Foreign parents face travel curbs?

Oct 20, 2009

I think it is safe to say that the countdown has begun — the countdown to it becoming more difficult for you to leave Japan with your children. Difficult, that is, if you are non-Japanese and traveling without their other parent (or his or her written consent).

The recent arrest of Christopher Savoie in Fukuoka for trying to "abduct" his children back to the United States (or into the U.S. consulate, at least) has highlighted what is being characterized in the Japanese media as a new and growing problem: foreigners abducting their children back to their home countries. If they aren't forcibly grabbing the kids like Mr. Savoie, they are taking them back home for a "visit" and then never coming back.

These are often children who were born and raised in Japan, yet their fates are being decided in foreign courts where the Japanese parents are often handicapped by distance, language and expense. If this sounds familiar, it is because it is just a reversal of the experience of scores of foreign parents whose children have been unilaterally brought to abduction-friendly Japan.

In addition to supposedly being a kidnapper, Mr. Savoie has been pilloried in the Japanese media for allegedly having two nationalities, for "tricking" his ex-wife to the United States so he could divorce her and, laughably, even for being a bigamist. But the abduction part of the story simply builds upon what appears to be a media campaign that has been under way since earlier this year, a campaign doubtless intended to help build a domestic consensus for signing the Hague Convention on the Civil Aspects of International Child Abduction.

That this is a government-led media campaign is suggested by the fact that it was NHK, the country's government- sponsored broadcaster, which led the pack by running a special segment on the problem of international divorce and child custody on its morning TV news on July 15. Other less captive Japanese media organizations have duly followed suit, but the stories have all generally followed the same theme, with Japanese parents as the victims. From that standpoint, the high profile of the Savoie case is probably a bonanza for the Japanese cause.

Of course, it is on the degree of victimization where Japan and other advanced countries part ways. Certainly, there are some tragic cases of children who have been taken by a foreign father to countries like Iran or Bangladesh, where the Japanese mother loses all contact. Yet, when children are taken to the U.S., for example, remedies are likely to be prompt, and access ensured while proceedings are under way — hardly as dramatic as the scores of cases of foreigners who have been denied contact with their children in Japan for years.

This may explain why a Sept. 5 article in the online edition of the Mainichi Shimbun was reduced to relating the cases of two Japanese women whose children were taken to England and the United States, respectively (doubtless by fathers who feared a failing marriage would result in them losing their children in Japan). Yet both were able to have their children returned through legal proceedings in these countries — despite Japan not being a party to the Hague Convention. It cost them a lot of money, though, and the article contains the questionable assertion that "Japan not being a party to the Convention results in an excessive financial burden on individuals."

It almost seems as though the main benefit to Japan joining the treaty would be to make it less expensive for Japanese parents to benefit from foreign court systems that value the parent-child relationship more highly than in Japan. There is not much in this or other Japanese media coverage of the issue that will give much comfort to parents (foreign and Japanese alike) who may well continue to be victimized by the Japanese legal system whether it is signed or not.

While Japan signing the Hague Convention is certainly a desirable goal, it is probably convenient for everyone on the Japanese government side of the issue for foreigners to be the bad guys. That way they appear to be dealing with a "new" problem, rather than one that they have already ignored for far too long. From there, the easiest way to prevent further abductions is to require foreign residents seeking to exit Japan with their children to show proof that the other parent consents to the travel. This requirement, I believe, will be the most immediate tangible result of Japan signing the Hague Convention (if in fact it ever does).

If such a requirement is imposed, will it apply to Japanese people? Probably not: Japanese citizens have a constitutional right to leave their country. And foreigners? They apparently lack this right — the re-entry permit foreigner residents are required to have is proof that they are not equally free to come and go as they please!

Ironic, yes, but how Japan "resolves" its abduction problem may itself prove to be a veritable smorgasbord of irony.

Signing Hague treaty no cure-all for parental abduction scourge

Oct. 20, 2009

'Best interests of the bureaucracy' standard applies in Japan

The recent arrest of Christopher Savoie for attempting to "kidnap" his two children in Fukuoka has brought much-needed international media attention to one of Japan's dirty secrets — its status as the developed world's leading destination for international parental child abduction.

Mr. Savoie was stopped by Japanese police on Sept. 28 trying to enter the U.S. consulate with his two children (aged 6 and 8) who had been brought to Japan in violation of a Tennessee court order by their Japanese mother, Mr. Savoie's ex-wife.

Since he had been awarded sole custody in the United States, where the international abduction of a child by a parent is also a federal crime, some might think that Japanese authorities arrested the wrong person. Yet it is Mr. Savoie who had to endure weeks of detention. Although recently released, he still faces the threat of indictment and the possibility of a criminal trial in a court system famous for a 99 percent conviction rate.

Some people familiar with Japan's abduction problem may consider Mr. Savoie's case to have exposed a staggering degree of hypocrisy (not to mention racism) on the part of those running the Japanese legal system. After all, "taking your own child is not a crime" has been the mantra recited to the legions of foreign parents and consular officials who have sought the return of children abducted by a Japanese parent from abroad in the past. With the police refusing to get involved, the foreign parent is left to flail away in Japan's ineffectual family court system which, having no real power to enforce its own judgments, tends to ratify the status quo, even if it means the children involved are suddenly living in a different country, being taught in a different language at a different school, and had a loving parent and other relatives suddenly extinguished from their lives.

The truth is both simple and brutal: If your children are taken to Japan, you may never see them again.

Japan is not a party to the Hague Convention on the Civil Aspects of International Child Abduction, but this is probably only a secondary issue. Domestic abductions are also a widespread problem, and Japanese parents too suffer in a system that simply does not seem to care if a parent is unilaterally removed from a child's life before or after a divorce. They hear the same mantra — "go to family court," "mediate" and "the police do not get involved."

Well, except that sometimes the police do get involved.

A few years ago a Japanese father was arrested for doing the same thing as Mr. Savoie — grabbing his kids at their school. In that case there were no court orders in place, so arguably he was entitled to do so. But he was arrested and duly convicted for the same offense as Mr. Savoie (abducting a minor). Yet what he was doing was essentially a variation of what is a common practice by Japanese mothers prior to divorce — taking the kids and going back to live with their parents.

As for the apparent hypocrisy involved in Mr. Savoie's arrest, it is only hypocrisy if one assumes that the law is intended to function as a well-defined, consistently applied set of rules by which citizens and visitors alike can know in advance and act accordingly. Yet law also serves as one of the mediums through which Japan's famous bureaucracies preserve and enhance their authority. From this standpoint, whether the law is applied logically or consistently is entirely secondary to whether it provides an excuse for a particular group of bureaucrats to act (or not) — it just needs to be in their interests to do so.

Thus, the fact that police have recently started to arrest parents like Mr. Savoie despite the Japanese penal code remaining unchanged may simply reflect the police having decided that parental abduction is a problem they should do something about either in general, or in specific cases. Having made this decision, what the law actually says or is intended to address doesn't really matter, so long as there is a vaguely drafted statute they can point to as justification.

A similar dynamic plays out in Japanese courts. In custody disputes, courts purport to apply a "best interests of the child" standard. Fortunately for the courts, this standard remains undefined by either statute or clearly announced judicial rules, meaning that judges are free to resolve cases in whatever way is most convenient for the court — which more often than not is the status quo, which they have little power to change. Thus, the real standard being applied is probably what is in the best interests of the court.

A similarly bureaucratic approach may also explain the apparent willingness of Japanese courts to cooperate with other bureaucracies such as police and prosecutors by ratifying seemingly novel applications of criminal law arrests and prosecutions that seem to stretch the law. In another parental abduction case earlier this decade a Dutch man was arrested for trying to leave Japan with his daughter. He was prosecuted for violating an obscure human trafficking statute and duly convicted. In rejecting his appeal, Japan's Supreme Court noted that there is a high degree of unlawfulness in taking a child whose life is established in one country to another country, even if the person doing so is one of that child's parents. Apparently, neither this statute nor this logic has ever been applied to any of the scores of cases of abduction to Japan.

My own view is that as a matter of law, Japan could start returning abducted children tomorrow without having signed the Hague Convention — just as children who have been abducted to countries like the United States or England have been returned to Japan notwithstanding the country's nonsignatory status. Mr. Savoie's case clearly demonstrates that it is not actually necessary to waste time and money in futile family court proceedings to get your child back: The police will do it for you if it is in their interests to arrest the abducting parent. The converse is that they may not do anything if it is not, and this is also why it is conceivable that Japan could sign the Hague Convention and immediately appear on the U.S. State 

Department's list of noncompliant treaty partners.

Whatever the law says, it is very hard to imagine it being in the interests of the police and prosecutors to be seen taking crying half-Japanese children away from distraught Japanese mothers.

This is why the media attention is so important on this issue. Because law in Japan tends to serve the bureaucrats first and the people second, legislation and litigation may not lead to solutions if the bureaucrats are part of the problem. Thus, it will likely be criticism — relentless pressure and attention from both domestic and foreign sources — that will probably carry the day in Japan shedding its shameful status as an abduction haven. If so, it will be because the criticism risks damaging the authority of the bureaucrats by making them look bad.

This is sad, because appeals to law, reason and parental love should have worked a long time ago.

Every husband a potential 'abuser'

Claims of 'violence' offer catch-all way to cut fathers from kids' lives

 

Before the Christopher Savoie case hit the news, Japanese commentators on the Hague Convention on international parental child abduction had already begun fretting over the completely unsubstantiated assertion that "almost all" instances of children being brought to Japan involve a Japanese mother fleeing from an abusive foreign father. Would Japan signing the convention result in them being sent back? they asked. This is not an unreasonable concern, though I doubt any of these commentators would go so far as to approve of foreign parents taking children out of Japan to escape an abusive Japanese spouse.

Most advanced nations have fairly extensive legal regimes designed to help prevent domestic violence and protect its victims. For this reason, while the Hague Convention contains an exception that says a child does not have to be returned if "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," the prevailing view has been that this means children should not be returned to war zones, famine conditions or other extremely harmful environments — claims of domestic violence, however, should be left up to the legal system of the country from which the child was abducted, just like child custody issues.

It is debatable, of course, whether Japan or any other country deals with domestic violence adequately. There is also a growing view (including among some U.S. courts dealing with Hague cases) that the convention does not adequately provide for situations where a parent is seeking to protect herself or her children from domestic violence. Although the convention remains silent on the issue, a recent Yomiuri editorial calling for "careful consideration" of cases involving domestic violence suggests that Japan might simply apply the existing exceptions to prevent the return of children even if it does join.

The problem is that Japanese courts and other governmental agencies appear to deal with domestic violence by applying two simple rules of thumb: that domestic violence is only committed by men against women and children, and that almost any conduct (by men) constitutes domestic violence.

I have met Japanese and foreign men alike who are shocked to find themselves accused of domestic violence in divorce or child custody proceedings, only to discover that the "violence" refers to a past argument in which he raised his voice. This is because, as with abduction itself, domestic violence has a very fuzzy definition. A 2001 article by a Japanese family court investigator is instructive: It lists a number of categories of behavior that she considers to be violence, including physical violence, verbal violence, psychological violence (which can include being excessively quiet and non-responsive!), sexual violence and "educational violence." With the notion of "violence" now encompassing a variety of types of conduct that do not involve physical strength, one would expect it to apply increasingly to women also, but no, I have never seen or heard of a single case where a wife or mother has been found to have committed even "verbal violence."

Based on conversations with Japanese lawyers and the cases I have heard of, it appears relatively easy for a woman to get a restraining order against her husband — one that prevents him from even seeing his children for up to six months — and other dispositions that prevent him from getting information about his own children from schools and government agencies, based on an assertion of violence. Combine this with the all- encompassing definition of "violence" and the fact that there seem to be few (if any) constitutional or other substantive rights in the parent-child relationship in Japan, and that relationship can be terminated with shocking ease if the right buttons are pushed.

This is not to say that domestic violence is not a problem in Japan, or that men do not perpetrate it against women (I have heard some horrific stories on this subject in Japan also). Restraining orders and the withholding of information are vital protections in cases where the safety of adult or child victims of abuse is at risk. But at the same time, the system seems wide open to abuse, particularly in Japan's "winner takes all" regime of sole custody after divorce. Furthermore, as a number of studies in other countries have shown, domestic violence is a complex issue and involves abuse by both men and women in all sorts of relationships. Child abuse is similarly complex, with the Japanese government's own statistics showing that mothers are the primary (or sole) abuser in the majority of cases (though this of course may simply reflect that fact that mothers may also be the sole caregiver or otherwise spend much more time with the children).

While abuse may be a significant factor in some cases of abductions to Japan, the only one that immediately springs to my mind is that of Samuel Lui. According to his account, his child was brought to Japan 10 years ago by his Japanese wife after she had been arrested on charges of spousal abuse (although his California custody order was recognized in Japan all the way up to the Supreme Court, he was of course not able to get his child back). Regardless of how often it is actually the case, however, "Japanese women fleeing abusive foreign men" is probably a usefully simplistic way to both frame the issue on the Japanese side of the debate and set the stage for implementing the convention in a way that spares most judges the need to ever send children back.

Similarly, when confronting complex reality, Japanese courts seem to prefer simplistic rules that minimize the need to take responsibility for exercising judgment in the resolution of a case. Thus, "domestic violence is committed by men against women" is probably a useful rule of thumb in the same way as "always give custody to the mother" is. No judge or other court bureaucrat is likely to ever be blamed for following either of these rules. Of course, both would seem to be problematic assumptions in light of constitutional and statutory requirements mandating gender equality in family law, but the use of simplistic rules to facilitate efficient, blame-free case resolution probably trumps such considerations.

Furthermore, simply assuming all assertions of abuse (by men) to be true is probably much easier than actually dealing with the difficult evidentiary issues such cases can present. For example, over two years ago a foreign father lost custody of his child to his deceased Japanese wife's parents based on allegations of child abuse. A central piece of evidence in his trial was a statement supposedly made by his 4-year-old daughter describing the alleged abuse. At the time, however, the only person who supposedly heard this statement was the grandmother who was seeking custody. The local child welfare agency that acted on her report did not even meet the child until after they had taken her into protective custody (which involved simply leaving her with the grandparents) and litigation to remove the father's custody rights had begun. Even then, according to the father, they only conducted an interview because he demanded they do so, expecting it would show the allegations to be false.

Indeed, the child did not repeat the alleged statement to the agency investigator, who in any case refrained from asking too many questions "in the best interests of the child." Perhaps feeling some pressure to find the child "damaged" in some way, the investigator did note that the 4-year-old child "had a short attention span" and "did not respond well to long questions," suggesting a depressing lack of understanding of children on the part of an agency charged with their welfare!

A court investigator subsequently met with the agency, but essentially relayed back to the judge the time line of the case and the original alleged statement reported by the grandmother. The fact that this was by now double or triple hearsay supposedly spoken by a 4-year-old child neither he nor the investigator had even met, and reported by a party with an obvious motive to lie, did not stop the judge from declaring the child's words to be "accurate" and stripping the father of custody (the case is currently on appeal).

That all contact with a child can be cut off based on a barely substantiated assertion of abuse is rather horrifying from the standpoint of a parent. But it makes sense from the standpoint of the courts and other bureaucrats. Once abuse has been asserted, who wants to be responsible for a child or mother being killed or maimed because the assertion was ignored? It is probably the same dynamic that explains Japan's high conviction rate — a good percentage of the people arrested for crimes or accused of domestic abuse probably are actually guilty, so the safest thing to do is treat all of them as guilty. Unfortunately, in child custody litigation this mentality is ripe for abuse, which nobody seems interested in addressing (I once asked the head of a child welfare agency what procedures they had to prevent spurious allegations of abuse from being used to win child custody cases — his answer, essentially, was "none").

Thus, if Japan does sign the Hague Convention, the notion that "almost all cases involve Japanese women fleeing abusive foreign men" may prove to be a self-fulfilling supposition. Mothers bringing children back to Japan will know in advance (or afterward when getting legal advice in Japan) that asserting abuse will make it more likely that the children will not be sent back. Even though most women in this situation will probably not go so far as to lie about abuse, they will not have to, since the concept is now so broadly and subjectively defined that it probably be truthfully asserted (by women) in the context of almost any marriage that turns into a hostile divorce. Judges, lacking any real power to actually send children back, may find it easier to just use the alleged abuse as an excuse for ratifying the status quo.

Japan signing the Hague will be a step forward even if its immediate impact is nothing more than an expression of intent. Perhaps Japan will even take steps to amend its domestic laws to provide greater remedies for enforcement. Perhaps my cynicism will prove unwarranted. But I am cynical because my approach to this issue is not based on what Japanese law does or doesn't say, but on what is in it for the judges and other bureaucrats. From that standpoint, if Japan does sign the Hague, the question in my mind will be, "Who wants to be the first judge in Japan to send a child back?" Add "when there are allegations of abuse" to that question and perhaps others will find themselves becoming cynical also.

Changes must go beyond Hague abduction treaty

Signing convention won't alter outcomes for many left-behind parents 

Christopher Savoie's recent arrest for "kidnapping" his own children in Fukuoka after they had been brought to Japan by his ex-wife generated not only much-needed media attention on Japan's abduction problem, but some unhelpful static as well. For example, some non-Japanese have claimed that Mr. Savoie's arrest reflects some sort of racism on the part of the Japanese police, though Japanese fathers have been arrested for doing basically the same thing. From the Japanese side there have been allegations that he "tricked" his former wife to the U.S., as well as nonsense about him being a bigamist because he remarried without registering his divorce in Japan.

 Commentators on both sides have tended to converge, however, on one notion — that the Savoie case is somehow related to Japan not being a party to the Hague Convention on international child abduction. This notion is probably mistaken, as I will try to explain.

The treaty's formal title is the Hague Convention on the Civil Aspects of International Child Abduction. As this suggests, the convention is about the use of expedited civil rather than criminal proceedings to return children who have been abducted across borders. Thus, even if Japan had been a party to the convention, it would not have required Ms. Savoie to be arrested for bringing them here in violation of a U.S. court order. Many signatory nations also have domestic laws criminalizing parental child abduction, but this is not part of the convention.

Although Mr. Savoie's arrest shows that Japan's penal code is already up to the task, under the Hague the starting point in Japan for a father whose children are wrongfully brought to Japan will probably not be much different from what it is now — civil court. Although the convention should require Japanese authorities to help find the children, he will probably still have to go to a family or other civil court once they are located. Under the convention, Japanese courts would probably have to hear his case on an expedited basis, recognize his foreign custody (or visitation) order, and refrain from conducting a new determination of the best interests of the child. This last point is key, as currently Japanese judges tend to determine that children brought from foreign countries have adjusted to their new environments almost immediately, and that a change would not be in their best interests. The convention would require judges to limit their inquiry to whether the child was brought to or kept in Japan "wrongfully." If the removal/retention is wrongful, the child is supposed to be sent back.

This is where the rubber meets the road, however, and what I think is the real problem at the core of the Savoie case: Japanese courts have almost no coercive powers when a case involves children. This is a problem that foreign observers may have trouble understanding, particularly if they are in the U.S., Canada or other countries where police or judicial marshals participate in the enforcement of civil court orders, and judges have broad powers to punish, even imprison recalcitrant parents.

This is not the case in Japanese courts, particularly family courts. The first thing that may happen to a parent who violates a court order in a custody or visitation dispute may be nothing more than someone from the court calling up to see if they have a good reason, and recommending compliance if they do not. Further intransigence may result in a non-penal fine, but this may have a limited impact on a party having no money, or if the fine just rebounds on the children (I know a Japanese father who had a fine imposed on his ex-wife for interfering with his visitation; she paid and, despite having adequate means, gave the children nearly-expired, cut-price food for dinner, telling them it was because their father had impoverished them).

The Japanese statute covering the enforcement of civil judgments does not contain any provisions regarding how to deal with children. Judges are left analogizing younger children to movable property, for which there is a statutory provision allowing for the direct enforcement of the judgment (i.e., physically taking possession) by a bailiff. There is a somewhat surreal academic debate regarding how young a child must be in order for a judge to treat them as a piece of property, but it is generally understood that children older than a certain age (seven or eight is one range given) are deemed capable of forming their own intent and cannot be taken by a bailiff against their will. Even if a judge does order the handover of a child, how (and if) to proceed with the enforcement is left to the bailiff (who, although an officer of the court, lacks police powers).

A recent article on the subject of enforcing child handover orders authored by a judge and published in the Japanese Supreme Court's family court journal illustrates the problem in Japan. It contains summaries of a number of enforcement situations, including one that goes roughly like this: Father abducts his four-year-old child from mother. Court orders father to return child to Mother. Bailiff goes to the father's residence to enforce the order directly (the child being young enough for the movable property analogy to work). Mother has previously warned the court that father is a violent sort, so the police are requested to accompany the bailiff. Father clutches child to his chest, saying "Over my dead body." The bailiff asks the child, "Do you want to come with me?" Child says "No." With this, the enforcement effort ends in failure.

This case illustrates what has to me always been a disturbing aspect of how cases involving children often seem to get resolved in Japan — by an adult in a position of authority letting even a very young child directly or indirectly make the final decision. Perhaps judges and other court personnel take comfort in having "respected the wishes of the child," but it sometimes comes across as a blatant abdication of responsibility. Respecting the wishes of a child is probably also often a convenient excuse for ratifying the status quo, since the courts often can do little to change it. If all it takes to frustrate a court order in a domestic case is to get a four-year-old child to say "no," then the same technique may prove effective in Hague cases also. The convention contains an exception stating that children old enough to express a contrary preference do not have to be returned.

Japan's habeas corpus statute provides another remedy, and although it is clearly drafted with unlawful police detentions in mind, it is now used mostly in child custody cases against parents who are "detaining" their own children. It is probably also the only remedy available to civil courts in such cases where there is a possibility of criminal sanctions for noncompliance. The Supreme Court, however, has indicated that absent exceptional circumstances, habeas corpus should not be used when the child is being detained by a parent (i.e. most cases).

In light of the above, I think that at the heart of the Savoie case is not "culture," not the Hague Convention and not racial discrimination, but an issue which affects Japanese and foreign parents alike — the dismal prospects for protecting your relationship with your children through litigation even if you win. Without deeper changes in the legal system, the Hague Convention may not do anything to change this state of affairs, since it leaves the specific remedies for abduction to the domestic laws of signatory states. Even if Japan does sign the Hague, it could end up like Germany, which, although a party to the treaty, was named in the U.S. State Department's 2008 report on the convention as having compliance issues due to "judicial performance" — more specifically the lack of enforcement mechanisms.

But remedies — getting the child back — are probably the only thing that left-behind parents care about. Most parents who love their children and take time to reflect on the matter probably do not want the abducting parent to be convicted or punished for a crime. Indeed, the issuance of an arrest warrant in the country from which the child is abducted can be counterproductive in the long run if it prevents the abducting parent traveling with the children years later, after everyone has had a chance to calm down.

For most left-behind parents, the real significance of criminalizing parental child abduction, in addition to whatever deterrent effect it might have, is probably not the ability to punish the abducting parent, but to have the child summarily returned by the police as part of the arrest process (and without the child being forced to make a decision). Most parents are unlikely to care if the case is not pursued after their children are returned, as effectively happened in the Savoie case.

However, it is the seemingly arbitrary availability of this remedy in Japan where claims of bias may be closer to the mark. But it is more likely gender bias rather than discrimination against foreigners. Quite simply put, when it comes to children, the Japanese legal system seems to cut mothers a lot more slack than it does fathers.

Not showing at a family court near you (Japan)

The DVD that the Supreme Court doesn't seem to want parents to see

 

I have seen the secret Japanese video. No, not the one where you die within a week of watching it, the other one — the one about how traumatic divorce and parental separation are for children.

Titled "Kodomo no Iru Fufu ga Hanarete Kurasu Toki ni Kangaenakereba Naranai Koto" ("What Couples with Children

Must Think About When They Live Apart"), it is a short educational DVD that dramatizes a deteriorating marriage and the effect it has on the couple's elementary school-age daughter.

The DVD's message is quite simple: Parental separation is extremely hard on children, and they deal with it in different ways, ways parents may not understand or appreciate, particularly if they themselves are deep in the emotional swamp of divorce.

The little girl in the drama tries various strategies to hold the family together, encouraging activities involving both parents, taking on more household tasks, and so forth — thinking that if she tries hard enough, things will get better. Of course she blames herself for what is happening, and is shown lying alone in bed, clinging to her teddy bear, crying and promising to be a good girl. Yet, while trying hard to be good at home, at school she becomes sullen and withdrawn, and fights with her classmates over trivial things.

The DVD's commentary explains that children whose parents are separating are almost paralyzed by fear: fear of losing a parent, fear of the changes that are happening, and fear of an uncertain future. Divorcing parents often make this worse not just by being preoccupied with their own fear, anger and sadness, but by subtly or overtly pressuring their children to choose between the two people they love most, whether it be over who to live with after separation, or through a more subtle set of choices between parents seeking emotional allies in the battle into which divorces often degenerate.

In terms of content, there is not much about the DVD that is surprising, at least to someone familiar with Western notions of divorce, or to loving parents in any culture who are able to think of their children as separate human beings. No, what is surprising about this DVD in the Japanese context is that it exists at all, since the effect that divorce has on the tens of thousands of children who experience it every year in Japan is a subject that seems to have been almost completely ignored by officialdom, educators and the mental health community alike.

An Amazon search done a few years ago would turn up virtually no works by Japanese authors on the subject; such publications as were available were more likely to be translations of Western works. Clinical psychologist and professor Kazuyo Tanase is one of the few Japanese scholars active in this area, and has published — in February — what is probably the first book for general readers in Japan about the psychological impact of divorce on children, "Rikon de Kowarete Iku Kodomo tachi" ("Children Who Are Broken by Divorce," Kobunsha Shinsho).

In this respect, Japan may have some catching up to do, though some might argue that divorce and child custody in Japan are different for cultural reasons. Yet one of the other surprising things about the DVD is that it is remarkably free of any sort of cultural baggage (other than the absence of joint custody as an option, which is more of a legal issue). Its portrayal of how divorce negatively affects children and advice on how to minimize this impact would be readily recognized and accepted in most other countries and cultures. At heart, the issues involve a child's feelings of fear, sadness and loss — feelings that are likely to be universal.

Given Japan's continuing status as a haven for parental child abduction and the seemingly hopeless prospects of parents seeking to protect or at least cushion their children from the loss of contact with one parent through the country's family courts (where visitation awards of "six hours per year" or even "three photographs a year" are still not unusual), some parents might rightfully demand that this DVD be required viewing for Japanese judges. However, such a demand would be misguided because — ha ha — it was actually made by the Supreme Court of Japan. Paradoxically, this might explain why it seems to get so little air time in actual court proceedings.

Reportedly distributed to family courts by the Supreme Court administration in 2006, the DVD predates most native works on the subject of children and divorce yet remains a little-known resource, still shrouded in mystery almost four years later. Given that by its title it is directed at all separating parents, the court system's official Web site would seem to be the ideal way to make its contents as broadly accessible as possible. Since 90 percent of Japanese divorces are consensual, that would make it available to the large number of couples who never set foot in a courthouse when splitting up. Yet, a search of the DVD's name combined with the court system's official domain suffix (courts.go.jp) turns up only two immediate hits: links to notes of meetings of Family Court Committees (panels of citizens that offer feedback to the family courts) in Toyama and Kofu at which the DVD is discussed. The official court system Web site is free of any references to this educational tool; for most practical purposes, it might just as well never have been made.

Some courts have reportedly even denied that such a video exists in response to inquiries. Others are apparently reluctant to make it widely available. I recently met a Japanese lawyer whose practice includes family law who was shocked to learn that such a thing exists.

As far as I have been able to ascertain, the Supreme Court intended the DVD to be an educational resource that family courts could show to parents undergoing divorce mediation and to help with visitation. In fact, the DVD includes a separate section on what parents need to do to make visitation work. Here again, there is nothing particularly surprising about the contents: Parents should be considerate of children in the course of conducting visitation, should not use children as a medium for conveying or extracting information to or about the other parent, and so forth. Yet, viewed in the context of how family courts work, the DVD seems to be intended for a category of parent that doesn't exist — one who is stubborn enough to end up in family court yet can still be convinced to change their mind by a DVD. Perhaps this is why despite having been made with the best of intentions by judicial administrators, many individual courts may not be eager to use it.

Here it is worth noting something that many parents may find confusing about divorce mediation in Japan: Despite being required by law, taking place inside a courthouse and being overseen by judges and other people appointed by the court system, family court mediation is technically considered to be a form of "out of court" dispute resolution, rather than a litigation proceeding. This means that the mediators are not in a position to force a party to do anything, let alone watch a DVD, even if the party is a parent trying to alienate their child from the other parent. Furthermore, a parent engaged in such behavior is unlikely to act differently even if they did watch it.

Thus, the limited use of the DVD may simply reflect what I think is a flaw underlying family court divorce mediation in general: Since the people who can talk through their problems have already been filtered out of the system through cooperative divorces, expecting one or both of those parents who do end up in court to act reasonably may be naive. Furthermore, when one of the parties is expecting the court to act like a court — by say, making it possible for them to see their own children — the mediation requirement may even be harmful, since it often entails a prolonged period where the court is involved yet does not seem to be doing anything "court-like," potentially resulting in tremendous anger and disappointment on the part of parents who spend months of time in mediation yet end up losing contact with their children anyways.

In this context, it is easy to see why some of the well-meaning people who run Japan's family courts might want to keep the DVD under wraps. If uncooperative parents can't be made to watch it and won't act properly even if they do, there is probably little benefit for the courts to advertise an inconvenient truth: that as an institution they know exactly what divorce does to children, and that it is the same type of emotional harm suffered by children in other countries and other cultures.

Furthermore, the courts risk being shown to be culpable bystanders at best, active facilitators at worst in the cause of this harm. Much of the behavior the DVD tells parents is bad for their children is behavior that courts end up ratifying in order to declare a child custody case "resolved" — in the best interests of the child.

For example, Japanese family court "experts" routinely conduct investigations that involve asking children to choose a parent (they are not likely to characterize it as such, of course, but rather as "seeing how the child feels," though whether children understand this semantic distinction is questionable). How can they keep doing so if everyone has seen a DVD telling parents such behaviors should be avoided? How can a family court judge continue to award "three photographs a year" in lieu of actual visitation if the noncustodial parent can throw the Supreme Court's own educational materials back in her face? The DVD is thus a double-edged sword, one that could be used by parents to tell judges what they should be doing, when judges probably prefer the flow of directives to remain one-way and in the other direction.

Perhaps the knowledge possessed by at least a part of the judiciary that is reflected in the DVD (and in materials I have received from the courts in response to related information-disclosure requests) has not yet been properly disseminated throughout the family court system. Perhaps a Japanese "consensus" has yet to develop around how this knowledge should be converted into judicial action. Or maybe family court judges do not care enough to do more, or feel that responsibility for resolving the problem lies elsewhere, with parents, the Diet or some other sector of government.

Whatever the reason, the DVD and the knowledge it contains makes what happens to many children in Japanese family courts seem somehow worse than if the results were based on ignorance alone.

No need to know the law, but you must obey it (Japan family law)

Colin P.A. Jones tells us why it's hard to get clear answers when dealing with Japan's legal system

A few months ago I met with some Western diplomats who were looking for information about Japanese law — in particular, an answer to the question, "Is parental child abduction a crime?" As international child abduction has become an increasingly sore point between Japan and other countries, foreign envoys have been making concerted efforts to understand the issue from the Japanese side. Having been told repeatedly by their Japanese counterparts that it is not a crime, some diplomats may be confused by recent cases of non-Japanese parents being arrested, even convicted for "kidnapping" their own children. I don't think I helped much, since my contribution was something along the lines of "Well, it probably depends on whether the authorities need it to be a crime."

Of course, the very question "Is x a crime?" reflects a fairly Western view of the law as a well-defined set of rules, the parameters of which people can know in advance in order to conduct themselves accordingly. However, there is a Confucian saying that is sometimes interpreted as "The people do not need to know the law, but they should be made to obey it." This adage was a watchword of the Tokugawa Shogunate, whose philosophy of government was based in part on neo-Confucian principles.

It is also a saying that could provide some insights into why it sometimes seems difficult to get a clear answer about what exactly the law is in modern Japan. I am not suggesting that Japanese police and prosecutors have Confucian platitudes hanging framed over their desks, but knowing the law is a source of power. Being able to say what the law means is an even greater one, particularly if you can do so without being challenged. In a way, clearly defined criminal laws bind authority as much as they bind the people, by limiting the situations in which authorities can act. Since law enforcement in Japan often seems directed primarily at "keeping the peace," laws that are flexible are more likely to serve this goal.

For example, on the subject of abduction of a minor, Article 224 of Japan's Penal Code says simply that: "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." Article 226, a human trafficking statute that has been used to convict foreigners for abducting their own children, just says: "A person who kidnaps another by force or enticement for the purpose of transporting another from one country to another country shall be punished by imprisonment with work for a definite term of not less than 2 years."

Since neither of these is very specific, an American lawyer would probably try to learn how the terms "kidnap," "force" and "enticement" had been interpreted in prior cases. However, in Japan there is a significant hurdle to doing so: Except for those cases published in official court reporter volumes or otherwise circulated, the judgments and other records of criminal cases are by law a type of state secret, maintained by the prosecutors (not the courts!) and unavailable to the public. "Protection of privacy" is the given reason, but it also has the effect of making it very difficult for scholars or other legal system outsiders to understand the criminal law with greater specificity. 

But perhaps greater specificity is not needed, at least from the standpoint of law enforcement. Their perspective may be not so much "Was it a crime?" as "Was the peace disturbed?" If it is a case of Dad grabbing his kids on their way home from school, the answer is likely to be yes. If it is Mom taking the kids back to live with obachan, the answer is almost certainly no. The American lawyer might argue that from the standpoint of the real victim (the children whom the statutes are presumably intended to protect) the result may not be very different in the long run. But that would miss the perspective of the men with badges and guns, who probably have nothing to gain from arresting moms in such cases.

F urthermore, even if moms were guilty of a crime, under Article 248 of the Code of Criminal Procedure prosecutors have almost unlimited discretion not to prosecute someone based on their age, character or circumstances. This discretion is only limited by Japan's system of prosecutorial review commissions, which can require that a decision not to prosecute be reconsidered (as recently happened in the ongoing funding scandal involving Democratic Party of Japan honcho Ichiro Ozawa).

Japan, like other countries, has any number of laws that are unknown, unenforced or otherwise subverted. For example, pedestrians are supposed to walk on the right side of the road on streets if there is no sidewalk, and riding a bicycle while using an umbrella is illegal. Pachinko is a form of gambling (illegal), Tokyo's Kabukicho and other night spots are full of establishments where sex can be bought for money (illegal), and virtually no new love hotels have been built since a law regulating them was passed in the 1980s — those newer establishments that have (I hear) hourly room rates and rental maid costumes are "business hotels."

The authorities and the people alike can probably live with this state of affairs if it preserves some sort of order. Yet it creates an environment in which people may habitually engage in behavior they think is perfectly normal (because everyone else is doing it) but which is actually a crime, for which they can be arrested and prosecuted if the authorities need a reason to do so.

Ever had a beer then hopped on your bicycle? You are drunk driving — a criminal offense. "Everyone's doing it" is unlikely to be a defense, particularly if it leads to something else — a fight, an accident or some other disturbance of the peace (such as defeating the LDP as governing party and threatening to ax senior bureaucrats, as some might say in the case of Ozawa). What is a fair interpretation of the law is irrelevant once the issue becomes one of you vs. authority, because authority must win.

Foreign visitors to Japan often comment on how polite the Japanese people are, but little do they know that it is actually against the law to be rude. Under Article 231 of the Penal Code it is a crime to "insult another person in public." It would be tempting to dismiss this as a quaint remnant of the Code's Meiji roots (it was enacted in 1907 and written in classical Japanese until 1995). However, several years ago a man was arrested for calling a woman "fat" in a bar. He was also detained for 29 days for this infraction. Given that Japan's Supreme Court has recently held that liability for criminal defamation may arise from anything posted on the Internet, Japanese people could conceivably soon become famous for being polite online too.

Examples of seemingly strained applications of criminal statutes abound. There is the man who was prosecuted for "dangerous driving resulting in death" when two high school cyclists plowed into his illegally parked, unoccupied car; or the university researcher who was prosecuted for "assisting intellectual property infringement" by creating "Winny," a popular file-sharing program. Another man was arrested for trademark infringement for creating a T-shirt design featuring a man holding a gun to a silhouette of the National Police Agency mascot. And another was arrested and detained for developing image processing software which, since it could be used to remove the mosaic used to protect viewers from the sight of genitalia, was deemed to be "distribution of obscene materials." And perhaps the most recent case in the news was that of the low-level public servant prosecuted for distributing Communist Party literature in his own neighborhood during his free time (and you thought the Cold War ended 20 years ago?). 

A common theme in most of the above cases is that police or prosecutors may have had an institutional reason for wanting to make an arrest. The man prosecuted for dangerously driving a car he was not even in had parked in an area where the police had been making a show of enforcing parking regulations. The man arrested for calling someone "fat" was a local politician, so who knows what issues he might have had with the local constabulary. A security hole in the Winny software resulted in several high-profile leaks of information from police and other government computers. And since a total of 170 police officers reportedly spent a month spying on the public servant putting copies of Akahata (Red Flag) in peoples' mailboxes, he probably had to be prosecuted for something just so the entire effort didn't end up being a complete waste of time and taxpayer money.

It is here that the role of criminal law in Japanese society can take a turn down a darker path: when it is used primarily to serve the interests of the authorities rather than the public good. Take the case of Tamaki Mitsui, a senior prosecutor who was arrested in 2002 for a trivial tax violation and for exchanging information with a Yakuza boss at an expensive dinner — the type of activity that is probably part of his job rather than a crime. Not coincidentally, the day he was arrested he was scheduled to give a TV interview regarding prosecutorial slush funds, a story he had already started to leak to the press. His arrest and the trivial grounds on which it was based were widely regarded as being a shabby effort by the prosecutors to protect their public image.

That law enforcement officials use the law to their own advantage — interpreted creatively if necessary — is hardly unique to Japan. Where Japan may differ from other countries, however, is that the legal system seems to lack institutions that act as a significant check on such usage. In the United States, for example, federal prosecutors have to convince a grand jury before they can indict anybody. The trial jury system in the United States and other common-law countries provides another opportunity for the citizenry to reject an unreasonable application of the law, or even an unreasonable law itself. In contrast, Japan's prosecutorial review commissions only work in one direction — they cannot stop a prosecution. As for the country's new lay judge system, almost none of the cases discussed above would be serious enough to be eligible for trial by lay judges. 

As for the courts themselves, Japan's famously high conviction rate — above 99 percent — is derived in part from judges ratifying virtually all prosecutorial decisions. Almost all of the cases discussed above resulted in guilty verdicts, at least at the initial trial. The insult conviction was ratified by the Supreme Court in 2006. Mitsui, the prosecutor, was found guilty and sentenced to actual prison time rather than the suspended sentence usually meted out for minor offenses. And while the developer of Winny and the public servant were both acquitted on appeal, by that time they had already arguably suffered far out of proportion to the gravity of their supposed crimes.

Thus, what the law actually is seems to be decided by anonymous bureaucrats rather than in the courts or through public debate. This means the law can suddenly change — not because of a court case or a statutory amendment, but because faceless officials decided it should be so.

For example, long-term Japan residents may remember the day when pubic hair suddenly "became legal." Until 1991 any photographs showing pubic hair were deemed criminally obscene (though the Penal Code is not that specific). Then, with the publication of two "art books" by the famous photographer Kishin Shinoyama featuring nude shots of a famous actress and then-teen idol Rie Miyazawa, pubic hair was suddenly OK. (Miyazawa may have been 17 when her pictures were taken; if so, anyone who has a copy of her top-selling nudie book could be in possession of child pornography.) A boom in "hair nude" photography followed, and pubic hair has been "legal" ever since.

While pubic hair is OK now, graphic depictions of genitalia may still be deemed obscene, even in an artistic context. This was discovered when a book of Robert Mapplethorpe photos was confiscated by Japanese customs in 1999 because it contained pictures of male genitals. The book's owner objected — the book was published in Japan, he was an employee of the publisher of the Japanese edition and had taken it on a business trip to the United States. It was also available in Japanese bookshops as well as the National Diet Library. Having staked its authority on banning its "import," however, customs bureaucrats stood their ground. While losing at the initial trial, on appeal they were able to get the Tokyo High Court to agree that the book was obscene. The Supreme Court finally set things right by overturning the High Court, though it did so in 2008, by which time nobody may have cared any more. Taking pictures of naked women in a cemetery is also still a no-no, however, as Shinoyama found out last month when the Tokyo Summary Court fined him for doing just that back in 2008. 

While it easy to be critical, other countries arguably have something to learn from Japan's approach to law enforcement and its famously low rate of reported crime. One factor in this equation may be the respect the people have for the authorities that wield the law, as opposed to the black letter of the law itself. At the same time, however, according to Montesquieu, "liberty is the right to do what the law permits." What does it mean, then, when what the law permits — whether it is taking your own children somewhere, rudeness or anything else — is unclear?

Behind the facade of family law

Having been reunited with his daughter, Richard Cory faces a tougher battle for custody of his sons

By RICHARD CORY

Last in a two-part series

 

In mid-April, 12-year-old Michiko Watanabe, as she was now being called, found herself in a precarious situation. Earlier, her mother had clearly let her child know that she would no longer consider herself Michiko's mother if Michiko ever attempted to return to her father. In fact, her mother said that she would never even speak to her again in such a case.

On Day 20 of Michiko's abduction, her mother announced that she needed to step out of the apartment for a few minutes. Shortly after her mother walked out the door, Michiko took a ¥100 coin she had hidden, dashed out of the apartment to a public phone she had noticed a few days earlier down the street, frantically searched through the Yellow Pages looking for her father's business number (he carries no cell phone), phoned her home instead, and left a message containing two very important statements: "I want to come home" and "Come and pick us up."

The very next day, after receiving no-nonsense warnings from my lawyer and a U.S. Embassy representative about the great danger involved in this rescue attempt, and hearing that the judge and one of the family court investigators had expressed their concerns about an attempt turning violent, I planted myself on a relatively empty street corner near the school for two hours and pretended to be waiting for a ride — looking deep up and down the street whenever passing residents seemed too suspicious about this unknown foreigner standing on the corner in a business suit at midafternoon in an aging suburb on the outskirts of Tokyo.

Police drove by several times, the last time stopping with windows down right next to me at a red light. How did they respond? They looked over, said something to each other, and burst out laughing.

At 2:30 on this sunny Wednesday afternoon, uniformed students started to flood out of the school. Two teachers monitored the street, warning children to be aware of occasional traffic. One of these teachers even started to use more foreign words as my presence became more noticeable. A few minutes later, my daughter appeared at the school exit, beamed me a giant, wide-eyed smile, and the two of us simply walked away from an awful nightmare.

Minutes after returning home, my daughter phoned the school to tell them she would not be returning. The call reached comic proportions after she was transferred from one person to another over and over again and resultantly had to repeatedly explain that her name wasn't really Michiko Watanabe.

Immediately after my daughter's return, my lawyer phoned the police to update them on her whereabouts. Surprisingly, the police simply responded with, "Oh, she escaped" — interesting phrasing considering that you might not generally expect the welfare office to be participating in the detention of someone, thus making an "escape" necessary.

And after all that, you might think that we finally have a happy, fitting ending to one of these absurd abduction stories we often hear about in Japan.

Until you realize that Michiko Watanabe has two brothers, Alex and Dennis, soon to be aged 10 and 7 — two brothers who, as Michiko exited school, were with their mother in a locked apartment managed by the welfare office. These two brothers had also been renamed, the oldest from a very Western "Alex" to a very Japanese "Shoichi."

Immediately after Michiko's walk to freedom, these boys were returned to a shelter and renamed yet again.

In late March, on the second business day after learning the children had been abducted by their mother, I petitioned the family court for the immediate return of physical custody (kangoken) of the children. The earliest date a hearing could be scheduled was in mid-April, 18 days after the abduction. At that hearing, the judge assigned two family court investigators to interview the parents and the children separately.

My daughter and I were interviewed a few days later. Her session was about two hours long; mine was two and a half. Interestingly, in my session the investigators asked to hear only about a typical day at the house after my daughter had returned. In fact, when I turned to a typical day before the children had been taken, to demonstrate how active I was in raising them, the investigators immediately tried to cut me off.

A decision on custody was expected by the end of April (over a month after the abduction), but on the afternoon of April 28, right before the start of the Golden Week holidays, the children's mother filed a lengthy rebuttal.

In court on April 30, the judge informed us that she did not feel comfortable making a decision yet because a rebuttal had just come in and the boys had not yet been interviewed because they had been "busy" (even though they had been out of school in a shelter for the previous 15 days and their mother had been on a paid leave of absence from teaching throughout all this). Their mother then petitioned for physical custody of all the children, almost four months after I had filed for divorce and full legal custody (shinken inclusive of kangoken), and a new court date was set for the end of May, thus keeping the boys away from me for a second month.

At the May hearing, the judge questioned me for about an hour, and then the children's mother for about 45 minutes. The mother confirmed that she has been in a relationship with another man since 2007, has been seeking treatment at a mental clinic, and that she had been physically abusive toward her spouse and the children. She also complained that the 30 minutes of English reading that each of the boys did with their father nearly every day was having a negative impact on their Japanese schooling.

The judge then announced that the findings of the two family court investigators — who had interviewed officials from the school, Child Guidance Center, and the police, in addition to the children and parents — would be released in early June, and opinion letters could then be filed by both sides by the end of June (three months after the abduction), after which a decision would be made.

I then learned that the "interview" of the boys differed greatly from the two-hour private questioning of my daughter. The investigators instead paid a courtesy visit to the boys' new apartment, where the nearly-10-year-old remained in an adjacent room pacing back and forth, constantly watching the investigators. When one of the investigators finally approached him, she asked him in his mother's presence about his friends at a school he had attended for only three days over five weeks earlier, a school at which he was forced to use a different name and was told not to speak about his background.

So how many real friends do you think he made? How many would he even remember? Oddly, there is probably not any other topic that would generate less conversation. The investigator wrote that my son responded to that sole question with a frown, so she didn't feel it was appropriate to ask him any other questions.

At this point, you don't have to be a genius to realize what's going on here: Japan's family court is weaning these boys from their father and his side of the family, from their English, home, neighborhood, school and friends. And the system is obviously set up to allow this to occur. None of these people are in any hurry to return any children, and reports conducted by the family court investigators are biased more by subjects that are avoided than any that are actually addressed.

Sadly, it appears that in the end here in Japan, you only win custody of your children by actually physically taking custody of them. Japan's family law structure is that primitive.

And by simply making a domestic violence (DV) claim at a welfare office, you can receive tax-supported assistance in abducting and detaining your children, and hiding them — and yourself — from the other parent.

Look at my case (and what the judge wrote in her custody ruling in July). My wife had admitted to the following: 

• More than three years of ongoing adultery ("The reason for the breakup of the marriage was the respondent's adultery"); Giving large sums of money (¥7.7 million) to her lover to help him pay off his gambling debt ("Respondent lent a large sum of money to her colleague");

• Taking my children on dates to bet on horse racing; 

• Being currently on medication for various disorders ("Respondent became mentally ill and started seeing a doctor in or around January 2010 and worried about her insufficient communication with the children");

• Physically abusing her own spouse and children ("Respondent attacked petitioner . . . and used physical power that cannot be justified as discipline against the children").

Her own daughter fled from her after being abducted, and then testified against her. Moreover, my wife did not even petition for custody of the children until four months after I filed for divorce and custody. I even submitted a video showing my wife with not one of the bruises or injuries she claimed to have sustained the day before the video was taken. And we even had eyewitness testimony of her trying to injure herself. Could my case be any stronger?

Nevertheless, when the judge awarded me physical custody of my daughter, she also awarded physical custody of the boys to their mother. The reason: "There's no big problem (with the boys staying where they are)."

Based on such reasoning, you can bet the bank that this judge would have awarded custody of all three children to my wife had I not been able to rescue one. And the judge would probably have given me custody of them all had they all been able to get free.

Japan's family court is simply a facade designed to make an unevolved system appear civilized.

Let's not kid ourselves. In Japan, "possession of the children" trumps the "best interests of the children" every time, particularly when the "best interests of the children" are never even addressed. And when you have a country that is pouring great sums of money into a system that shuffles children off to hidden locations whenever a parent makes an unverified DV claim, the state, in essence, becomes complicit in the abduction of the children.

While in mediation at the courthouse a week after the ruling (four months after the abduction), I asked the judge about seeing my boys. Her response: "It's still too early for that." And then she made a sad face.

Many non-Japanese seem to think that Japan's eventual ratification of the Hague Convention on the Civil Aspects of International Child Abduction is going to be the be-all end-all that forces Japan to cease the culture of abduction poisoning this country's family law structure. Please. Open your eyes.

Abduction is a cultural abscess that is endemic in Japan, and as long as unverified DV remains a well-funded tunnel through which vulnerable and dependent youth can be spirited away, any attempt to cite the Hague convention to return a child can easily be thwarted by caressing Article 13 of it, which stipulates that children need not be returned if there is a risk it "would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."

Before Japan becomes party to the convention, foreigners in failing marriages here in Japan may have two options: Get your children out of the country, or watch your children get abducted within. After that convention is signed, there may be only one option.

In a 2002 U.S. Supreme Court case (In Re Stanford), Justice John Paul Stevens drew upon the words of the late Chief Justice Earl Warren to argue against cruel and unusual punishment by writing "(This) practice . . . is a relic of the past and is inconsistent with evolving standards of decency in a civilized society. We should put an end to this shameful practice."

Could the same not be said about Japan's active funding and support of the abduction of children to this day?

Child abduction is a practice that is indicative of a primitive, uncivilized society, yet a custom that continues to thrive in Japan within a protective bubble that needs to be popped and bleached clean.

Until change occurs, raising children in Japan is simply too great a risk.

Battling a broken system (Japan)

A left-behind father tells the story of his fight to find and win custody of his lost daughter

By RICHARD CORY

First in a two-part series

 

In July, Tokyo's family court granted me, an American, physical custody (kangoken) of my 13-year-old daughter exactly 120 days after she was abducted by my Japanese wife, a lifelong public servant employed as a teacher at a state school in Tokyo. This just may be the first time that Japan's family court has awarded a foreign father custody of a Japanese child after a successful abduction by the child's Japanese mother.

The times they are a-changin'. Or are they?

One day in March, just minutes after my daughter and I returned home from celebrating her graduation from elementary school that morning, her mother, from whom I had filed for divorce in January after 17 years of marriage, lured my daughter out of the house, shoved her into a taxi and took off for the local ward welfare office (fukushi jimusho), where her mother claimed domestic violence. A social worker met the taxi outside the office and gave the driver directions to a shelter, which was located in Shinjuku Ward within the Yamanote Line.

Life at the shelter was comfortable. The accommodations were sizable and modern, and included 20 private Japanese-style rooms. Some rooms had private baths, but most of the women used the facility's communal sento. Two of the 20 women present had noticeable bruising from physical abuse. Savory meals were made at the facility and served three times a day. Personal laundry was washed, dried and folded daily. Youngsters were given an hour of Japanese and math study through work sheets each weekday morning, followed by cakes, cookies and the like at around 3 p.m. And all this was provided at taxpayer expense for two weeks.

At the end of two weeks, mother and child were sent to an aging apartment adjacent to a welfare office on the outskirts of the opposite side of Tokyo. Here, rent is maintained at ¥10,000 a month under a government subsidy program, and residents can stay for up to three months.

The welfare office then encouraged the mother to unofficially change her and my daughter's first and last names, and the newly christened Michiko Watanabe was then enrolled in a school just steps from the apartment. The mother visited the school and asked the principal to help protect Michiko from her foreign father. And life was hunky-dory! Or at least that's the illusion the welfare office attempted to sell.

The family court then had to spend the next four months attempting to clean up the welfare office's mess, a tax-supported stench that stretched from one side of Tokyo to the other and continues to this very day.

In December 2009, shortly after I detailed my fears in this column (Zeit Gist, Nov. 3, 2009) about my wife's ongoing affair potentially resulting in me losing custody of my children, family life got even worse as she became increasingly physically abusive toward our children. In fact, the police visited my home after one incident in December and recommended that I take my daughter to the Child Guidance Center (jidosodanjo) so that we could determine how to best handle her mother's violent behavior. Over the next few months, my daughter was interviewed twice at the Child Guidance Center and a few times at her public elementary school.

Unfortunately, as we neared the abduction date, bias against her American father started to become evident. Exactly two weeks before her abduction, her female school principal met privately with my daughter, who summarized her principal's comments as follows: "Your mother might be violent, but we know she's a very nice mother on the inside. She will change one day. She's just stressed right now."

Two days before the abduction, the school principal and two child welfare officers met with my daughter in the principal's office, and just hours after returning home, my daughter reported the following exchange between her and one of the welfare officers, an older Japanese woman: "And then she said, 'Who are you going to choose?' And I said, 'Because Mama beats me, I want to go to Daddy's side. I'm going to choose Daddy.' Then she said, 'Your mother does all the stuff at home, like cooking and doing the clothes and stuff like that, so I think it would be better if you choose your mother.' "

What makes this "advice" even worse is that the assertion about the cooking and cleaning is based solely on the stereotypical Japanese family. I also can't help but wonder exactly why these "professionals" were so adamant about pressuring a child to reside with her abuser. Was it because the mother is female, like them? Japanese, like them? A public servant, like them? Or possibly a public school teacher, like the principal once was?

Just hours before this abduction, this principal is reported by my daughter's mother to have stepped even further into this mess by saying, "I think you're going to be able to get her."

Hours later, my wife was at the welfare office alleging domestic violence (DV) in a well-orchestrated maneuver to gain custody.

I did not know it at the time, but a person can just show up at the welfare office, declare DV and be immediately spirited away to a hidden shelter after a half-hour counseling session. Not a scintilla of evidence ever need be presented. No bruises, no evidence of threats, insults, intimidation, withholding of money — nothing! No need to ever contact the police. No need to ever involve the court.

Now, if a person does feel threatened in a relationship, and we in society desire to have a system that gives that person assistance in getting out of that relationship, then good for us. However, by allowing children into its shelters, Japan has created a system that assists in the parental abduction of these youths, without, as common sense would probably dictate, first confirming whether residing with the abducting parent is actually best for the children. It's a gigantic hole through the country's already-primitive family law structure.

Immediately after arriving at the shelter, my daughter announced that she was going to return home. As she began walking toward the exit, a shelter worker quickly jumped in front of her and spent the next 30 minutes physically pushing her deeper and deeper back into the building. Her mother told her, "We'll finish talking in a day, and you can then go home whenever you'd like." Once inside the private room, her mother beat her and became frustrated when leading questions — such as a pleasantly toned "Isn't this place nice?" — didn't result in positive comments for the recorder she was trying to hide behind her back.

My lawyer and I realized the trouble my daughter was most likely in, so we immediately visited the Child Guidance Center and insisted that they remove my daughter from the shelter. They said they would investigate.

Their investigation consisted of sending to the shelter two child welfare officers that my daughter had never met. The center manager said that this was intentional so that my daughter would not recognize them. The officers never talked to my daughter or her mother, which I was again told was intentional. And when I later asked if these two child welfare officers were informed of my daughter's attempt to return home, I was evasively told that the shelter workers and child welfare officers "had various conversations."

Two weeks later when the family court investigators showed up asking the very same questions, this manager ceased his stonewalling and started fessing up — yes, the child welfare officers had been informed that the shelter workers had physically prevented my daughter from leaving.

You can thus imagine how disturbing it was to hear how the Child Guidance Center responded to the U.S. Embassy representative, who had reviewed the numerous accounts of abuse penned by my dual-citizen daughter, and then quickly asked to visit her, a right guaranteed by Article 5 of the Vienna Convention on Consular Relations. The Child Guidance Center told the embassy that my daughter could phone or leave whenever she wanted, repeating this lie to my lawyer, knowing fully well that she was being prevented from leaving, and that facility residents are asked to surrender their cell phones upon entering.

Not knowing that we were being lied to, we then asked the center to inform my daughter of this right to phone or leave, but it refused, claiming that she just had to know it on her own. (Now you know the real reason why they didn't want any of their child welfare officers spotted by or talking to my daughter. They did not want to give her the opportunity to ask for help.) After getting this runaround for a few days, the U.S. Embassy stepped up its game by requesting that Japan's Ministry of Foreign Affairs intervene. Eighty days later, MOFA simply informed the embassy that the mother would not agree to the consular visit.

After my daughter's return, I went back to the Child Guidance Center to ask why they had continued to make this assertion about a supposed freedom to phone or leave when the shelter staff obviously had every intention of preventing it from occurring.

Unfortunately, the evasiveness began before I could even sit down. As we walked into a meeting room, I asked the continually smirking center manager whether he had heard of my daughter's return home a few days earlier. He said that he had, so I asked how he had received this information. After an abrupt pause, he responded as if he was protecting nuclear launch codes by emphasizing that he could not reveal that information.

When I got to the freedom to phone or leave whenever one desired, he mentioned that before allowing anyone to do such, discussions would be necessary to determine how this might be done without endangering others at the facility. Of course, this politically correct response ignored the fact that an actual attempt to leave the facility resulted in what was obviously a standard physical prevention of that attempt instead of any discussions to assist in a departure.

Equally disturbing was the shelter's response when it received news that a U.S. Embassy representative wanted to visit. Workers immediately warned my daughter's mother, who then informed my daughter that she had better tell any visitor that she was happy and did not want to go home.

Shelter workers then told my daughter to keep the room curtains closed because her father's spies had been spotted in the neighborhood. Yes, my spies!

These are "adults" paid by our taxes spewing such garbage.

Twenty days after her abduction, after being moved twice, renamed, repeatedly beaten and told never to speak of her mixed heritage, my daughter was rescued by me from this state-created hell, an infernal abyss of a mess in a country that so effusively prides itself on its care for children. How did she get out?

Go to Part to Behind the facade of family law

Judges fill the gaps in Japan's family law (Part 2-2)

Another example is the anachronistic legal requirement that a child born within 300 days of the mother's divorce be registered as the child of her ex-husband — even if she has married the child's biological father. Thus, the formalistic integrity of the registry system takes precedence over the biological and emotional reality of Japanese children.

Indeed, when form and substance clash in Japanese law, the family registry and outdated provisions of the Civil Code often win. Marriages are not legal until they are registered, and in custody disputes, what the family registry says may be more important than the reality of a child's living environment and biological or emotional bonds. As a result, fathers of children born out of wedlock — even if it is due to the circumstances of the mother (such as being estranged from but still married to someone else, or not wanting to change her name for professional reasons) — have literally no legal standing over their own children in Japan, even if they are the primary caregiver. Similarly, after divorce a noncustodial father legally becomes a "stranger" to his own children and may be shocked to discover that, without his consent, these children can be adopted by a new husband if his ex-wife re-marries, or by her own parents if she does not.

This brings us back to the Civil Code, which basically says that, absent special circumstances, mothers have custody of extramarital children, that married parents have joint custody over children of the marriage while it lasts, and that if divorcing parents are not able to agree on who gets custody, a judge will decide for them.

At the same time, however, the code contains virtually no standards for custody decisions after divorce other than a reference to the "interests of the child." Courts purport to use a "best interest of the child" standard, but there are virtually no statutory guidelines as to what that means (that is, unless you include the fact that the Civil Code does not allow joint custody post-divorce — even if both parents desire it). The law effectively assumes that outside of marriage, having only one parent actively involved in a child's life is better than having both. But since the focus of the law was traditionally on the interaction between households and the rest of society, this restriction may have once made sense: Fewer disputes are likely to arise if after divorce only one parent has the authority to conduct dealings with third parties on the child's behalf. It is, however, a rationale that has little to do with the best interests of the child. A sole-custody regime is probably also easier for bureaucrats to administer, and changing it might involve a wholesale restructuring of the family registry system, and even lead to thinking about whether it is still even necessary (South Korea recently replaced its family registry with a personal registry system).

Other than the limitation on joint custody, there is essentially no substantive body of "law" on child custody or visitation in Japan, with such matters left to the discretion of Family Court judges. Courts have used this authority to adopt a number of unofficial standards, including a strong preference for the status quo (but only the status quo at the time of litigation; the status quo of children before they are abducted to Japan, for example, is often ignored). Courts are also increasingly open to the once-alien notion of visitation after divorce, but often only if both parents agree to it. And while mothers refusing to agree to visitation is a persistent problem, it is not uncommon for Japanese fathers not to seek it, either.

Another standard invented by the courts is a preference for mothers when it comes to custody orders, though the parties are always free to agree to give custody to the father in the course of the court-sponsored mediation that must precede divorce litigation. According to Supreme Court statistics, in 2008 men got custody in mediated divorces in approximately 10 percent of cases. Interestingly, the court does not appear to publish similar statistics for litigated divorces (i.e., when judges are responsible for the result rather than the parties themselves), reflecting their stated preference for mothers, particularly in the case of young children. A commercially available manual written by and for family law specialists has a chapter on custody determinations that sets forth a single standard: Give custody to the mother, because they are always going to be more attentive than fathers. (In making this judgment, the manual seems to assume that all men work outside the home and all mothers stay at home.)

The preference for mothers would seem to be an impressive feat of judicial legerdemain in the face of provisions in the Constitution, the Civil Code and the Family Court procedural statute that mandate the "essential equality of the sexes." That jurists can talk openly about mothers as always being the "better parent" without any cognitive dissonance may reflect an understanding of the phrase "gender equality" as actually being about raising the status of women from the legal infirmities they were subjected to under the pre-war Civil Code, rather than actual gender equality. Whether such an understanding remains relevant in the 21st century is questionable.

Of course Japan has laws other than the Civil Code, and it should be possible for courts to look to them for norms and principles that could be applied to fill out the many blanks in the area of child custody and visitation. For example, Japan is a signatory to the Convention on the Rights of the Child, which contains an extensive list of rights that would seem relevant, including the rights of children to be free of various forms of discrimination against them and their parents, to know and be raised by their parents whenever possible, to preserve their name and family relations, and to continue to have contact with a separated parent. Yet none of this seems to count for anything in Japanese courts, where parental contact is easily terminated even before divorce, custody determinations are made based on gender (and nationality, many foreign parents might assert), and a child may grow up forgetting or even never experiencing the love of a caring parent who has struggled in court to prevent this from happening.

Then there is the Constitution. The U.S Supreme Court has held that parents have a fundamental liberty interest in their relationship with their children, meaning that a very high threshold must be met before a government agency can terminate it. Japanese Supreme Court cases tying the parent-child relationship to any sort of fundamental rights, however, are almost nonexistent. In 1984, a father appealed the denial of visitation to the Supreme Court on the basis that it violated his right to the pursuit of happiness under Article 13 of the Japanese Constitution. His appeal was rejected. While this may reflect the reluctance of Japan's highest court to interfere in family affairs, many parents might question whether Article 13 means anything at all if it does not encompass the happiness of watching your own children grow up.

Judges fill the gaps in Japan's family law 1-2

First in a two-part series

Last year was an important one for child custody issues in Japan, with growing international pressure on Japan to sign the Hague Convention on International Child Abduction, and the dramatic arrest of Christopher Savoie in September for supposedly "kidnapping" his own kids in Fukuoka.

I was actually interviewed for a segment on MSNBC's "Today Show" in connection with the Savoie case. Since the program quite rightly focused on an interview with Mr. Savoie, the footage used of me was quite brief: mostly a clip of me saying it was shocking how easily parental rights are terminated in Japan. But watching my (literally) 14 seconds of fame afterwards, I realized immediately that I had mis-spoken. What is shocking is not how easily parental rights are terminated, but how few parental rights there are to begin with.

While it is common to refer to divorce, custody and visitation as matters of "family law," strictly speaking Japan does not have such a thing. The principal body of what is generally considered family law is contained in Part IV of the Japanese Civil Code, which is actually titled "Relatives." In substance, it is concerned mainly with how family relationships are created, modified and terminated, and includes not just the rules by which marriages are formed and terminated, but also those governing the widespread practice of adoption (adult adoption remaining a common practice for households that wish to continue the family name, traditions or business but have no male children to do so).

The code also explains some of the duties of individuals within these relationships, but contains almost no provisions laying down rights, particularly after a relationship has been terminated. Thus, the code is silent on post-divorce child support, visitation and alimony (as distinct from division of marital property). Such relief as is awarded in these areas has effectively been manufactured by the courts according to their own unofficial rules and standards.

In essence, the "black letter" family law that does exist in Japan is concerned more with the form than the substance of familial relationships. This reflects the historical importance of the household rather than the individual as both a social unit and a nexus of responsibility for dealings with society and government. This may be why the government- administered koseki system — officially translated as "family registry" (though "household registry" would be more accurate) — remains an important institution, despite being so anachronistic that the average Japanese person may struggle to explain what purpose it serves in 21st century democratic society.

The family registry has its beginnings in a system implemented by the government at the start of the Meiji Period, designed to help maintain order at a time of great political upheaval. It did so by enabling the new government to keep track of who belonged to which household, and which people were "out of place." The family registry thus traces its roots directly back to a 19th century community surveillance system. It was also a tool of class warfare: Adopting a registration system that kept track of class was one of the ways the new government eradicated the rigid samurai-farmer-artisan-merchant neo-Confucian caste system of Tokugawa Japan.

Births, deaths, marriages and divorces — and, recently, changes in gender — are all recorded in the family registry. The registry remains a quasi-public record, and a copy of it is still an important identity document, and may be required for a passport application or other purposes. As an identity document, however, the family registry suffers from a number of deficiencies, since it shows little more than who is officially related to whom and how, and possibly where in Japan the family has its roots (it being possible to have a registry that goes back many generations).

The family registry can reveal all sorts of information about people that in many countries would be nobody's business and, more importantly, that can be the source of various forms of discrimination. For example, only Japanese nationals can have family registries, so ethnic Koreans who have lived in Japan for generations without naturalizing are readily identifiable, as are those who marry foreigners (this involves a special notation in the Japanese spouse's registry). The document also shows whether children were born out of wedlock, and can be used to trace family origins. While it is possible for a marrying couple to start a completely new registry, this can arouse suspicions that you are trying to hide something about your pedigree.

The fact that the family registry remains a source of a person's official identity has a number of ramifications, most of which seem negative. Reflecting the "form over substance" character of the registry, the "identifying information" may not actually be accurate. For example, since the registry reflects family origin rather than actual residence, the "domicile" shown in a Japanese passport may be a place where its holder was neither born nor lives.

Another example is the anachronistic legal requirement that a child born within 300 days of the mother's divorce be registered as the child of her ex-husband — even if she has married the child's biological father. Thus, the formalistic integrity of the registry system takes precedence over the biological and emotional reality of Japanese children.

Indeed, when form and substance clash in Japanese law, the family registry and outdated provisions of the Civil Code often win. Marriages are not legal until they are registered, and in custody disputes, what the family registry says may be more important than the reality of a child's living environment and biological or emotional bonds. As a result, fathers of children born out of wedlock — even if it is due to the circumstances of the mother (such as being estranged from but still married to someone else, or not wanting to change her name for professional reasons) — have literally no legal standing over their own children in Japan, even if they are the primary caregiver. Similarly, after divorce a noncustodial father legally becomes a "stranger" to his own children and may be shocked to discover that, without his consent, these children can be adopted by a new husband if his ex-wife re-marries, or by her own parents if she does not.

This brings us back to the Civil Code, which basically says that, absent special circumstances, mothers have custody of extramarital children, that married parents have joint custody over children of the marriage while it lasts, and that if divorcing parents are not able to agree on who gets custody, a judge will decide for them.

At the same time, however, the code contains virtually no standards for custody decisions after divorce other than a reference to the "interests of the child." Courts purport to use a "best interest of the child" standard, but there are virtually no statutory guidelines as to what that means (that is, unless you include the fact that the Civil Code does not allow joint custody post-divorce — even if both parents desire it). The law effectively assumes that outside of marriage, having only one parent actively involved in a child's life is better than having both. But since the focus of the law was traditionally on the interaction between households and the rest of society, this restriction may have once made sense: Fewer disputes are likely to arise if after divorce only one parent has the authority to conduct dealings with third parties on the child's behalf. It is, however, a rationale that has little to do with the best interests of the child. A sole-custody regime is probably also easier for bureaucrats to administer, and changing it might involve a wholesale restructuring of the family registry system, and even lead to thinking about whether it is still even necessary (South Korea recently replaced its family registry with a personal registry system).

Other than the limitation on joint custody, there is essentially no substantive body of "law" on child custody or visitation in Japan, with such matters left to the discretion of Family Court judges. Courts have used this authority to adopt a number of unofficial standards, including a strong preference for the status quo (but only the status quo at the time of litigation; the status quo of children before they are abducted to Japan, for example, is often ignored). Courts are also increasingly open to the once-alien notion of visitation after divorce, but often only if both parents agree to it. And while mothers refusing to agree to visitation is a persistent problem, it is not uncommon for Japanese fathers not to seek it, either.

Another standard invented by the courts is a preference for mothers when it comes to custody orders, though the parties are always free to agree to give custody to the father in the course of the court-sponsored mediation that must precede divorce litigation. According to Supreme Court statistics, in 2008 men got custody in mediated divorces in approximately 10 percent of cases. Interestingly, the court does not appear to publish similar statistics for litigated divorces (i.e., when judges are responsible for the result rather than the parties themselves), reflecting their stated preference for mothers, particularly in the case of young children. A commercially available manual written by and for family law specialists has a chapter on custody determinations that sets forth a single standard: Give custody to the mother, because they are always going to be more attentive than fathers. (In making this judgment, the manual seems to assume that all men work outside the home and all mothers stay at home.)

The preference for mothers would seem to be an impressive feat of judicial legerdemain in the face of provisions in the Constitution, the Civil Code and the Family Court procedural statute that mandate the "essential equality of the sexes." That jurists can talk openly about mothers as always being the "better parent" without any cognitive dissonance may reflect an understanding of the phrase "gender equality" as actually being about raising the status of women from the legal infirmities they were subjected to under the pre-war Civil Code, rather than actual gender equality. Whether such an understanding remains relevant in the 21st century is questionable.

Of course Japan has laws other than the Civil Code, and it should be possible for courts to look to them for norms and principles that could be applied to fill out the many blanks in the area of child custody and visitation. For example, Japan is a signatory to the Convention on the Rights of the Child, which contains an extensive list of rights that would seem relevant, including the rights of children to be free of various forms of discrimination against them and their parents, to know and be raised by their parents whenever possible, to preserve their name and family relations, and to continue to have contact with a separated parent. Yet none of this seems to count for anything in Japanese courts, where parental contact is easily terminated even before divorce, custody determinations are made based on gender (and nationality, many foreign parents might assert), and a child may grow up forgetting or even never experiencing the love of a caring parent who has struggled in court to prevent this from happening.

Then there is the Constitution. The U.S Supreme Court has held that parents have a fundamental liberty interest in their relationship with their children, meaning that a very high threshold must be met before a government agency can terminate it. Japanese Supreme Court cases tying the parent-child relationship to any sort of fundamental rights, however, are almost nonexistent. In 1984, a father appealed the denial of visitation to the Supreme Court on the basis that it violated his right to the pursuit of happiness under Article 13 of the Japanese Constitution. His appeal was rejected. While this may reflect the reluctance of Japan's highest court to interfere in family affairs, many parents might question whether Article 13 means anything at all if it does not encompass the happiness of watching your own children grow up.