The following is a translation of the most relevant portions and key points (introduction and final conclusion) of the Shizuoka District Court Decision Heisei 10 (wa) #548, in which a father was able to win a 5 million yen judgment against his former wife for emotional distress over her refusal to allow him visitation with their son.

This case is powerful in two ways. First this is a proven strategy that could be used to pressure a spouses into allowing visitation. Second it is a prototypical example of the ineffectiveness of the Japanese courts at enforcing visitation, since in the end, we have been told by a non-official source, the father was paid the money, yet has not been able to see his son. Reportedly, this was payable over a stretch of 20 years in monthly installments, so the real burden on the mother was small, and likely viewed simply as an unavoidable but bearable cost necessary in order to continue restricting access to the child. For more information on this topic see the essay on Japanese court orders for visitation are not enforceable.

While the opening summary and final conclusion are a direct translation, the lengthy middle sections of the eight page legal document are included in a summary paraphrase form. The words "plaintiff" and "defendant" have been replaced with "husband" and "wife," respectively, to make things easier to follow.

Translation & Summary by Scott T. Hards (scott AT hlj.com) of Hobby Link Japan, January 20, 2004, who is happy to answer any specific questions about the case that this translation doesn't make clear, or regarding the administrative notations and perfunctory text that have been omitted from the translation (such as references to documents not available).

The complete Japanese language court decision is here.

Decision handed down by the Shizuoka District Court on December 21st, 1999

VERDICT

The wife is to pay the husband 5 million yen plus interest calculated at 5% until the complete sum is paid, beginning with the day following the delivery of this verdict.

The wife is to pay all court fees.

REASONS FOR THE SUIT

I, A) The couple was originally married on November 4th, 1992, but divorced by mutual consent on June 3rd, 1998.

B) On January 28th, 1994, a son was born to the couple. Following the divorce, custody of the son was given to the wife.

II, A, 1) While married, the couple had lived together with their son in an apartment in Hamamatsu, but on July 25th, 1995, while the husband was at work, the wife unilaterally took their son and moved back into the home of her parents. The couple has lived apart ever since.

2) Following the separation, both the husband and the wife filed petitions for mediation with the Shizuoka Family Court in an attempt to resolve their differences. The wife demanded a divorce; the husband requested Family Court mediation to resolve their differences and return to living together. Neither of these negotiations were successful.

3) In addition, the husband had not been allowed see his son for a long period following the separation, and in December of 1995 filed another petition for mediation with the same Court to achieve visitation with his son. This mediation was declared a failure on July 9, 1996, and the process moved to a court decision. During this period, the husband was able to see his son only once during a mediation session at the court.

B, 1) Next, the wife filed a suit for divorce on July 17, 1996. This was eventually settled out of court and mediation resumed with the wife to arrange visitation for the husband during 1997. During late 1997 and early 1998, the husband was able to meet his son three times, two of which were either in the court house, or with court personnel present.

2) The husband, following the separation, had consistently requested visitation with his son but his wife's stubborn and unrelenting attitude resulted in his visitation being severely restricted and his rights as a father being infringed.

C) During the prolonged conflict with his wife, the husband listened to the advice of his counsel and the courts and mediators and agreed that as long as visitation with his son was guaranteed that he would accept a divorce. With that in mind, he entered into a mutual consent divorce with his wife, dated June 3, 1998.

As part of the agreement for the divorce, the husband was to be granted the right to see his son once every two months for two hours, and the wife was to work to arrange to bring the son to agreed locations at agreed times. Note that the husband had demanded visitation once per month, but his wife refused, so he agreed to the once every two months compromise.

D) Following the divorce, the husband, through his lawyer, arranged for a meeting with his son on July 30, 1998 at a park in Hamamatsu. However, the wife did not bring the son to the park at the appointed time. In addition, the wife ignored the subsequent court warning to comply with the agreement.

III, A) Demanding to see his son is the husband's obvious right as the boy's father and completely understandable given that his son was just 1-1/2 years old at the time of the separation, and now a growing five-year old. If visitation, which helps foster the boy's recognition of the husband as his father, is denied, the father's rights are undeniably violated.

As the wife has forcefully separated the boy from his father, continued to impede visitation and even refused to follow the warnings of the court, Minpo (Civil Code) Sections 709 and 710 impose the obligation to pay damages upon her.

B) When one considers the limitations and obstacles the wife erected to visitation, the efforts by the husband to overcome them, and the fact that the wife has been able to meet with the son every day, 5 million yen can be called a reasonable sum to compensate the husband for his emotional distress

IV) As such, the wife is to pay the husband 5 million yen plus interest calculated at 5% until the complete sum is paid, beginning with the day following the delivery of this verdict.

THE WIFE'S RESPONSE AND ARGUMENTS

From the middle of page two to almost the bottom of page three, the wife's counter-arguments and explanation to the points made by the husband (and echoed by the court above) are covered. These are arguments that were filed before this verdict, but which are repeated in the final text.

She makes two principal arguments: (1) Her husband was violent and frightening following an argument at the end of a family outing on July 22, 1995 and following this incident (the proverbial straw that broke the camel's back) she became convinced that she could no longer live with him. Hence, a few days later she took her son and returned to her parents home. (2) She failed to keep her promise to take the son to the park for visitation because her husband failed to keep his promise to make a 300,000 yen payment for a tuition savings plan for their son directly to her rather than directly to the post office (her logic being that when the funds were eventually withdrawn by her, she'd have to pay income and/or gift taxes on this money since she hadn't originally paid it herself).

THE COURT'S REASON

From the bottom of page three to the upper third of page five, the court launches into a surprisingly deep, philosophical essay where it describes and analyzes the role of the family on the psyche of the individual in modern society. It asserts, in a statement of the obvious, that it's best for two parents to work together to raise a child, and that even when a family is separated by divorce, that it's the child's fate to maintain two separate relationships with each parent for the rest of their life. It concludes that even when one parent's legal role as a guardian for their child is ended by divorce that they should be granted visitation as a base for continuing their care for their child.

Next, from the upper third of page five to the lower third of page seven, the court lists numerous anecdotes from the life of this husband and wife which serve to establish the wife's pattern of selfish, erratic behavior. Highlights include:

* Her waking up suddenly in the middle of the night, spouting random lines like "So you never wanted to marry me after all," or "So you're going to leave me, right?" and then falling back to sleep, with no mention of these outbursts the following day.

* Her refusal to go to his parents house after a family outing to gather wild vegetables. Since they were able to find many, he wanted to give some to his parents and headed towards their house. She insisted that he drop her and the baby off at home and go alone. When he protested that it would be just a quick stop, she asked him to stop the car because she wanted to get out if he was going to his parents house. When he stopped the car, she got out and took their son. He tried to pull the baby away from her, but when the baby started crying, he gave up on going to his parents' house and they headed home (she left him three days after this event).

* His finding a secret stash of 400,000 yen while searching for the cash card she would never return to him, and her refusal to tell him what it was for "since it's none of your business, as I have the rights to half of it."

* At a court mediation session when their son was present, not only did the wife refuse to identify her husband to her son as his father, but when the husband attempted to give him a toy car, his wife warned her boy "not to accept things from strangers."

In the bottom third of page seven, the court begins its damning conclusion (translation, with some details omitted):

(A) Following marriage, the couple began living in an apartment independent from either of their parents, the ideal foundation for developing a new family. In addition, the husband frequently assisted with housework and other chores, particularly when the wife was pregnant.

(B) On the other hand:

(1) The wife was a single daughter and has a very immature personality, with a short temper that's quick to make extreme statements. The evidence shows how this caused problems for the husband.

(2) The wife frequently returned to her parents home, and whenever something happened that she didn't care for, she'd storm out of the house without announcing her destination. There is evidence that she harbored great hatred for the husband's parents.

(3) Although household finances should be openly discussed by both partners in a healthy home, the wife kept much about their money a secret and frequently broke her promises.

(4) Her making frequent paranoid and mistaken assumptions is also part of her personality. For example, her suspecting that a trip to the doctor was really a trip to see his parents, or that his moving one of their cars to his parents house was a malicious ploy to inconvenience her, even though he had explained that their landlord had complained and ordered them to move one of their cars off the lot (as they were only entitled to one space).

(C) (1) Based on this, one can conclude that the wife's ties to her parents are overly strong, and that her behavior is primarily caused by her having reached adulthood with an immature personality. This conclusion is also supported by the attitude displayed by her parents towards the husband following the separation (such as her mother's locking the door on him, or her father's shouting "We've nothing to say to you, idiot" or "Go home, get out of here" when he came to visit).

(2) The wife's actions to distance the son from his father even at the court-sponsored mediation sessions demonstrates a very lamentable attitude, that of willingly depriving her own son of an opportunity to develop his sense of "father" which, like that of "mother" is a key part of any well-formed personality.

From the time he is born, a child has a personality and psyche unique from that of his parents and his own life to lead. He is not the private possession of his mother.

(D) In addition, it must be said that the other statements made by the wife lack credibility on numerous fronts.

(2) Based on this and a review of the circumstances of the mediation sessions prior to this case, the wife's decision to leave her husband cannot be described as stemming from her husband's selfishness as she asserts, but rather from the wife's own immature, parent-dependent personality which ignores the needs of the family, fails to think deeply about what it means to raise a child, and is in itself deeply selfish. Her attitude is nothing more than an attempt to transfer her own responsibility for events to her husband, and her attempt to use the separation as the reason for denying visitation is utterly unacceptable by this court.

In addition, the wife asserts that the divorce settlement stipulated the husband's payment of 300,000 yen into the tuition savings plan be made to her rather than to the institution directly. However, not only does the documentation not support this, but even if she had to pay additional income or gift taxes of some 10% or so due to this, that minor financial burden cannot begin to compare with the vast importance of helping establish a well-formed image of fatherhood in the mind of her son, and her reasons related to this cannot be accepted.

IV) In conclusion, the wife's unrelenting refusal to grant visitation to her husband, despite the fact that it is his natural right as a parent, and despite the fact that there were no threats to the son's well-being from this visitation, is, when considered together with the facts above, the circumstances of the refusal, and the wife's attitude, emotional distress for which damages of 5 million yen is reasonable compensation.

Judge: Tetsuro So