Japanese Custody Law – It’s a Mom’s World

I wrote recently about the consequences to parents around the world of Japan’s refusal to sign the Hague Convention on the Civil Aspects of International Child Abduction. Essentially, that means that any Japanese parent anywhere in the world can kidnap his/her child and return to Japan. Once there, Japanese courts refuse to acknowledge the other parent’s rights. That’s mostly true when mothers abduct their children because Japanese family courts overwhelmingly favor exclusive maternal custody post-divorce.

Now this article goes a step further (Japan Times, 5/14/10). It seems that many Japanese parents are surprised to learn that, if they live outside the country and one parent returns to Japan with the child, the other parent may be left out of the child’s life for good. As the article makes clear, it’s mostly fathers who have their children taken from them, but mothers can be victimized as well.

But the problems with the Japanese system of family law don’t begin or end with its refusal to sign the Hague Convention. It’s main shortcoming is its antipathy for fathers, regardless of their nationality. For example,

Paul Wong, a 44-year-old American, said he was happily married to his Japanese wife in Hong Kong but lost his daughter, Kaya, to his wife’s parents when she died of cancer in a hospital in Kyoto in December 2005.

He moved to Tokyo in April 2007 to be near his daughter and in-laws, but they refused to let him see Kaya, who is now 6. The last time he saw her was in August 2007, shortly before he was planning to move her from Kyoto to Tokyo for schooling.

And just like in the United States and elsewhere, allegations of abuse are the weapon of choice for mothers who don’t want fathers to see their children. But, while in the United States allegations of abuse are investigated by courts, in Japan apparently they’re not, as Masahiro Yoshida learned to his dismay.

“Fabricating abuse is the strongest weapon women can use to gain a single parental right,” he said.

His former wife, also Japanese, does not let him see their 5-year-old daughter. She told a court he was violent with her, though he claims he didn’t beat her.

“People go as far as to lie in court if their motivation is to keep their children to themselves,” Yoshida said. “Judges don’t get it. Or they ignore it.”

Wong puts his finger on the real problem, which is less the state of Japanese law than the state of mind of family court judges.

For Wong, even changing the Civil Law to allow joint custody of a child is meaningless. What really needs to change is the mentality of the family court judges and municipal officials who apply laws to their work, he said.

Wong said that, in his case, judges need to change their tendency to avoid the risks of disproving those who claim abuse.

Child consultation centers also have the same tendency, he said, adding they blindly believed his in-laws’ stories without even meeting him.

So Japan’s pro-mother bias is abetted by the unwillingness of judges to look impartially at claims of abuse. It’s a situation that we used to see in the United States, and to some extent still do. Certainly, primary custody is routinely handed to mothers – they’re 84% of custodial parents according to the U.S. Census Bureau. And when temporary orders are issued at the start of a divorce, allegations of abuse are almost certain to get the father’s role in the child’s life sharply diminished, at least until the court can investigate. Even if the allegations are found to be baseless, he’s still spent many months without seeing his child, and that fait accompli often forms the basis for permanent orders.

So false allegations of abuse and the restraining orders that go along with them play a huge role in divorce and custody matters. Many veteran family attorneys have said frankly that allegations of abuse are routinely made for the sole purpose of gaining the upper hand in custody proceedings. Apparently in Japan, that’s automatic, whereas here the process is a bit more complicated and is not always successful.

Still, many Japanese fathers and at least some mothers are beginning to ‘get it.’ As one mother, Mio Watanabe, said,

“I want to tell Japanese mothers holding their children to themselves that I understand their feeling, but it is best for children to have two parents.”

It’s a start.

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