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Counting the cost

by Mark Smith

Although I appreciate the point that Michael Hassett is trying to make in his article “Losing custody: the odds” (Zeit Gist, Aug. 7), he asks the wrong question to try to determine a man’s probability of heartbreak and turmoil and uses statistics in a way that is misleading.

The right question is, “How likely is it that a father will be prevented from having a relationship with his child, assuming that he has a child?” The assumption of having a child first is necessary to compensate for the large difference in overall birthrate in Japan and the U.S. Without this, the Japan result will be too low and the U.S. result too high, relative to each other.

In addition, as Mr. Hassett’s friend’s experience shows, losing contact with your child does not require a divorce in Japan. In fact, some parents in Japan deny a divorce to the retaining parent indefinitely, as a last hope of someday establishing a relationship with their child. Adding divorce into the calculations penalizes the U.S. because of the high divorce rate, despite the fact that unlike Japan, divorce in the U.S. no longer carries much social stigma.

Mr. Hassett also overlooked out-of-wedlock births, where Japanese law automatically awards sole custody to the mother. No court decision is necessary and so these are not reported in his 80-percent statistic. The Ministry of Health, Labor and Welfare online database (www.mhlw.go.jp) reports 21,533 out-of-wedlock births, which is nearly 13 percent of the total 169,861 awards of sole custody to one parent in 2005. The real probability that a father will lose custody in Japan is thus 86 percent — important to 21,533 fathers.

A special supplement to the 1998 U.S. Census estimates that nationwide 65 percent of mothers have both sole legal and physical custody and thus 35 percent of fathers have some kind of joint custody. Since Japan does not allow joint custody, a simple comparison of these U.S. and Japan probabilities, 65 percent and 86 percent, would seem to be more reasonable than the 20-something percent probabilities Mr. Hassett derives. This figure inherently assumes both that there was one or more children born in the first place and does not bias the analysis by including the probability of divorce.

But heartbreak does not necessarily occur just because a parent loses custody. There are many great custodial mothers, Japanese and American alike, who want their children to have relationships with their fathers. Heartbreak does occur when a parent loses the ability to have a relationship with their child. So these probabilities need to be multiplied by the probability of a father maintaining a relationship with his child if the mother gets custody. Both results would be lower, but the difference would become greater. The reason is that U.S. family law recognizes the right of visitation with your child, even if you do not have custody, and even in an out-of-wedlock birth, while Japanese family law does not recognize any legal right of visitation at all. Courts only symbolically grant visitation when the custodial parent would be likely to allow it anyways.

Further, the custom of totally cutting off one side of the family after a divorce is socially acceptable in Japan but not in the U.S.

Unfortunately, I have no statistics on denial of visitation in either country. But given the legal rights involved, I believe that any comparison between U.S. and Japanese fathers would show the opposite of what Mr. Hassett’s results indicate. Japanese fathers have a higher likelihood of pain and suffering from losing the relationship with their children than U.S. fathers.

Mark Smith (www.crnjapan.com)