Japanese court orders for custody are not enforceable

Because of the emotional and adversarial nature of divorce, custody and visitation disputes, the parent with physical control of a child will often actively oppose a court order. Japanese courts do not have contempt powers nor marshals empowered to physically enforce custody orders, and Japanese police will not typically enforce non-criminal court orders.  So even if court orders for visitation are issued, they cannot be enforced.  The parent with physical control of a child is usually successful in denying changes of custody. Further, there are also cases of the non-custodial parent kidnapping the child, and still the court will not grant habeas corpus (restore the child to the custodial parent) unless there is physical danger to the child.  This occurs to both Japanese and non-Japanese parents alike. The abducting parent often gets custody "by default." 

One example of this is Samuel Lui's case in the Osaka District Court system.  (**get exact reference**) The Japanese mother had physical possession, and continued to deny Sam's custodial rights. At no point, even two years later after the Supreme Court validated Sam's custody, would a Japanese court or the police return his son. His request for habeas corpus (physical removing the child from the control of the non-custodial mother) was denied.  The intractability of the situation eventually forced Sam to give up custody in exchange for an unenforceable visitation agreement.

Japanese courts thus sometimes use other options available to them, such as the per diem penalty used in Shizuoka District Court case H10 (WA) #548 (ID #00100337) on December 21, Heisei 11. Ostensibly, the goal is to ensure that the retaining parent changes their behavior. But if per diem penalties are not set high enough, as may be the case so that they do not prevent the parent from providing necessities for themselves and the child, they may be viewed simply as an unavoidable but bearable cost necessary in order to continue restricting access to the child.  Thus, as in this case, the estranged parent may receive monetary payments, but still never get to see their child.  In other cases, a Japanese parent may simply hide their assets by transferring them to relatives or changing banks.  The former strategy may allow the retaining parent to avoid monetary penalties altogether by declaring bankruptcy. The later may make it impossible to collect the judgment, since like enforcement, courts have little power to investigate personal financial details and unless debts are massive, are generally reticent to declare personal bankruptcies.  (This media story gives one prominent example of someone who has avoided multiple court decisions and fines for many years.)

Documented Cases

• "...the Osaka Family Court rendered a mandatory visitation schedule: since I was the custodial father, I am entitled to see my son once a year for 3 hours." Samuel Lui's custody of his son was affirmed by the Supreme Court of Japan, yet the Japanese legal system was not able to physically remove his son from his ex-wife.   Read more...

Solutions We Want To See

• Courts must be given effective tools to enforce judgments of visitation and custody.  These could include the ability to jail a custodial parent on charges of contempt, court marshals, or the ability to compel Japanese police to act on their behalf.

• Courts should keep in mind that the goal of monetary fines is to ensure that the retaining parent changes their behavior. Therefore per diem penalties must be set high enough so that they are not viewed simply as an unavoidable but bearable cost necessary in order to continue retaining or restricting access to the child.

• Courts must be given effective tools to investigate the financial assets of parents who have been fined.

Articles

• Operator of notorious bulletin board lost in cyber space; AERA (translated from Japanese and published by Mainichi Daily News); October 10, 2006.  Although not related to family law, this article is about Hiroyuki Nishimura, the 29-year-old webmaster of Ni-Chaneru who has lost numerous lawsuits and been order to pay 10's of millions of yen. By ignoring court orders and hiding financial information, he illustrates clearly how difficult it is to enforce any civil court ruling in Japan even a monetary one.  You can just refuse to pay and it's rare for a creditor to be able to convince a court to declare individual bankrupt in order to be able to appoint a receiver to look into someone's financial affairs.  (cached copy)