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Friday, Feb. 4, 2005

CROSS-BORDER CASES PUZZLE PLAINTIFFS

Child-custody battle exposes court conflicts


Staff writer

On Nov. 30, Alexandra Mallas got into a car with her brother and friends in a city in central Japan and headed toward a local school. She approached her son as he was walking to school, picked him up and drove him to the U.S. Embassy in Tokyo.

As soon as they started off for the capital, Mallas called the boy's father -- her ex-husband -- and notified him that she and the child were going to leave the country. On their way to the embassy, she said, police called her on her mobile phone and said she had to return because they had been alerted to a "kidnapping."

"Of course it wasn't a kidnapping. I'm his mother, and I had every legal right," Mallas said.

Mallas, a 35-year-old U.S. citizen, gave up her job, traveled halfway across the world, pleaded her case in the courts of Japan and the U.S., and even attempted this extreme action -- just to gain custody of her 12-year-old son.

So far, her attempts have failed, and her son lives in Japan with her 36-year-old ex-husband, who is also a U.S. citizen and whose last name is not Mallas. The Japan Times did not identify the father to protect the privacy of the son, who shares his last name.

Child-custody battles, while not always as dramatic as this one, are a common outcome of divorce. What makes the Mallas case unusual is that while everyone involved is American, the legal battle is being fought out largely in Japan.

Mallas is just one of a rising number of foreigners who are becoming involved in child-custody battles here.

According to the Supreme Court, lawsuits on parental rights and responsibilities brought to family courts that involved non-Japanese jumped from 169 cases in 1999 to 261 in 2003. Custody disputes resolved through court mediation also rose, from 564 to 721, over the same period.

The cases include disputes between Japanese and non-Japanese couples, but observers say situations similar to the Mallas case, in which both parties are foreigner, are also on the rise.

Mallas and her ex held joint custody of their son after divorcing in a court in their home state two years ago. But things became complicated after each filed a lawsuit -- the mother in the U.S. and the father in Japan -- to obtain full custody.

Mallas obtained sole custody of the boy under the laws of the state. In Japan, a family court rejected the father's plea for full custody. However, since he is appealing, the legal battle continues.

The family court's ruling described their situation as follows:

Mallas, her former spouse and their child came to Japan as a family in March 2000. Within less than a year, the couple separated, and the child started living with the mother while occasionally visiting his father.

Upon their divorce in March 2003, they were granted joint custody of the boy by the court in their home state. According to the parenting plan, the child was to stay with his mother while school was in session and with his father during the summer and winter vacations.

In October 2003, Mallas, who wanted her son to be educated in the United States, returned there to prepare for his education, and entrusted the child's care in the meantime to his father and new Japanese wife and their child. They agreed to let Mallas' son attend a local school until the end of the first semester, which in Japan is July.

Before flying out, Mallas and her ex-husband agreed to have the child start school in the U.S. last September. They also agreed that he would send the child to the U.S. to visit his mother in December 2003 and last March, by which time she had also remarried.

But after the boy did not visit as promised last March, without a clear explanation from the father, Mallas went to a U.S. court in late July and filed petitions for contempt and for modification of child custody and support.

The court issued an emergency order for the father to put the son immediately under her custody and to appear in court in October. After the father did not show up on the designated date, the court gave Mallas sole custody of the boy and charged the father with contempt.

In Japan, the father petitioned a local family court last May to have changes made to their custody arrangement before the U.S. court. According to the family court, the father wished to obtain full custody on grounds that his son was living with him and wished to stay in Japan and continue going to school here.

The father refused to talk to The Japan Times, but his Japanese lawyer said that as a fundamental rule, lawsuits over child custody are supposed to be processed at the court nearest the habitual residence of the child, because it is a matter that involves the child's welfare.

Therefore, the U.S. court order is not legally valid in Japan, he reckoned.

After learning of her ex-husband's move, Mallas flew to Japan last summer. With her legal documents in hand, Mallas visited the U.S. Embassy to obtain further support, but was told by officials there that the only thing they could do was issue a passport for her son if he appeared in person, she said.

The family court meanwhile found it suitable to resolve the dispute by conforming to the pertinent state law -- a legal procedure that often takes place in civil cases involving foreigners.

In November, the family court dismissed the father's petition. The court said that while it recognized the child's wish to remain in Japan, it could not find sufficient reason to grant the father sole custody.

Mallas said she believed the family court's decision would put the son in her care, because the initial joint custody agreement dictated that she was to care for the boy during the school period.

But that did not happen.

"I waited and waited, but nothing (happened)," Mallas said. "The family court made a decision, but they were not able to enforce it. We have it (in the U.S.) where the sheriff pounds on the door and says (to the other party) 'Give the kid over.' But I don't have that (system) here."

After waiting more than two weeks, Mallas decided she would go to get her son back physically, and carried out her plan on Nov. 30.

But as she and the son were about to leave the embassy with the boy's passport, her ex-husband showed up. There was a scuffle, according to Mallas. Then they were all escorted from the embassy compound by U.S. Marines, she said.

Mallas said she was upset that the embassy staff did not give her protection, which she expected because she had sent the relevant legal documents to the mission -- including a copy of the official U.S. court order explaining that a warrant has been issued for her ex-husband's arrest for contempt of court -- in advance.

The embassy, which said it is aware of the recent rise in the number of Americans in Japan involved in custody disputes, told The Japan Times that, in general, consular officials are limited in what they can do for U.S. expatriates when it comes to child-custody battles.

The embassy also said that officials cannot make arrests on the premises because they are not law enforcement authorities.

Outside the embassy entrance, the quarreling parties, who were still fighting over the child, were surrounded by Japanese police, Mallas said. Although police said that in general, they do not intervene in a domestic dispute, they offered them space at the Akasaka Police Station to talk things out.

Eventually, her ex-husband's lawyer appeared, and Mallas was told that the family court's decision was being appealed, she said.

This meant she had to -- and did -- release her son to her ex-husband, because the two sides had earlier agreed that she would not take the son out of Japan without his father's consent until the case is ultimately resolved.

Mallas said she resorted to the extreme measure of trying to take her son out of the country because court decisions were not being enforced.

"Taking physical possession of my child was the worst experience I've been through in my life, and for him, too," Mallas said. "But what other choice did I have when I have the right to take my child, but I didn't have him?"

In Japan, Mallas, like many parents in similar situations, has no choice but to continue fighting in court.

Lawyer Mikiko Otani, who has worked on custody lawsuits involving Japanese, mixed-nationality and non-Japanese couples, said decisions made by Japanese courts need to be much more instructive and specific if they choose to handle the case by applying the laws of the other countries involved in the dispute.

If this had been handled by a U.S. court, Otani said, the court would have exercised its power and decided in detail on how to arrange custody. It also would have spelled out when and how to hold visitations. However, Japanese courts do not clarify these points because the legal system here does not give them such powers, she said.

"If Japanese courts are going to work as competent courts and handle the case by conforming to foreign laws properly, they should make detailed instructions on how the dispute should be settled, because if they don't, they can leave the parties involved confused," she said.



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