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Not showing at a family court near you

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

by Colin P.A. Jones

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 Yet, while trying hard to be good at home, at school she becomes sullen and withdrawn, and fights with her classmates over trivial things.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.

Colin P. A. Jones is a professor at Doshisha Law School in Kyoto. Send comments and story ideas to community@japantimes.co.jp