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Saturday, Oct. 10, 2009
Custody laws force parents to extremes
The high-profile case of Christopher Savoie, a Tennessee man who was arrested in Fukuoka Prefecture for snatching his two children from his Japanese former wife and now faces kidnapping charges, illustrates the extremes a partner in a broken international marriage will resort to for child custody.
The case, which made a splash in U.S. media, especially on CNN, also highlights the uniqueness of Japan's culture and judicial system regarding the custody of children in cases of divorce, and its lack of regard for custody rulings by courts overseas where divorces took place, such as the one in the U.S. favoring Savoie.
The fact that Japan has not signed the Hague Convention on the Civil Aspects of International Child Abduction, which secures the prompt return of a child wrongfully removed to or retained in any signatory countries, complicates the problem even further.
Following are some questions and answers regarding a child's custody in international marriages that end in divorce in Japan:
How do family courts usually rule on custody, regardless of a parent's nationality?
Family courts normally grant sole custody to the ex-spouse who is able to spend more time with the child, which in Japan is usually the mother. This contrasts with the United States and many other developed nations, where joint custody is the norm.
The parent who wins custody, almost always the mother, is able to control how much, or how little, the other parent can see the child. They can even bar all contact.
In short, a divorced mother in Japan gets sole custody of the child and decides the visitation terms of the father.
Why is shared custody out of the question?
Article 819 of the Civil Code stipulates that "shinken," or parental rights, reside with only one of the divorced spouses. The legal term refers to the general rights and duties of parents in raising their child. An exact term in English probably does not exist, according to lawyer Takao Tanase.
Article 766 lays out the arrangement of "kangoken," or custody, which translates as the right to live with and duty to raise a child.
If a divorced couple cannot agree on either parental rights or custody, family courts decide for them. In most cases, the court grants both parental rights and custody to a single parent, normally the mother.
"Family court judges thoughtlessly equate sole parental rights with sole custody. I suspect the judges think it is difficult to maintain the parent-child connection outside the home, and thus if someone does not live with a child and only has periodic visitation, the concept of the family is threatened," Tanase said.
Tomoyuki Tobisawa, an official from the Justice Ministry's Civil Bureau, said Articles 819 and 766 have not been revised since December 1947, when the country's laws were rewritten in modern Japanese. He declined to say why the ministry thinks parental rights should reside with only one parent.
What is the cultural background in granting parental rights to mothers?
There are no laws suggesting mothers are more suitable to hold parental rights or custody than fathers.
However, family courts rarely challenge the widely held belief that mothers should take care of the child, unless they are abusive or in some way incompetent, because fathers are normally away from home due to their jobs.
Legal expert Shinichiro Kudo, who specializes in divorce and settlement consultations, said fathers who work shorter hours than their ex-wives sometimes gain custody, but that it is quite rare.
But longer working hours do not necessarily make fathers less competent at child-rearing, Kudo said.
He said the term "parental rights" actually involves the duty to act in the best interests of the child. According to Kudo, it makes sense for a parent who works hard from morning to evening to perform parental duties because they are providing financial support for the child.
"In mediation, lawyers always ask a working parent what time he or she comes home from work. That is a very vital question," he said.
Does a divorced spouse who lacks parental rights remain a legal parent?
Yes, children are still listed as theirs in the residency registry even after divorce, lawyer Tanase said.
Why is an international divorce case a bigger problem?
Japan's laws and judicial system differ from other developed countries, and its courts feel no responsibility to side with any preceding rulings made by their overseas counterparts in specific cases.
About 80 countries, including the United States, most European countries and Australia, have signed the Hague convention.
Various countries have urged Japan to sign the convention a number of times. Most recently, the U.S., Canada, Britain and France issued a joint statement urging Japan to address the problem, said Kosei Nomura, an official in charge of international law at the Foreign Ministry.
But there are arguments in Japan that signing the convention would make it harder for parents to flee abusive spouses.
What would happen if Japan signed the Hague convention?
In the case of Christopher Savoie, whose former wife, Noriko, was judged by a Tennessee court to have kidnapped their two children, Japan would have to order her to return them to the United States, because they were "wrongfully" removed and taken to Japan, Tanase said.
He added that the case will probably become a diplomatic issue since it is so prominent.
Reports from CNN and AP said that a Tennessee court granted Savoie sole custody and served an arrest warrant on his wife in August after she allegedly kidnapped her 8-year-old son and 6-year-old daughter and took them to Fukuoka. Savoie was arrested Sept. 28 by Fukuoka police on suspicion of kidnapping the two children in Fukuoka. He is now being held by prosecutors.
Are there other similar cases in which foreign parents cannot see their child?
There are no reliable statistics as to how many are in this predicament. But some groups supporting divorced parents, including the Assembly for French Overseas Nationals for Japan, have said 160,000 foreign and Japanese parents in Japan are unable to meet their kids after separation or divorce.
They also claim more than 10,000 dual-citizenship children living in Japan are prevented from seeing their foreign parent.