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Saturday, Dec. 3, 2011

Father calls for custody law reform

Nation's legal system ignores court rulings, takes sides: ex says


By MAYA KANEKO
Kyodo

A U.S.-based Nicaraguan who fought a legal battle with his Japanese ex-wife over custody of their 9-year-old daughter has called on the government to revise the judicial system, saying the lack of power to enforce court rulings is hindering the resolution of such disputes.

Following a drawn-out legal conflict in both U.S. and Japanese courts, the 43-year-old mother last week agreed to return the girl to her father within 30 days, under a plea agreement reached in a court in Milwaukee. The names of the three have been withheld on privacy grounds.

After the plea deal, the father, a permanent resident in the United States, said in an interview he believes the extremely lengthy court proceedings in Japan may have prompted U.S. law enforcement authorities to arrest his former wife on a felony charge in Hawaii in April.

The woman, who lives in Takarazuka, Hyogo Prefecture, was arrested after traveling to Hawaii to renew her green card.

Following the plea deal, the Milwaukee court case will be held open for three years, after which the felony charge will be reduced to a misdemeanor if she adheres to the court order. The mother plans to live in the U.S. and to seek regular visitation rights to spend time with her daughter, her American lawyer said.

The couple filed for divorce in 2008, but the woman took her daughter to Japan just days before the father was granted sole custody of the girl by a U.S. court. After returning to Japan, the mother alleged she was abused by her former spouse and sought to become the girl's custodial parent.

In March, the Itami branch of the Kobe Family Court decided to award her custody, stressing in its ruling that the girl had become accustomed to life in Japan.

But the court rejected the woman's claims of abuse due to lack of evidence, and granted the father visitation rights so the girl would not be cut off from the U.S. and Nicaraguan cultures she has been raised in, according to the mother's Japanese lawyer.

Both parents filed appeals against the Kobe court's ruling and the case is currently being examined by the Osaka High Court. The woman's Japanese lawyer said she will likely drop her appeal because of the plea deal in the United States.

The man welcomed the Milwaukee court's decision as "the first case in which a child abducted to Japan is to be returned to its habitual residence."

The agreement also is in his daughter's best interest as she will continue to spend time with both parents and won't lose her "multicultural heritage," he said.

The case "allowed us to show the inefficiencies of the Japanese legal system, (including) its lack of enforcement and protectionism," the Nicaraguan said.

The man said his ex-wife has limited his contact with his daughter in Japan despite the accord they reached in the U.S. court, which supposedly ensured he would spend time with the girl.

Highlighting the limited power Japanese courts have to enforce their rulings, he said his ex-wife "simply said 'no' when urged by the judge to let me see my daughter."

But in a decision rarely made by domestic courts, the Kobe Family Court granted him visitation rights that allowed him to spend about two weeks in Japan and 30 days in the United States with his daughter every year through August 2017.

The mother, however, said such requirements would be "a significant burden" for her daughter and appealed the ruling, her lawyer said.

To deal with the increasing number of cross-border cases involving children abducted by their parents after international marriages break up, the government in May decided to join the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which sets rules and procedures for the prompt return of children under the age of 16 to the country of their habitual residence.

Japan is the only member of the Group of Eight industrialized nations that has yet to join the accord. The domestic legal system adheres to the principle of sole custody. The courts almost always award custody to the mother, and it is not unusual for a father to lose all contact with a child after the parents divorce.

But the Nicaraguan said he doubts his case would have been resolved smoothly if Japan already had ratified the pact, saying his ex-wife "would have used one of the so-called Japanese exceptions for the Hague," referring to her claims of spousal abuse.



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