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Custody battles: an unfair fight

by Michael Hassett

“Sport at its best obliterates divisions between peoples, such as ostentatious flag-waving and exaggerated national sentiment.” New York Times senior writer Howard W. French — who has covered China for the past five years, was Tokyo bureau chief from 1999 to 2003, and has lived overseas for all but 3 1/2 years since 1979 — made this astute observation last month after staying up most of the night in Shanghai to watch the remarkable five-set Wimbledon final between Spain’s Rafael Nadal and Switzerland’s Roger Federer.

Only four days into the long-awaited Beijing Olympics, we can only lament the regression that has taken place after only a month and will most certainly intensify over the next 12 days, in what media often infuses into our very beings as “us vs. them.” Unfortunately, here in Japan, it is not only the media that eagerly participates in this engine of propaganda — it’s the education system itself.

As many may know, in response to new curriculum guidelines introduced in the 2002 school year that included the fostering of “feelings of love for one’s country” as an objective for sixth-grade social studies, students at a number of public elementary schools around the nation have since been subjected to evaluations on their love for Japan. Moreover, in December 2006 this country’s basso ostinato of excessive pride bordering on jingoistic fanaticism ground on as the ruling bloc in the Diet forced through revisions to the Fundamental Law of Education by removing a reference to “respecting the value of the individual” and instead calling on schools to cultivate in students a “love of the national homeland.”

But what impact does this have on families here in which one parent is Japanese and the other is not? A relationship between individuals from different countries will generally experience great friction when one or both of the partners remain more committed to their nationality than they do to their spouse — in other words, when they are more married to their country than they are to each other. And this can become exacerbated when children are encouraged to side with one country or the other. Or, in Japan’s case, taught to love Nippon and then graded on patriotism.

One year ago, The Japan Times (Zeit Gist, Aug. 7) printed some findings of mine that showed that there is a 21.1-percent likelihood that a man who marries a Japanese national will do the following: create at least one child with his spouse (85.2 percent probability), then divorce within the first 20 years of marriage (31 percent), and subsequently lose custody of any children (80 percent). And in a country such as Japan — one that has no visitation rights and neither statutes nor judicial precedents providing for joint custody — loss of custody often translates into complete loss of contact, depending on the desire of the mother.

And if this figure is not startling enough, this year’s calculation using more current data would leave us with an even higher likelihood: 22.5 percent. Having this information, we must now ask a question that most of us would dread presenting to a friend in a fog of engagement glee: Is it the behavior of a wise man to pursue a course of action that has such a high probability of leaving your future children without any contact with their own father?

Most of us enter a marriage with the realization that divorce is a possibility. Of course, we don’t hope for a breakup, but we accept that unions do occasionally dissolve, and heartbreak — usually temporary — will often result. However, do we ever enter marriage thinking beyond our own selves to the realization that there is a substantial likelihood that our own children — our personal flesh and blood — will be ripped from our lives? Doubtful. But in this country, this loss happens to one in every four fathers. Does it happen more to non-Japanese men? Most likely not. The divorce-to-marriage ratio for relationships between Japanese women and foreign men was nearly 39 percent in 2006. For the entire nation it was 41 percent.

And non-Japanese women married to Japanese men should not rest too comfortably either. Their divorce-to-marriage ratio was over 38 percent in 2006. And even though mothers are usually awarded custody of children, it has been widely reported that foreign parents here in Japan are almost never successful in custody claims, and even if the foreign parent is lucky enough to eventually be granted custody, effecting such a court order may prove very difficult because law enforcement generally prefers to remain uninvolved in these complicated, emotion-filled cases. According to Colin P. A. Jones, a professor at Doshisha Law School in Kyoto, “family courts will usually do what is easy, and giving custody to the Japanese parent is usually going to be easier.”

David Hearn, director of “From the Shadows” ( www.fromtheshadowsmovie.com ), a documentary in production about child abduction by parents and relatives in Japan, says that he has so far come across only two cases in which non-Japanese had physical custody going into divorce proceedings and received custody at the ruling. And in one of these two cases, the Japanese parent did not put up much of a fight for the children.

According to Hearn, “Whoever has the children when proceedings begin gets sole custody of the children in virtually every case. It’s then easy to understand why parents do such cruel things to each other, and the kids, to get physical custody before divorce is petitioned for and custody is decided in family court.”

Now, when criticism of Japan or the Japanese system is presented, two forms of rebuttal are common: 1) It’s just as bad or worse elsewhere (as if this somehow justifies poor conditions here); or 2) It has never happened to me (as if a pattern can’t exist unless that particular person is part of it).

When it comes to comparisons of countries, the United States is generally one that is used as a benchmark. And the likelihood of the above progression — from marriage to parenthood to divorce to loss of custody — is slightly greater, at 25.9 percent, in the United States. However, joint custody has become an integral part of U.S. society, and even though 68 percent of mothers receive both sole legal and physical custody in a U.S. divorce, a man who truly desires custody and makes the effort to obtain such is usually going to be accorded some form of it.

As for the second type of criticism — it has never happened to me — well, good for you! Me neither.

So, what is a foreigner deeply in love with a Japanese national and eager to make little Himes and Taros to do? Residing outside Japan is probably the best option. Japan has yet to sign the Hague Convention on the Civil Aspects of International Child Abduction, but is reportedly planning to do so by 2010. For the most part, overseas courts would accord greater protection of custodial rights for both parents. And we can only hope that changes that will need to be made to comply with this treaty will encourage alterations to law that will encourage the introduction of joint custody here in Japan.

But as we continue through this Olympic week and into the next — weeks that are sure to be filled with intense, core-emanating, possibly desperate cries for the success of ‘ol “NI-PPON,” followed by tears that deprive one of breath, or jubilation that rivals life’s greatest climaxes — perhaps we should review the intended purpose of these games, as exemplified in the Olympic Creed: “The most important thing in the Olympic Games is not to win but to take part, just as the most important thing in life is not the triumph but the struggle. The essential thing is not to have conquered but to have fought well.”

This creed could also apply to marriage, parenthood and divorce. There is a reason why pride is one of the seven deadly sins: When winning takes precedence in any of these joint endeavors, a great mess is usually left by the one who has triumphed and conquered, and the remaining institution is left blackened. Those in mixed marriages would be wise to tread carefully during these Olympic weeks. Or better yet, cheer for Iceland!

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