June 10, 2012
In February, 61-year-old Masahiro Yoshida was arrested for “abducting” his 7-year-old daughter from her elementary school in Ehime Prefecture the month before.
It marked the second time that Yoshida, a former professional jazz drummer, was driven to desperation and snatched his daughter, since his ex-wife has parental custody over his daughter, and he is not allowed to have any contact with her.
In Japan, courts do not recognize shared custody, and mothers retain custody in about 90 percent of court-mediated divorces involving minors.
In response to mounting criticism that Japan is a safe haven for parental abductions, the government finally submitted a bill to ratify the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which provides for the return of unlawfully abducted children.
The legislation is unlikely to pass in the current Diet session, as deliberations of controversial bills to hike the consumption tax are taking center stage. But if enacted, the convention, which has 87 signatory countries, will mandate that Japan return children whom its nationals took from other countries in a divorce, unless it harms the child’s welfare.
The public’s perception in Japan is that such post-divorce disputes are taking place only between Japanese mothers and fathers from Western countries. But many Japanese parents now claim that the justice system here is equally tormenting those who lost custody over their children following a divorce.
The case involving Yoshida has much in common with the well-publicized arrest of an American man in 2009 after attempting to abduct his son and daughter and flee to the U.S. Consulate in Fukuoka.
According to Yoshida’s mother, Michiko, an 87-year-old former liquor store operator in Yokohama, it was her daughter-in-law who “abducted” her grandchild five years ago in an attempt to gain parental custody.
Michiko’s son is currently on trial at the Matsuyama District Court.
As Masahiro is likely to be given a prison sentence this time, Michiko said there must be fundamental flaws in the country’s justice system, which made her son a “criminal for just wanting to see his daughter.”
IS “GAIATSU” LAST RESORT?
In a nearly identical case, former family court judge Masanori Watanabe, 53, was arrested for abducting his daughter, then an elementary school third-grader, from a train station in Fukuoka in October 2005.
Watanabe, then a Yokohama-based lawyer, was subsequently given a suspended three-year prison sentence, dismissed from the bar association and cannot practice law.
“I certainly knew the consequences, but I thought it was my last opportunity to persuade her to come back to me when she becomes old enough to make her own judgments,” Watanabe said.
While waging court battles to gain custody of or visitation rights to their children, Yoshida and Watanabe campaigned for the Hague Convention, which they thought would help their causes.
“The convention means Japan’s last chance to review its cruel tradition to completely dismiss one parent’s right over children after divorce,” Watanabe said. “It is also my last resort to clear my name as a kidnapper.”
While the convention does not directly affect Japan-based families, Japanese and foreign parents here who lost custody pin hopes on their hopeful “gaiatsu,” or foreign pressure, scenario.
Lawyer Mikiko Otani, a member of the Legislative Council of the Ministry of Justice on the Hague Convention, said ratification will bring positive changes to the family courts here, which will examine and rule whether to return a child in accordance with the convention.
The family courts will need to examine and rule on what types of child-taking are unlawful and what serves as the best interest of children in ways that are convincing to foreign authorities.
If the expatriation of children becomes a common practice, courts need to break free from traditional reluctance in using force in family conflict cases. It will discourage parents from simply taking away their children, even by force, as is widely occurring today, she added.
“Ultimately, Japan will need to approve a form of shared custody, which is the norm in most of the countries that are signatory to the convention,” Otani said.
But gaiatsu inevitably draws a backlash. To the relief of Japanese parents who flee with their children from overseas, the proposed domestic legislation to set court procedures for a child’s repatriation sets strict criteria for judges to do so.
The vaguest and most potentially controversial clause among the six requirements is that courts need to ensure there will be no possibility that the concerned child suffers “physical or psychological” abuse once returned.
“Can courts expatriate its nationals, minors, over public opinion? I don’t think that can happen,” said a Japanese mother who fought a lengthy, exhausting court battle in Australia with her ex-husband over custody of their two children.
BACKLASH FOR CHANGE
Interestingly, parties opposing the convention, and moves that can lead to the idea of shared custody, include both those from conservative and liberal camps.
Conservatives say that the single custody system is vital to maintaining the integrity of “koseki,” or Japan’s family registry system.
Kensuke Onuki, a lawyer who has represented Japanese mothers who have brought their children to Japan, agrees that one of the divorced parents must back away, in order to make a child’s new environment more stable.
“I don’t think many Japanese can stand the Western way of communication between children and their divorced parents, in which both parents participate in their children’s growing-up process,” Onuki said.
A head of a parents’ group seeking visitation rights said that even many of its group members, mostly fathers, will find it too burdening to fulfill shared custody, given the limited roles they played in child-rearing before their divorce.
Recalling his days on a family court bench in the mid-1990s, ex-judge Watanabe expressed regret that he and his colleagues had no doubts that it serves the interests of children to grant custody to their mothers.
He added that judges believe that courts must respect women’s parental rights, because it was historically denied to them and they had to gain them through postwar feminism.
“I also remember my boss telling me that the court should give men a ‘free hand’ to start a new life by eliminating responsibility to raise their children, and I really did not find much wrong with it,” Watanabe said.
“Now I know how painful, how cruel it is for a parent, regardless of the mother or father, to have their access denied.”
Watanabe added that he knows that the signing of the Hague Convention may be just the beginning of change for Japanese society.
“But I won’t give up, because this is the only way left for me to show my love for my daughter,” he said.
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