http://www.japantimes.co.jp/community/2014/04/16/issues/hague-jars-with-japans-family-law-a-zero-sum-game-with-only-one-outcome/#.U08X547D_UN

Issues| LAW OF THE LAND

Hague jars with Japan’s family law, a zero-sum game with only one outcome

by Colin P.A. Jones

Special To The Japan Times

Apr 16, 2014
Article history

On April 1, the Hague Convention on the Civil Aspects of International Child Abduction went into force in Japan, as did the necessary implementing legislation. Having already written about this legislation in a prior column, I won’t revisit the subject here.

While Japan’s accession is a welcome step forward, I wonder how it will actually pan out. Implementation may be frustrated by some basic features of Japanese family law that can be neatly described mathematically: 1+1=1.

I would love to take credit for this wonderfully expressive formula, but it comes from a Japanese lawyer I met a few months ago, who used it to explain his own doubts about the convention’s viability here: “To Westerners, marriage means 1+1=2. But in Japan it equals 1.” It made perfect sense to me, but perhaps I should explain.

The traditional Japanese family structure was the ie, or house. This was an extended family that might encompass four generations of kin and several married couples sharing the same surname and even residence. The head of the house — typically the eldest male — had great authority over other members. Junior members needed his consent to marry or establish their own households. If the house was an economic entity — a farm, shop or other family enterprise — the head would also manage the business.

Primogeniture was the rule, with the eldest (legitimate) son inheriting the house, its property and the status of head. Marriage, childbirth and adoption were the means by which the house was perpetuated. While these were events that involved individual members of the house, they were ancillary to the greater collective: One plus one plus any number of additional ones still equaled one — a single ie.

The ie system was embodied in the Civil Code adopted at the end of the 19th century. It was feudalistic and discriminatory: Children born out of wedlock and women were disfavored, as were younger brothers. The head of house was a legal, heritable status that entailed both power and responsibilities, including a duty to support members of the household as well as control of family property.

The ie system was also a convenient tool for identifying, controlling and governing the Japanese people, which brings us to the koseki (family register) system. By requiring each ie to be registered, the government could implement policy through its head. The house rather than the individual was the smallest social unit directly subject to governance, with the head of the house being formally responsible for paying taxes, facilitating conscription and implementing other government programs.

The koseki system gave a weak central government leverage to govern nationally. The trade-off was noninterference within the family, with the head of the house accorded broad autonomy to govern it as he saw fit. This might include both corporal punishment and the use of junior members as a form of economic asset.

The register was also significant for commerce: It would show who was authorized to dispose of family assets, as well as an individual’s status within a particular house. This information could have financial significance. For example, an eldest son would be a lower credit risk since he could be expected to inherit the family property. The family register became a public document, a state of affairs that continued into the 1970s.

Elements of the ie system were fundamentally inconsistent with the postwar Constitution, which contains both a general egalitarian mandate and a clause specifically requiring gender equality and respect for the individual in family law. Amendments to the Civil Code and the koseki system were unavoidable.

The Americans governing occupied Japan had officially indicated that the Japanese were free to make such amendments to these laws as they thought appropriate so long as basic constitutional requirements were satisfied, which meant gender equality, marriage based on free will and the elimination of head-of-house status. This was not a clear mandate to completely excise the ie system from the Civil Code. Nevertheless, the Japanese drafting team apparently decided that such an approach would likely be viewed most favorably by the Americans.

However, what the Japanese did try to do was surreptitiously preserve elements of the ie system in case there was a desire to revive it after the Occupation (the subject was debated in the 1950s but nothing came of it). Their attempts focused on the Family Register Act rather than the Civil Code. The former being a mostly administrative statute that implemented the latter, the Japanese calculated that the Americans would stop paying attention once they were happy with the amendments to the Civil Code. They were wrong: Having been pleased to see the ie system formally excised from the Civil Code, the American authorities both noticed and objected to efforts to preserve it in the family register system.

In light of the individualistic principles of the new Constitution, the Americans actually advocated introducing a system that registered individuals rather than families. Using classic bureaucratic arguments (including insufficient paper!), the Japanese side held out for a family-based system. The Americans conceded but adamantly opposed any system that would enable three or more generations to appear in the same register, as this would have smacked of the ie system.

The result is the current koseki system, a compromise based not on individuals but on nuclear families: married couples and their children sharing the same surname. If a Japanese man and woman marry, they must establish a new register: 1+1=1. If they have a child it appears in that register: 1+1+1=1. If an unmarried Japanese woman has a child, she must establish a new register: 1+1=1. The same applies if she marries a foreigner and has a child (in family register math, non-Japanese equal zero). Japanese persons appearing in the same register are supposed to share the same surname; it’s part of the equation. If a woman gets divorced, she can revert to her parents’ register, but only if no children are involved.

The resulting system retains anachronisms that continue into the 21st century. Being rooted in marriage and surnames, it discriminates between children depending on whether they were born in or out of wedlock. Furthermore, since one purpose of the system is to identify family relationships so that government agencies and others can confirm who is responsible for whom, it is designed to minimize ambiguity. Parental authority over children is tightly linked to this system, with the Civil Code vesting it in mothers of children born out of wedlock, jointly in both parents during marriage, and in only one parent after divorce. Under this system the locus of parental authority should always be clear from the family registry.

The system is also laissez-faire. Most changes made to the family register are consensual and can be carried out with limited government interference — adoptions, dissolutions of adoptions, even many divorces. So long as a form indicating compliance is submitted, the authorities will accept it and the koseki will be amended to reflect the new status. About 90 percent of divorces, including many involving children, are made in this way, with no governmental oversight of custody arrangements. Even when parties can’t agree, the primary role of courts in the minority of cases in which they become involved is to convince parties to reach some consensual solution rather than to find facts or apply law. Since most resolutions are agreed to by the parties themselves (with or without court intervention), enforcement is something of an afterthought.

A Japanese lawyer recently related to me a consultation he had had with a young foreign man who had been living in his home country with his Japanese wife and their child. The wife took the child back to Japan for the summer and asked him to sign what she said was a school application. He could not read Japanese but signed. His wife and child never returned. When he tracked them down here, he discovered that he had signed a consensual divorce form awarding his (ex-)wife parental authority. Not only that, but his wife had since remarried and her new husband had adopted the child as his own (a common practice in Japan; otherwise the horrible anomaly of 1+1+1=2 — a man not sharing the same surname as or having parental authority over a child in his home — might arise).

This was essentially the same scenario that the other lawyer had enlightened me with using his formula, but it seems to be one that nobody implementing the Hague Convention here seems to have considered. Fundamentally, the Convention treats the parents and child as individuals, while Japanese family law still treats the family as a single unit and doesn’t handle fractions very well.

There are thus some very large gaps to bridge between the convention on the one hand and the Civil Code-family register combination on the other. The former does not distinguish based on the marital status of parents, their nationality or that of the child and is concerned primarily with the best interests of children. The latter is fundamentally rooted in marriage, the marital status of parents and Japanese nationality, all as they are reflected in the family register system. Furthermore, formal family law is largely unconcerned with the best interests of children because that would involve treating them as whole numbers and make consensual resolutions harder to achieve.

Finally, the convention is concerned with place: the child’s habitual residence. The family register system is not: Japanese nationals can register divorces, marriages or even adoptions (of other Japanese people) in their family register from abroad. Whether these transactions are valid in their country of residence is questionable, but the possibility of conflict seems obvious.

With the convention routinely and incorrectly described in Japan as being about “international divorces,” the process of bridging these gaps probably has a way to go. Certainly nobody here seems to have anticipated the possibility that cases seeking return under the Convention might involve families comprised entirely of Japanese nationals.

Of course, case resolutions will be where the rubber meets the road. The government hopes that most cases can be resolved amicably through mediation, whether through the courts or other organizations. (Full disclosure: I am registered as a mediator/arbitrator candidate with the Osaka Bar Association’s dispute resolution center.) Paradoxically, however, it is mediation and a focus on consensual results that contributed to Japan being an abduction haven in the first place — by allowing courts to remain involved while doing nothing affirmative for long enough that the child was settled in his or her new environment.

If mediation and the judicial process just end up being part of an exercise in “convincing foreign father to let the kids stay in Japan” (as one lawyer explained the need for mediation in such cases to me), then the whole process of Japan joining the dozens of other countries already party to the Hague Convention might add nothing to Japan’s family law equation.

Colin P. A. Jones is a professor at Doshisha Law School in Kyoto. Law of the Land appears on the third Thursday of the month. Comments and ideas: community@japantimes.co.jp

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http://www.northjersey.com/community/family/Bill_may_help_left-behind_parents_pursue_kids_in_global_custody_fights.html?page=all

Bill may help ‘left-behind parents’ in global child custody fights

WEDNESDAY, DECEMBER 11, 2013    LAST UPDATED: WEDNESDAY DECEMBER 11, 2013, 12:15 PM
BY  HERB JACKSON
WASHINGTON CORRESPONDENT
THE RECORD

State Department figures show 7,000 American children were taken by a parent to a foreign country to stay between 2008 and 2012, leaving behind the other parent to fight for custody or visitation rights in places where United States court orders mean nothing.

Michael Elias of Rutherford, in 2010, with a photo of his children.

MICHAEL KARAS/STAFF PHOTOGRAPHER
Michael Elias of Rutherford, in 2010, with a photo of his children.

The result is often heartbreak, as most children never return. Adding to it is the frustration from dealing with both the foreign government and the U.S. State Department, which parents and some in Congress say does not put enough emphasis on getting children back.

“Does the word parental in front of kidnapping make it less of a crime?” Michael Elias of Rutherford asked at a House hearing in May, the second time he’s told his story before Congress in the past three years.

A Marine veteran and Bergen County sheriff’s officer whose wife used illegally issued passports to take their son and daughter to Japan seven years ago, Elias has become one of the public faces for a group that calls itself “left-behind parents.”

His willingness to go public with his personal struggles could pay a small dividend today as the House is expected to give strong bipartisan support to a bill sponsored by Rep. Chris Smith that pushes the State Department to use more powerful diplomatic tools.

Unfortunately for Elias and those like him, the department is not very interested in the new powers.

In June, Japan took a step forward when it signed the Hague Convention on the Civil Aspects of International Child Abduction, an agreement that lays out a framework for custody disputes. But Japan’s action will affect only future cases, and existing disputes will be in a legal limbo.

“All the left-behind parents like Michael Elias will be shut out,” said Smith, a Republican from Robbinsville who is a subcommittee chairman of the House Foreign Affairs Committee. Smith has been urging presidents and ambassadors in President Obama’s administration and President George W. Bush’s before him to raise the issue of child abductions at high-level discussions with foreign leaders.

Doing more

Smith’s bill would require the president to take specific actions — ranging from private requests all the way to economic sanctions — if abduction cases are not resolved or if countries show a pattern of non-cooperation. The State Department would have to provide Congress with statistics that Smith says are incomplete now, and pursue separate agreements known as memoranda of understanding with countries that are not likely to sign or abide by the Hague convention.

“The Pollyanna-ish, naive view that the administration keeps spouting is that Japan signing the Hague Convention might create a climate [for solving earlier cases],” Smith said. “There needs to be a memorandum of understanding or a sidebar agreement to say all of the existing cases will be solved civilly and with an eye towards justice.”

A State Department spokes¬man, when asked about Smith’s bill, recommended checking a federal website that the agency has created that spells out how different countries deal with abduction cases.

At the May hearing, the department’s special adviser for children’s issues, Susan Jacobs, disagreed with Smith that a separate agreement with Japan would make any difference.

“We have three memoranda of understanding with Egypt, Jordan and Lebanon, and there’s been no enforcement mechanism and no [child] returns,” Jacobs said. “We believe the Hague Convention provides the best opportunity for resolving these cases. One of the problems with Japan is their belief about custody, that one parent is supposed to drop out of the child’s life when there is a divorce.”

She said once the convention takes effect in Japan, she hoped to be able to work on better compliance, and at least provide for some visitation for parents.

Smith’s bill is named after Sean and David Goldman, the Tinton Falls son and father whose case caught national attention after Sean Goldman’s mother took him to Brazil in 2004 and his grandparents sought custody after she died in 2008.

Smith had been pressuring the State Department to act and made two trips with David Goldman to Brazil, which had signed the Hague convention. The boy was finally returned in 2009 after Sen. Frank Lautenberg said he would block action on a trade bill Brazil wanted.

Goldman has called the forces that aligned to help his family a “perfect storm,” but said most families in the same situation struggle with little hope.

No improvement

For Elias, the only developments in recent years have been negative. He was deployed to Iraq when his wife began an affair with a Japanese man. She told Elias she wanted a divorce when he returned from the war.

Bergen County judge awarded joint custody and ordered that the children’s passports be surrendered. But his wife, who had worked in the Japanese consulate in New York, was able to get new passports issued by the Chicago consulate as she and her companion fled with the children.

Smith traveled with Elias’ parents to Japan in 2011, and at the time they were told by authorities that a criminal investigation was under way into the passport issuance.

In February, Elias received a letter notifying that the Japanese prosecutor in the region had concluded no charges would be filed. The letter was dated October 2010, or three months before Smith and Elias’ parents had been in Japan.

“It was a slap in the face,” Elias said. “People tell me I should just pick up the pieces and move on. But two of my pieces are in Japan.”

Email: jackson@northjersey.com
Blog: northjersey.com/|thepoliticalstate

– See more at: http://www.northjersey.com/community/family/Bill_may_help_left-behind_parents_pursue_kids_in_global_custody_fights.html?page=all#sthash.Widoiyft.dpuf

http://www.youtube.com/watch?v=Fs9ENSzcSs0#t=56

According to United to End Genocide, a U.S. based anti-genocide organization, Dr. Kurt Campbell, a former high profile State Department official, is now involved in commercial efforts in Burma that may further encourage human rights abuses in that country.

During his years at the State Department Dr.Campbell chaired at least half a dozen meetings in Washington with left-behind parents and other left-behind family members with existing cases involving abducted children in Japan.  Participants traveled from all parts of the country at their own expense to attend the meetings, many having to spend significant funds to do so.

Each of these meetings, which were specific to existing child abduction cases in Japan, generally included about three dozen or more left-behind parents and family members, and at least one to two dozen officials from the State Department and other federal agencies.  The meetings were abruptly terminated by the State Department after July of 2011.  No significant progress was made on existing cases by the State Department and the State Department failed to secure the return of any abducted U.S. citizen children despite there being long standing criminal charges against many of the abductors holding the children in Japan.

http://endgenocide.org/former-u-s-official-encourages-investment-in-unstable-state-of-burma/

Former U.S. Official Encourages Investment In Unstable State Of Burma

Posted on March 27, 2013 by Julia Boccagno

Kurt Campbell has been invested in lifiting sanctions in Burma, despite human rights abuses. AFP/Getty ImagesKurt Campbell has been invested in lifting sanctions in Burma, despite ongoing human rights abuses. AFP/Getty ImagesFormer U.S. Official Encourages Human Rights Abuses to ContinueDespite opposition from the U.S. Campaign for Burma (USCB), Kurt Campbell, former Assistant Secretary of State for East Asian and Pacific Affairs, strongly influenced the Obama administration to lift sanctions on Burma in 2012 that were originally imposed more than two decades ago. The economic sanctions were enacted in September 1988 after the military regime committed human rights violations when they killed thousands during a series of peaceful protests.

While the Burmese Army, blamed for the systematic murder and displacement of innocent men, women, and children, continues to carry out crimes against humanity in the Kachin State, Kurt Campbell, in conjunction with his new consulting firm, the Asia Group, will lead the ACO Investment Group (ACO) in order to secure a contract to upgrade and modernize the Yangon International Airport in Burma. The ACO will work closely with Tin Naing Tun, a retired Brigadier General of the Myanmar Army and head of the Department of Civil Aviation (DCA).

Instead of reinstating sanctions on Burma, Campbell would rather encourage U.S. investment with human rights abusers in order to profit. He states, “This is a thrilling opportunity to help advance the progress Burma has made over the past couple years by enhancing prospects for economic investments, and ensuring connectivity for Burma with the Association of Southeast Asian Nations (ASEAN) and the world.”

U.S. Companies Support Campbell

Other consortium members of ACO include Boeing Professional Services, Burns & McDonnell Engineering, Fentress Architects, MITRE Corporation, and Union Consulting. Campbell plans on leading a trip to Burma early next month to pitch the ACO bid. According to the DCA, seven pre-qualified international firms are competing for the tendering of airport construction as well.

The Director General of DCA claims that the new airport, Hanthawaddy International Airport, is necessary because the Yangon International Airport cannot accommodate for the rising number of travelers to the country. Arrivals to Burma are expected to surge around 3 million in 2012—a 22% increase on last year that places it above its 2.7 million threshold.  Potential plans state that the Hanthawaddy International airport, located in the central Bago region, will occupy a site nine times larger than its original and will have the capacity to hold 5.5 million passengers.

Revolving Door Politics Corrupt Burma

As one of the key architects of the Obama administration’s Asia “pivot,” Campbell doesn’t waste time transitioning from a legislator to a consultant. After finishing his tenure in public office in February 2013, he announced a few days later that his former deputy assistant secretary, Nirav Patel, would be the chief operating officer of his newly established advisory and investment network, the Asia Group.  The Asia Group focuses on bringing U.S. markets into Asian markets and vice versa.

Revolving door politics refer to the movement of high-level employees from public to private sector jobs. Therefore, there is a “revolving door” between the two sectors as many legislators become consultants for the industries they once regulated. Consequently, conflicts of interest cloud the reasoning of such leaders to practice unbiased decision making. Because Burma has an extended and complicated history of human rights abuses implemented by a brutal military regime, any error of judgment could have irreversible effects on the already unstable country.

http://japandailypress.com/japanese-mother-gains-custody-of-child-abducted-by-australian-father-during-2011-tsunami-2025510

Japanese mother gains custody of child abducted by Australian father during 2011 tsunami

posted on MARCH 20, 2013

by IDA TORRES in NATIONAL

The Family Court of Australia has granted sole custody of a little boy to his Japanese mother, after his Australian father abducted the child during the 2011 earthquake and tsunami. The court said that the boy was not at an “unacceptable risk” from radiation exposure if brought back o Japan.

The father first met the Japanese woman, a farmer’s daughter, when he was still married to his first wife who was pregnant at that time. After the 2011 disasters took place, when the man and the Japanese woman were already married and had their son, he convinced her to go back to Australia to fix their “trouble marriage”. He soon left her to go back to Japan, and when it looked like he wasn’t coming back, she was forced to hand legal guardianship of the boy to her in-laws while she went back to Japan to sort things out with him. She caught him cheating with a woman who would later become his next fiancee and future third wife (we’re sensing a pattern here). When she called her now ex mother-in-law to get her son back, she was told the boy was being shipped off to New Zealand. A bitter legal battle then ensued, with the mother eventually getting the boy back.

Justice Stuart Fowler decided to award sole parental responsibility to the mother and both were allowed to return to Japan. On the side, the judge hoped that Japan would eventually sign the Hague Abduction Convention. During Prime Minister Shinzo Abe’s recent trip to the United States, he promised President Barack Obama that Japan would finally sign the treaty. Japan is the only Group 8 country that is not a signatory to the convention, which aims to protect and to return abducted children to their usual place of residence in case of failed international marriage.

[ via Courier Mail ]

Please sign the following petition, which is to be delivered to Secretary of State John Kerry:

http://www.avaaz.org/en/petition/Japan_to_sign_The_Hague_Convention_on_The_Civil_Aspects_of_International_Parental_Child_Abduction/?cCbXXdb

Children’s Rights Council of Japan recently detected an error in the online database of National Center for Missing & Exploited Children (NCMEC) that was resulting in only two of the posters of American children believed to be abducted to Japan to show up on the NCMEC website.  NCMEC has corrected the problem, and there are now 13 posters involving 17 American children showing up on their website.  Children’s Rights Council of Japan has reposted these cases including the posters with additional details for each case at the following link:

http://www.crcjapan.com/missing-kids.html

Below is a listing of publicized cases of American children believed to have been abducted to Japan in violation of U.S. laws.  The source for this information is the National Center for Missing & Exploited Children (NCMEC).   As of September 11, 2012, there were 13 cases involving 17 American children on the NCMEC website.  This represents only a small fraction of the total cases involving abductions to Japan, as this is only for U.S. citizen children believed to have been taken to Japan.  Also, many left-behind parents do not report their cases to NCMEC, and not all left-behind parents have agreed to go public with their cases using the NCMEC Poster Campaign.  For more details on each case, click on the “View Poster” link.

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Gunnar and Kianna Berg
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Melissa Braden
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Keisuke Collins
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Jonas and Owen Daikaibush
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Hiroki Hagisaka
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Sean Hillman
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Marina Kaneda
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Ezra Lui
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Diona Peterson
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Isaac and Rebecca Savoie
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Wayne Sawyer
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Hana Scordato
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Takoda and Tiana Weed

Here is a link to video of the protest at the Consulate-General of Japan booth at the Aki Matsuri festival at the Bellevue College Main Campus in Bellevue, WA:

 

http://www.bachome.org/wordpress/2012/09/the-government-of-japan-is-monitoring-bachome-org/

https://www.facebook.com/events/455708434462771/

If you are in the Seattle area, come join in the protest at the Consulate-General of Japan booth at the Aki Matsuri festival at the Bellevue College Main Campus 3000 Landerholm Circle SE, Bellevue, WA 98007. Contact Jeffery Morehouse with any specific questions. We will meet up at the Tully’s Coffee at 3080 148th Ave SE, Bellevue, WA 98007 to hand out the “Black Hole” t-shirts in advance.

More on Keisuke’s Law

August 23, 2012

NBC interview with Randy Collins:

http://www.nbclosangeles.com/video/#!/on-air/as-seen-on/OC-Father-Champions-Bill-to-Prevent-Parental-Abductions/167124775

Press Releases from Senator Mimi Walters:

Legislature Sends Two of Senator Walters’ Bills to Governor

For Immediate Release: Wednesday, August 22, 2012
Contact: Everett Rice @ (916) 651-4033

SACRAMENTO — Today, two bills authored by Senator Mimi Walters (R-Irvine), SB 1206 and SB 1174, were approved unanimously by the Legislature and now make their way to Governor Jerry Brown’s desk.

SB 1206, also known as Keisuke’s (Case-K’s) Law, would prevent parents in a custody dispute from applying for new or replacement passports for their children without consent from the other parent.  In addition, the measure would allow the District Attorney to order a freeze on the California assets of an individual who is alleged to have abducted a child.

This bill was introduced at the request of a constituent, whose son, Keisuke, was abducted to Japan from Orange County in June 2008 and has not been returned.  Since his son’s abduction Randy Collins has committed his life to deterring future child abductions.  SB 1206 was approved by the State Senate on a 37-0 vote.

The California Senate also approved SB 1174 on a 36-0 vote.  The measure would allow 56-foot motorsports trailers to operate within California.  Currently, California is the only state that does not allow these vehicles to drive within its borders.  This prohibition has created a disincentive for racing organizations and teams to attend events held at California race tracks.  SB 1174 removes a needless barrier to transporting racing vehicles and team equipment in California.  As a result, the bill will enhance local economies by encouraging NASCAR and NHRA teams to continue bringing their cars to California and participating in local racing events.

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