When Children Get Caught Up in Separation


Eye-Ai, Eye On Society Magazine, June 2004
Jonathon Walsh

With the increasing number of international marriages in Japan, an increase in the number of separations and divorces is, while unfortunate, not unexpected. Even more distressing, however, is that more and more children are affected by these separations. In this report with some of the people who have experienced difficulties relating to child custody issues and also with an organization that attempts to bring parents and children together even after a divorce, Jonathon Walsh found that there are many disturbing aspects to these complex cases.

Cultural expectations differ after divorce

The majority of foreign spouses expect joint custody when a relationship collapses. However, under Japanese law this option is not possible. One parent, and one parent only, takes physical custody of a child. When foreigners realize this, it is often too late and can be a very painful slap in the face. At the heart of this issue is the historical and common expectation among many Japanese that a non-custodial parent should simply vanish from sight – whether they are Japanese or foreign. Much to their astonishment, foreign spouses in Japan frequently not only lose custody, but then they completely lose access to their children as well. Many older Japanese believe that it is better for very young children not to see the birth parent after the custodial parent remarries, in order that the children will develop a gnaturalh relationship with their new parent. So in the rare cases that there are meetings between the non-custodial parent and his or her children, these often stop when the Japanese parent remarries. 

Unlike joint-custody, visitation is permissible under Japanese law, but not required. So when visitation is granted by a court, even for a Japanese parent, it is usually very short. Often the parent is limited to several hours each month in a gfamily restaurant,h and frequently just several hours per year. If a court does grant visitation rights but the custodial parent is repeatedly uncooperative, then neither the police nor the courts will enforce them.

According to Ministry of Health, Labor and Welfare (MHLW) statistics, during the five years from 1997 to 2002, divorces in Japan rose 30% overall, and international divorces between a Japanese and a non-Japanese citizen were up 66%. With this kind of growth, custody and visitations complaints are sure to grow as well. And with the divorce rate in Japan approaching that of many Western countries, vocal groups of Japanese citizens asking for joint custody legislation have emerged. One of these groups, gFatherfs Website,h operates an Internet site to disseminate information and is dedicated to advocating and lobbying for legal changes.

The Children's Rights Council of Japan (CRC) is working to restore the rights of children in Japan subject to parental separation. They want to assure these children of meaningful and continuing contact with both parents and both extended families, regardless of the parents' citizenship or marital status.

CRC Japan Secretary, Mark Smith, notes that the United Nations Convention on the Rights of the Child obligates Japan to grespect the right of the child who is separated from one or both parents to maintain personal contact with both parents on a regular basis.h He claims that in many cases compliance with this obligation is not being observed.

Foreign spouses protest

Increasing numbers of foreign spouses have been loudly protesting against these conditions in Japan and some have spent hundreds of thousands of dollars on court cases, flown back and forth between their home country and Japan and have even faced arrest – to get their children back.

The only legal course of action for parents is the Japanese Family Courts. The problem is that these court procedures often take years, during which time the parent without physical custody, usually the foreign parent, is unable to see their child. This establishes a new gstatus quoh that the Japanese Family Court then deems to be in the gbest interestsh of the child. Both Japanese and foreign parents routinely claim that the Family Court ignores other important factors in their decisions, such as mental instability, spouse abuse, and even child abuse. Non-Japanese parents often interpret this as a racial bias in the courts.

gThe only way I can think of to describe the situation in Japan is to call it elegal de-facto abduction,fh says Smith. gOne parent, with the help of the Japanese courts, can prevent the other parent from any kind of meaningful contact with their child for up to 20 years,h he says, hinting at his own case of being denied contact with his son in Japan for the last two and a half years. gBut with all due respect, how much better is it when a parent knows that the outcome of a court battle, all the way to the Supreme Court of Japan, would be hopeless?h

Fathers claim gender discrimination

MHLW statistics also tell that there were 21,631 children born out of wedlock in 2002. But some of these children have been cut off from their fathers, despite the fathersf professed desire to see them and even to pay child support. This is because article 819 paragraph 3 of the Civil Code of Japan, by default, gives sole custody of a child born out of wedlock to the mother. According to Smith, this is clear gender discrimination in violation of the United Nations Convention on the Rights of the Child, in violation of the Japanese Constitution, Articles 14 and 24, and against the basic tenets of Japanfs Law for a Gender Equal Society. Other MHLW statistics covering custody cases in Japan, the majority being between Japanese only parents, point out that the mother gains custody of the children about 80% of the time.

International cases

When one parent takes a child out of one country, with the intent to prevent contact or deprive the other parent of custody or visitation rights, most governments call it International Parental Abduction. Several nations are known to have outstanding international arrest warrants for Japanese citizens accused of parental abduction in that country. Yet despite broad international agreement on this definition, Japan does not consider it to be a crime when a Japanese citizen returns to Japan with a child under just these circumstances. 

In this age of easy international air travel, countries around the world recognize how complex parental abduction can become. So they created an international treaty, called the Hague Convention on the Civil Aspects of International Child Abduction. This Convention brings some uniformity to the handling of such crimes when they cross international borders and is designed to help return an abducted child to its place of habitual residence. Japan has yet to sign the convention, probably because doing so would entail overhauling many domestic laws and procedures.

The woman interviewed agreed that her name and photograph be used, but to protect privacy, Eye-Ai editors decided to maintain her anonymity.
When Ms. Y, a Cuban-born Chilean woman, met a Japanese man in 1998, she thought everything would turn out just fine. In December 2000, they were blessed with a beautiful daughter, who was born to them while they were living together in Chile. The husband was transferred back to Japan in September 2001 and Ms. Y was the sole caretaker for the daughter until January 2003.
Soon after, the relationship between the couple broke down. In December 2002, Ms. Y temporarily entrusted the daughter to her parents' care in Cuba. In January 2003, the husband traveled there, accused Ms. Yfs parents of abducting the baby and managed to take the daughter back to Japan before Ms. Y could get back to stop him. Once there, gcwithout my presence, knowledge or consent, the husband forged my signature on a divorce form, granting himself full custody and rights over my daughter, in clear violation of national Japanese laws and regulations,h Ms. Y recounts. Ms. Y then came to Japan with the hope of regaining custody of her daughter. Under Chilean law, Ms. Y has legal custody as the mother of a child whose parents have separated, but this ruling is not recognized under the Japanese legal system. The husband remarried a Japanese woman in October 2003 and his new wife has legally adopted the daughter as her child.

After much pressure, and fifteen months since the abduction, Ms. Y managed to spend only one and a half hours under court house supervision with the daughter. Ms. Yfs rights as a foreign parent in Japan, without a visa to remain on a long-term basis, are limited. She may be forced to leave Japan but plans to continue to fight for her daughter and her own parental rights. Ms. Y vows she will never give up.

Are there solutions?

Among the proposed remedies to childrenfs rights issues in Japan proposed by CRN Japan are recognizing foreign child custody orders when a Japanese parent has illegally removed the child from the foreign home, creating laws requiring adequate court ordered visitation for non-custodial parents, creating a non-custodial Parent of Japanese Child visa category, and signing and ratifying the Hague Convention on the Civil Aspects of International Child Abduction. While shared custody and joint visitation rights are certainly not the norm in Japan, more Japanese are starting to question the wisdom and justice of this system. Coupled with the ever-increasing numbers of Japanese entering mixed-culture marriages, more and more foreigners are also raising the alarm. The situation has reached the point where even foreign courts and governments have entered the fray, urging Japan to adopt international standards of children's rights.

The Children's Rights Network of Japan (CRN) is working to restore the rights of children in Japan subject to parental separation. They want to assure these children of meaningful and continuing contact with both parents and both extended families, regardless of the parents' citizenship or marital status.
For more information, please see: www.crnjapan.com
E-mail: info2004 [at) crnjapan.com
Father's Website is a Japanese non-profit organization working to modify the Japanese Civil Code to conform to the UN Convention on Children's Rights. They support the enactment of joint custody and visitation policies. In addition to fathers, their members include left-behind mothers and custodial parents.
For more information, please see: www.fatherswebsite.com