は、昔から日本のことを知っており、大好きな国だったから。また、日本の教育制度はとてもいいと思い子供たちの為に引っ越したのです」。しかし、引越して生活も落ち着かないうちに、彼は、妻の親戚に取り囲まれ、夫婦間の問題を解決する為に離れて生活するべきだと伝えられた。「同意しないと警察を呼ぶ」と言われたため、彼はその後、妻が子供たちと実家の長崎に引越すことを決めた。「日本について色々なことを知っていたが、婚姻中に子供の連れ去りのことは聞いたことはなかった」とピエルルイージさんは言った。「私達はまだ結婚している、また、子供たちに対しての親権はまだ持っている、ですが妻が先に子供たちを連れ去ったため、私は引き取ろうとすると捕まるのです」。日本では連れ去りは合法なのに、連れ去られた子供たちを連れ戻そうとすると違法になる。警察も現場の児童相談所も助けてくれない。全員がこれを不正義だと同意しているにもかかわらず、両親と会えないことが刑法に違法なことでもなく、また虐待としても認められていない。

ピエルルイージさんにとって、子供たちと一緒にいれない現状は、耐えられないものである。「子供たちと非常に良い関係にある。一緒に住んでいた時に隣の人は『あなたはまるで子供たちの母親のようだ』としばしば言われていた。別居中に子供たちと会った後一人で帰るとき、４歳半の息子は裸足で家を出て、行かないでと泣き叫んでいた光景は頭に非常に鮮明に残っている。」弁護士と一緒に練った戦略は、子供たちに会えない外国人だけではなく、法律制度により虐げられていると感じている日本人の親たちから注目されている。日本の法律制度は、親権の争いは「プライベートな問題」だとみなしており、それが「国際的な子の奪取の民事上の側面に関するハーグ条約を日本政府が締結することを遅らせた（３年前に締結されたが、締結される前のケースには効力は及ばない。）さらに言えば、この法律制度は、子供たちは母親の所有物であるとの考えや、また、父親の役割は子育てに大切ではないという考えを増長した。ピエルルイージさんの義理の母は、彼に対し「イタリア語は要らない、ここは日本だから」と言ったり、「１・２年間会わなくてもいいんじゃない？私は夫いなくても３人を育てましたよ。」と言ったという。

日本国内で行われている一方の親による子供の連れ去りを止めさせる為、外国政府の多くが既に圧力を日本政府にかけている。また、何人かの日本の政治家は、事態を改善する為に協力する用意はできている。日本で裁判の審理を受ける前には、注意深く計画し、多くの点に気をつけなければならない。「民法７６６条の解釈を明記し、子供の利益に沿って動く必要がある」。知、勇、情が求められる。我々は、彼に対し、少しでも怒りがあるのか聞いてみたところ、彼は言った。「怒りは無意味です。もし、日本の裁判所に怒りの感情を有して入ったとしたら、裁判が始まる前に既に負けています。」

３百万 – 最後の２０年間に両親一人と会えなくなった子供たちの予想数。

両親 – 不当な連れ去りの犠牲者は日本人と結婚している外国人だけではなく、日本人の両親自体も含まれる。

時事の流れ

ピエルルイージさん（仮名）と妻は子供二人が生まれたドイツから東京に引越すことを決意

引越後すぐ、妻の親戚がピエルルイージさんに、夫婦の問題解決の為、一定期間、別居すべきと勧告。妻は子供たちを連れて実家である長崎に引越す。その７月が、ピエルルイージさんが子供たちと会える最後の機会となった

ピエルルイージさんと妻はまだ結婚している。しかし、日本の法律によれば、もし彼が子供たちを引き取るように動くならば捕まるであろう。彼のケースは、日本で増えている子供の連れ去りの多くのケースの一つである

１月の中旬に家庭裁判所はピエルルイージさんの事件を精査する予定。子供を連れ去られた日本と外国の多くの親が彼の審理を大きな希望をもって待っている。彼の事件は、日本の家事法制を大きく変化させることができるかもしれない。