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Getting A Travel Restraining Order Outside Japan
<<notes from an email exchange -- needs to be cleaned up. I hope
to turn this into a HOW kind of document.>>
> I am currently go through a divorce from my Japanese
> wife. I started off by trying to keep things as
> amicable as possible, and I thought we had agreed to
> file for joint legal. But when I was filed with papers
> it stipulated sole legal and physical custody to her.
> I asked her why she had gone back on her word and she
> said if she allowed me even legal custody, then I
> could stop her going back to Japan whenever she
> wanted.
Actually, you can stop her even if you do not get any kind of custody at all. I
have worked with a couple people in court already who were able to do this. You
may want to let her know that there is no way she can prevent this if the courts
want to impose such a restriction. Or you may want to not tell her this in
advance, and bring up her change of heart as a reason you suspect she might want
to abduct your child.
> Although I would LIKE to think my wife could never do
> that, I think I would also be a fool to actually
> believe that. And therein lies my conundrum, what to
> do about the possibility that she absconds with the
> kids ?
The following page has a list of US State laws specifically designed to help
people in your situations. If you can establish a reasonable amount of
evidence that she might do this, then you can get such an order. For example,
threats to do so, lack of financial ties to the US, etc. Read about it here:
http://www.crnjapan.com/foreign_law/usa/
We also have a growing list of useful non-Japanese family law cases, which you
may be able to use.http://www.crnjapan.com/foreign_law/usa/en/
Actually, one of your best weapons may simply be the fact that Japan has not
signed the Hague Convention. Reports are that if you can educate a judge,
custody evaluators, etc about the situation in Japan, then they will consider
lack of signing the Hague significant enough in itself to issue restraining
orders.
> For now she is restricted from leaving California by
> virtue of filing for divorce with the court. But as
> was demonstrated by recent postings relating to a
> Japanese woman with an up and coming court battle in
> LA. If my wife really wanted to, she could flee the
> country at any time before or after going to court.
Have you read about how to prepare for this possibility now? There are things to
do, such as gathering information and submitting an anti-divorce form in Japan
to the gov office holding her koseki.
> My questions are therefore :
>
> 1, Does anyone know if the CA court considers this
> flight risk ( to a non Hague Country ) when deciding
> the divorce ?
Not sure about the divorce itself, but more important is the issuance of travel
restraining orders. See above.
> 2, If they do, do you have to have actual proof that
> the other parent may abscond with the kids ? That is ,
> it's not enough to say that she might.
See above. Read the Sinclair/Cannon act then ask again.
> 3, What kind of proof would be sufficient ? Or do you
> have to play the high risk game of actually catching
> them in the act :(
>
> 4, I have read mention of making parents post a bond
> and sign a statement saying that they promise to
> return from short trips to Japan. But it seems that
> from one case documented on the CRN website at least ,
> the bond was a few thousand Canadian dollars ?? and a
> beat up old car ?? Of course it didn’t stop the
> Japanese spouse absconding and never coming back.
Yes it is hard. But the US is starting to implement exit controls at airports.
If you get the restraining order and then get right information to airlines and
to immigration (perhaps homeland security) you should have a good chance of
stopping them.
There is simply no good way to ensure they will come back once they have left.
So prevention is the key.
> So what would be sufficient ? A few hundred thousand
> dollars and loss of all future Child Support ? Or
> should a legal agreement under Japanese Law be sought
> ?
Once she has left, and you have criminal charges in place, it should be possible
to get child support canceled anyways, so that is not a great additional
precaution. But it would be good to get legal anyways, to avoid confusion later.
Ideally you want to put things in place both in Japan and in the US, since the
issues in each place are different.
Here are some more ideas:
1) Legal agreement that sole custody passes to you should she ever not return on
schedule. This makes it easier/faster for you to get the arrest warrants issues,
Federal kidnapping charges issued and then support from Interpol to arrest her
in other countries.
2) Next best thing is to convince a judge to force her to give you sole custody
in Japan, even if she has joint custody in the US. (Or better yet that you had
sole custody in the US if you want to go that route.) A good argument is that
since Japan does not support any kind of joint custody at all, the only way you
would have any rights in Japan is with sole custody. This should be a
pre-requisite for finalization of the divorce in the US. (Get an official copy
of her koseki yourself, before you believe it.)
You probably need to arrange the custody in Japan carefully, and
simultaneously with the divorce in the US. Im not sure if you would do this
using the divorce by mutual consent form (which could negate the proceedings of
the divorce in the US I suppose) or with a separate custody transfer form. There
is such a form. It could also be done by registering the US divorce in Japan,
and declaring your sole custody at that time, but that would have to be after
the US divorce was final, which means you would have no leverage to make sure
she did the right thing. (Although I suppose there is recourse in the US if she
did not.) Get familiar with how to get copies of her koseki so you can check all
these things yourself. (This will save a lot of money over having a Japanese
lawyer do it for you, which is not at all necessary. You may even be able to do
it thru the Japanese consulate/embassy in the US.
Also, be sure to break your child off on his/her own koseki in Japan. Get
him/her away from the mother's koseki. This is legal and very doable once you
have sole custody in Japan. This is no guarantee, since Japanese Family courts
are biased against foreigners. But sole legal custody in Japan plus being on a
separate koseki might also give you a small chance to get your child back if she
took him/her and if you then acted decisively and quickly after it happened.
3) Let her know that if she abducts your child, her relatives can be denied
visa's to the US. Put this in the agreement so that is no question that she
knows it. Again, it may help you get this done quickly if necessary. This is
best if she has immediate relatives with a job that requires travel.
> The cons I see of both these are ( are there any
> pros?? ) :
>
> a, If you make the bond too large, the spouse could
> never realistically raise it and so could never return
> to Japan. Further increasing the sense of desperation
> and so making the possibility of absconding even
> higher ( I believe in “Where there a will ther is a
> way “ ).
Yes, thats a case by case thing. She might be able to get help from the
relatives in Japan that she wants to go visit. Or how about making part of the
financial resolution of the divorce the bond? For example, assuming you are the
one paying her. If you are giving her a house, keep the house in your name, or
at least a joint name, with the legal agreement that if she left, it falls to
you.
In the end, it often seems to be about money. So finding a financial lever can
be effective in some cases.
I also remember a father who had it as part of his agreement that the wife
needed to call him at a certain time every day and let him talk to the children.
Something like that. At least it made sure that they were still in the US.
Perhaps the child was also old enough to confirm his/her location. (Cant
remember.) Unfortunately, you will have to be vigilant for many years.
> b, Considering the Japanese Law systems reluctance to
> intervene in Family disputes, would even an agreement
> drawn up by a Japanese Lawyer, under Japanese Law be
> enforceable ?
Good question, with answer unknown. Your best bet in Japan seems to be to keep
everything financial. Impose daily financial penalties for every day she keeps
the child in Japan past any scheduled return date. This would be tricky to put
together in a legally enforceable way, but if you have the resources to work
with a Japanese lawyer to do this, it is worth a try. I have heard of some
successes in extracting monetary fines for refusal of visitation in Japan.
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