US military Parent Successfully Avoids Japan Family Law

I was an active duty US service member, stationed in Japan. I was facing the prospect of returning home without my spouse and child- a stay behind abduction. When I read about the issues of Japanese custody laws, I realized if I left Japan without my son, I might never see him until he was an adult.

I spoke with a US lawyer, who correctly pointed out that under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), US courts should defer to Japan in any custody dispute. (The UCCJEA gives home state status to the state or country, any country, where the child has lived for the past 6 months.) The lawyer further stated that it would be fruitless to bring my son to the US and file for custody, since a US court would recognize Japanese jurisdiction, as we had lived in Japan the last couple of years. In my case he was wrong.

I was despondent when I heard this, but fortunately, I did not take his advice. I brought my son back to the US, and my spouse and I now are under a joint custody ruling in the US. Our state judge has forbidden our child to leave the state, and holds my child's passport (of course its no guarantee against flight).

In my opinion, the lawyer's advise was strictly correct, but impractical and poorly thought out. Here are the reasons why the UCCJEA may not apply:

- A US Judge may not consider the UCCJEA. International divorce cases are relatively rare, and the opposing attorney may not know about the UCCJEA. Also, the Judge may rightfully take offense at giving states rights to countries that are not signatories to the Hague convention.

- Under the UCCJEA, the US court should ask the home state if they want to take jurisdiction. It is not automatic. You should be able to achieve at least temporary custody, or temporary joint custody, until the home state has signified their intention to take jurisdiction. You will want to particularly point out to the court: The flight risk of your Japanese spouse. How Japan will not recognize any US custody ruling. That Japan does not consider the best interests of the child in having access to both parents.

- Japan may not take jurisdiction. Japanese courts are known to like the status quo, and if there is no child or opposing spouse in hand, are not likely to rule. Of course its essential that you impress on your US judge that it is imperative that the child not return to Japan, unless and until Japan signals their intention to rule on custody. Your spouse may have every right to appeal to a Japanese court for custody, but without the child in hand, I do not believe it is likely.

-  Japan apparently prefers to award child custody only through divorce. (Although there may be some exceptions.) A contested divorce will take a long time in Japan. Until then, you should be able to maintain your temporary custody ruling in the US. After the child has been in the US six months, a Japanese court is not likely to care.

The Status of Forces Agreement (SOFA) with Japan, section 9, states that

"Members of the United States armed forces, the civilian component, and their dependents shall be exempt from Japanese laws and regulations on the registration and control of aliens, but shall not be considered as acquiring any right to permanent residence or domicile in the territories of Japan."

The key statement here is that they do NOT maintain the right to residence or domicile in Japan while in Japan under the SOFA agreement (which is part of the Treaty of Mutual Cooperation and Security between the United States and Japan).  If you were in the military when you were in Japan, then you and your dependents were in Japan under the SOFA agreement, so you were not legally considered as having "residence or domicile in the territories in Japan". Your legal residence and domicile were considered whatever your home state is, and the same is true of your dependents.  The SOFA agreement should override the UCCJEA and is unique for military members stationed in Japan. 

I hope this is of some help. I am very thankful I was able to obtain my child's passport and return home with him. I am thoroughly disgusted that our State Department would essentially facilitate stay-behind abductions by refusing to repatriate minors who do not have passports.