In the debate about whether Japan should sign the Hague abduction convention, a serious consequence of Japan’s failure to ratify the treaty is being overlooked. Japan’s failure to sign the convention is extremely damaging to Japanese nationals living overseas, since it makes it far harder for them to bring their children to Japan for visits, and encourages them to break foreign criminal laws that prohibit international child abduction.
A key reason that Japan has not signed the treaty is that it believes the convention will help foreigners but will be of no value to Japanese citizens. That claim is not merely reprehensible, but is also entirely false.
The ordeal of my client, Chris Savoie, in losing his beloved children to Japan, has served to shine a strong light on this problem. As an international family lawyer, I have consulted with about 100 non-Japanese parents whose children have been abducted to Japan, but Chris’ case is the first to have really caught the attention of the world’s media.
The result is that both the public and judges in countries outside Japan are now increasingly aware that Japan:
• is a haven for international child abduction; has never ordered an internationally abducted child’s return;
• has no system of shared parenting;
• does not respect foreign child custody orders;
• and has a family law system that is totally dysfunctional, at least when it comes to international relationships.
This means that if a non-Japanese parent objects to a child being taken for a visit to Japan by a Japanese parent from the parents’ home in America (or another Western country), the American (or other Western) judge must now almost always bar any such visit, since there will be nothing that the non-Japanese parent could do in Japan if the Japanese parent refused to return the child. As a result, visits “home” to Japan by a Japanese mother with her Japanese-American children should no longer be permitted by American courts, since the risk is far too great that the children will be kept in Japan and never be returned.
Courts around the world are increasingly familiar with developing sensible international parenting plans for parents who live in different countries. A typical plan is that if, for example, dad is in New York and mom is in London, mom will have primary care of their children in London but the children will spend the major part of each summer holiday with dad in New York, and they will also spend either Christmas or spring vacation with dad in either city. A typical order will also provide that dad be able to speak to the kids at least four or five times a week via Skype with a webcam. Furthermore, the financial arrangements will typically be modified so that dad’s child support payments are reduced because of his additional travel expenses.
Unfortunately no such arrangement could possibly work with respect to Japan, simply because Japan does not have a legal system that will enforce any part of the agreement. Japan’s Family Code recognizes nothing but sole custody and makes no mention of visitation rights on the part of the noncustodial parent.
Japan’s family law system, as it applies to foreign parents seeking access to their own children, seems intended to accomplish nothing except to wear out the petitioning foreign parent and to endorse the status quo in favor of the child-abducting Japanese parent. The “system” does not issue orders in contested cases, perhaps because it has no means of enforcing any of its orders. Indeed, Japan does not even have an efficient child support system within Japan, never mind on an international level.
Accordingly, U.S. and other Western courts are now basically compelled to stop international child visitation to Japan if the non-Japanese parent objects. This ridiculous result stems directly from Japan’s failure to have a working family law system.
Consequently, the only way a Japanese parent will be able to take their children to visit Japan over the objections of the other parent will be by covertly removing the children. This will constitute their commission of an extremely serious crime under U.S. federal law: The crime of international parental child kidnapping is a felony in the United States punishable by three years in jail. It will typically be reported to Interpol so that an abducting parent will be subject to arrest if he or she ever travels out of Japan.
All of this means that Japan’s policy is extremely damaging to Japanese parents in international marriages. Until Japan signs the Hague convention and has a system in place to give the treaty real teeth in Japan, there will be no way for a Japanese mother to take her children to Japan except with the express agreement of the non-Japanese parent, or by illegally abducting them.
Japan’s hands-off approach to international child custody issues needs to change. It is to be hoped that President Obama discussed these matters very forthrightly with Prime Minister Hatoyama during his recent trip to Japan.
Jeremy D. Morley is an international family lawyer and the author of “International Family Law Practice.” He represents Christopher Savoie, whose two children were abducted to Japan by their mother in violation of U.S. law. His Web site: www.international-divorce.com
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