Educating Judges Outside Japan and Identifying Risk Factors for Parental Abduction

When in court outside of Japan, if the judge has not encountered a case concerning Japanese parental abductions or Japanese family law before, they may find the situation hard to believe.  You may realize this when you hear them say how reluctant they are to require supervised visitation or to restrict travel to Japan.  (Your own lawyer may even find this hard to believe, but in that case, you should consider finding a new one with experience in Japan related cases.)  In this case, one of your biggest challenges will be to educate the judge on issues such as the following.

• You could absolutely lose not only custody of your child, but lose all contact with your child should he or she be taken to Japan. 
• Japanese family courts are biased in their decisions involving a foreign parent vs. a Japanese parent. Not only do they almost never recognize foreign court orders concerning child custody, visitation and other matters decided outside of Japan, they will assume jurisdiction and issue their own contradictory orders based on a new post-abduction status-quo in Japan.
• Japanese family courts cannot even enforce their own orders, much less the occasional foreign court order that they may recognize.

Although there are many other family law problems in Japanese law and courts, these issues directly challenge the authority of the court you are in.  Thus they are important arguments if you are asking for supervised visitation, trying to prevent a Japanese parent from getting custody of your child, trying to obtain travel restraining orders, asking for denial of a request to relocate with your child to Japan, or trying to initiate other preventative legal measures against a Japanese parent.

Be prepared to show the court why prevention provisions are needed. Focus arguments on three factors (1) the risk of abduction and any threats or other indications by the Japanese parent that they might abduct; (2) the potential harm the child would likely suffer if abducted; and (3) obstacles to locating and recovering the child if an abduction were to occur. When the risk of abduction is high, the child is likely to be harmed, and obstacles to recovery exist that would be difficult to overcome, strict preventive measures are needed.

<TODO: Rewrite last paragraph to give more info on each factor.>

Japan Specific Materials

• In the Best Interests of the Court: What American Lawyers Need to Know about Child Custody and Visitation in Japan; Colin P.A. Jones; Asian Pacific Law and Policy Journal, University of Hawaii; Volume 8, Issue 2, Spring 2007.  The first sentence is "Japan is a haven for parental child abduction."  This may finally be what you need to convince your lawyer or a judge of  the fact that you and your child's rights could be violated simply by allowing a parent to take your child to Japan to visit, much less to relocate. (cached copy)

• Letter to Left Behind Parents and other US State Department evidence - This page documents evidence from the US State Department which may be useable in a US or other court of law to help you obtain supervised visitation, travel restraining orders, denial of a request to relocate, or other related court orders against a Japanese parent.

• Marbury v. Madison and The Matrix: What Child Custody and Visitation in Japan Show us about the Japanese Court System - Written by a western lawyer who is fluent in Japanese, this is the best overview available of the problems with Japanese family law.  Published on the website of the Australian Network for Japanese Law.

• Case law precedents concerning a Japanese parent in a non-Japanese court - This listing is currently US centric, but if you have cases from other countries, just send them in for inclusion on this list.  This also goes thru a number of specific requests for protective measure that you can request from a judge.

• The United Nations Convention on the Rights of the Child and Japan’s International Family Law including Nationality Law - article by Yasuhiro Okuda from Hokudai Hôgaku Ronshû, Vol. 54, No. 1, 456 and based in part on a report regarding the Child Convention that the author prepared on behalf of the Japan Federation of Bar Associations.  Contains an excellent section on international child abduction and a frank discussion of the fact that Japan will basically do nothing to help parents and is unlikely to change. (cached copy)

General Materials on Parental Abduction

A study, Prevention of Parent or Family Abduction through Early Identification of Risk Factors, conducted by Dr. Janet Johnston (Judith Wallerstein Center for the Family in Transition) and Dr. Linda Girdner (ABA Center on Children and the Law), identified six personality profiles that may predict parents who may pose a risk of abduction. These characteristics have been written into various state laws of the United States.

• Parents who have threatened to abduct or abducted previously;
• Parents who are suspicious and distrustful due to a belief abuse has occurred and have social support for these beliefs;
• Parents who are paranoid-delusional;
• Parents who are sociopathic;
• Parents who have strong ties to another country and are ending a mixed-culture marriage;
• Parents who feel disenfranchised from the legal system (e.g., poor, minority, victim of abuse) and have family/social support.

You can obtain this study by contacting Howard Davidson, Director, ABA Center on Children and the Law, (202) 662-1740, or the Juvenile Justice Clearinghouse, (800) 638-8376. Two related articles may be found at: (1) Johnston, Janet and Girdner, Linda, Early Identification of Parents At Risk For Custody Violations and Prevention of Child Abductions, Family and Conciliation Courts Review, Vol. 36, No. 3, July 1998 392-409 and (2) Johnston, Janet R., L. Girdner, and I. Sagatun-Edwards, Developing Profiles of Risk for Parental Abduction of Children from a Comparison of Families Victimized by Abduction with Families Litigating Custody, Behav. Sci. Law 17:305:322 (1999).

• Early Identification of Risk Factors for Parental Abduction  (PDF).  Johnston, J. R., & Girdner, L. K. (1998). Family and Conciliation Courts Review, 36, 392-409.  A US Department of Justice document that is not specific to Japan, but is based on the results of four research projects designed identify the characteristics of abductors and their families and examine the effectiveness of interventions used to prevent or respond to child abductions.  Some of the information is relevant to international child abductions and abduction and retention within Japan. (cached copy HTML or PDF)

• The Epidemic of Parental child-Snatching: An Overview An overview of parental kidnappings, written by Hon. Mr. William Rigler, New York Supreme Court, United States.  It describes attempts to prevent parental child abduction, applicable US laws, and the Hague Convention.  In particular, there are personality profiles of the type of parent at risk of abducting their children.  (cached copy)

• Parental Kidnapping : Prevention and Remedies (Word doc); Patricia M. Hoff; Legal Consultant to the American Bar Association Center on Children and the Law; American Bar Association Center on Children and the Law; December 2000.   This document has a good section on how to educate a judge about the dangers.  There is also very specific advice for lawyers of the non-Japanese parent, cautioning them against taking the threat of abduction too lightly.  Show this document to your lawyer. (cached copy)

• Resources for Judges on International Parental Child Abduction - Although not Japan specific, this US State Department website contains a lot of materials that are useful for educating judges about the overall problem of international parental abduction and identifying risky situations and personality types likely to abduct a child.

• Parental Child Abduction is Child Abuse by Nancy Faulkner, Ph.D Presented to the United Nations Convention on Child Rights in Special Session, June 9, 1999.  (cached copy)

Press Articles

• Child custody in Japan isn't based on rules; San Francisco Chronicle; August 27, 2006.  A law professor discusses why institutional reasons rather than cultural ones are to blame for bad family law in Japan.  Much of Japan's family law is based on the need to cover up the fact that Japanese courts are powerless to enforce their own decisions.  It contains an example of culturally biased opinions regarding visitation made by a prominent "family expert" in a book on visitation, as well as descriptions of apparently mainstream anti-visitation opinions expressed by family court mediators.  Both of these, until now, were only available in Japanese. (cached copy)