International Family Law News & Analysis

Japan's Gov't Proposes Hague Convention Implementing Legislation

"Child-custody procedures proposed, but conditions apply"

- Asahi Shimbum 1/24/12 via Patrick Braden at Global Future

Everything in it sounds like straightforward appliaction of the Hague Convention, although one can guess that the Convention's exception to returning children who face a grave risk of physical or psychological harm, which is very narrowly interpreted in the rest of the world, could be used in every case where someone speculates that visitation after divorce is too stressful for children to deal with. The article says the legislation is proposed by "a subcommittee of the Legislative Council, an advisory panel to the justice minister". 

The government said it would also draft a bill for non-international cases, which would mean that all Japanese children of divorce would have the same opportunity for contact with both parents that the Hague Convention gives to internationally abducted children.

Court: Hague Convention is different from jurisdiction/enforcement cases

This new Colorado case does not break any new ground, but it helpfully discusses the difference between a Hague Convention child abduction case and a case about child cusotdy jurisdiction questions under the Uniform Child Custody Jurisdiction and Enforcement Act. The Hague Convention is not about custody jurisdiction, it's more like extradition. But that distinction is often lost when trying to make people understand the even more fundamental distinction between deciding the merits of custody and deciding about jurisdiction or abduction return -- which are "procedural" decisions, and yet all-important ones that can make the difference in whether justice is done,whether a child continues to have a relationship with both parents, and whether a child's custody is decided by a court with sufficient evidence to actually decide a case in the child's best interests. Even some U.S. Supreme Court justices who were supportive of the Hague Convention, in the oral arguments of Abbot v. Abbot,130 S.Ct. 1983 (2010) mistakenly described the Convention as being about jurisdiction.

In this case, "IN RE PARENTAL RESPONSIBILITIES CONCERNING T.L.B.", Colo. App. 1/19/12, a Vancouver mother abducted children to Colorado and the father immediately filed for custody in Vancouver. The father filed and lost a Colorado Hague Convention case for immediate repatriation of the children, but when the Vancouver court finally was able to investigate the merits of the case, it found that the mother had made false sexual abuse allegations, and it gave custody to the father. When he went to Colorado to enforce the custody order, the mother argued that jurisdiction over child custody had moved to Colorado when the father filed the Hague case there. The Colorado Court of Appeals responds to that:

23 Mother argues, however, that Colorado's subject matter jurisdiction to determine parental responsibilities for the children was established in father's Hague Convention proceeding in Adams County, and that because the children's return to Canada was denied in that proceeding, the trial court erred by applying the UCCJEA and finding that Canada, rather than Colorado, had jurisdiction. We are not persuaded. ... ¶ 27 We reject mother's argument, relying on the Supremacy Clause, U.S. Const. art. VI, cl. 2, that the Hague Convention proceedings preempted the trial court's UCCJEA analysis. Proceedings under the UCCJEA do not conflict with, and are not preempted by, proceedings under the Hague Convention because the two laws address different objectives. See Suarez v. Castrillo, (D. Colo. No. 11-cv-01762-MSK, July 13, 2011) (2011 WL 2729074) (unpublished opinion and order denying reconsideration). The Hague Convention focuses on returning children who have been wrongfully removed from their place of habitual residence, whereas the UCCJEA sets forth standards to determine which jurisdiction decides custody disputes. ¶ 28 ... we reject her contention that a decision not to return a child under the grave risk exception means that the country to which the child was taken must always make the final parental responsibilities decision concerning the child. ¶ 29 Under the Hague Convention, a country to which a child has been removed has jurisdiction to decide the merits of the return claim but not necessarily the merits of the underlying custody dispute. ... See Simcox v. Simcox, 511 F.3d 594, 607 (6th Cir. 2007) (finding grave risk of harm is not an invitation for an abducted-to country to also decide the child's best interests); Friedrich, 78 F.3d at 1068 (grave risk exception is not a license for abducted-to country to decide best interests because that decision is a custody matter reserved to the child's country of habitual residence);

Thanks to Ron Nelson for alerting me to this one.

Parent's report on meeting with Japan's justice minister about custody & Hague Convention

I don't know who the author is, nor the merits of his case, but this transcription of his meeting provides an interesting window into official Japanese attitudes about child custody, how different Japan is but also how much change is in the air.

Meeting with Justice Minister Satsuki Eda

 

Japan has begun child custody transfers/enforcement in 120 cases; 48% comply

 Japan's courts basically never transfer child custody, leaving the children with whoever takes them when the parents first separate, and not even ordering visitation with the other parent. But that seems to be changing in a few cases. The unusual terminology in this article -- "Forced Custody Transfer" -- shows that most of the paper's readers in Japan are unfamiliar with the concept.

"Forced custody transfer orders hit 120 in 2010:  Enforcement unsuccessful in many cases" - Yomiuri Shimbun 1/10/2012, via Kevin Brown of Children First Japan

Prosecution, investigation rare in green-card wedding scams

"Prosecution rare in wedding scams" 

by CALLUM BORCHERS and STEPHEN KURKJIAN of the Initiative for Investigative Reporting in the School of Journalism at Northeastern University in Boston. 

Excerpts:

By some government estimates, as many as 60,000 of the 200,000 or so marriages by which illegal immigrants, or those on temporary visas, become lawful permanent residents ... are fraudulent. ... Yet the government investigates less than 1 percent of the 200,000 approved applications for fraud. ... On the rare occasions the marriages are exposed as shams, American citizens rarely face consequences, even as their foreign spouses are deported. ...

A suspicion that a marriage is fraudulent must be vetted at four levels – two at CIS, two at ICE – before it is fully investigated. Even then, a U.S. attorney may decide not to prosecute.

Woman who brokered dozens of "green-card" marriages @$12K each just tip of the iceberg

"Green Card scam: Holyoke woman arranged dozens of sham marriages"

- MassLive.com via the US Border Security Council. 

This story emphasizes that this crime is widespread but rarely discovered, and cites a study explaining why, which estimates that there are $60,000 immigration-fraud marriages per year. It also points out several things that make immigration-fraud marriages possible, or easier:

- Unilateral no-fault divorce laws, so that fraudsters can be sure they won't be stuck with their marriages long-term.

- Marriage licenses with no waiting periods and no need to show an I.D.

- CIS offices unable or unwilling to investigate marriage fraud, even when alerted by court clerks.

Excerpts:

... Knoller pleaded guilty to arranging 32 fraudulent marriages, though the actual number was likely much higher. Originally scheduled for sentencing in October, her hearing is now set for Jan. 19.

Federal investigators found evidence in a raid on Knoller’s Holyoke home that the number might be more than twice that. In Brattleboro alone, Cappy reported her suspicions about many more marriages. And, federal agents found evidence she had more in the planning stages: Their search turned up 61 gold wedding bands.

Knoller’s was a full-service enterprise. After the illegals obtained legal status, she helped facilitate divorces for many.

An investigation by the Initiative for Investigative Reporting at Northeastern University in Boston found evidence that the Knoller case may be a rare exception, one of the few such scams actually uncovered and prosecuted.

Among the findings:

- U.S. government efforts to monitor such marriages are ineffectual, according to government auditors. Each year, about 200,000 immigrants who are in this country illegally or on a temporary basis obtain Green Cards by marrying American citizens. By some estimates, up to 60,000 of those marriages are fraudulent;

- American citizens who are paid to make the scams possible rarely face any sanctions. In the Knoller case, not one of the 32 American spouses was prosecuted, while all of the illegals now face deportation;

- Brattleboro as a “destination wedding” site may have been by design. Vermont’s laws for obtaining a marriage license are the most lax in New England. Town clerks are not required to ask for identification, and seldom do, while Massachusetts and every other state bordering Vermont requires proof of identity;

- Cappy, the town clerk, notified federal authorities numerous times about the suspicious couples and their wedding planner. Yet it took three years for federal agents to bring a halt to Knoller’s wedding bonanza.

...

Independent auditors concluded the program is so hobbled by a lack of resources and firm standards that the federal government is left ill-equipped to identify fraudulent marriages. Yet every year, about 200,000 immigrants who are in the United States illegally or on a temporary basis, gain their Green Cards by marrying American citizens.

Principal among the system’s inequities is the double standard when fraud is discovered.

As illustrated in the Knoller case, the illegal immigrants who paid $12,000 for having the fake marriages arranged are facing deportation. Although federal law allows for prosecution of American citizens for engaging in fraudulent marriages aimed at evading U.S. immigration laws, none of the Knoller-arranged spouses face any legal consequences.

 

Article originally by the Initiative for Investigative Reporting in the School of Journalism at Northeastern University in Boston. For more information see their other article, "Prosecution rare in wedding scams"

‎#Japan Gov't Plans to Submit Bill Endorsing #Hague #Abduction Convention

"Gov't eyes submitting bill in March to endorse int'l child custody pact"

Mainichi Shimbun 1/6/12 via Ron Nelson

The planned submission of the bill during the regular Diet session to be convened later this month is in line with Prime Minister Yoshihiko Noda's pledge to U.S. President Barack Obama during their talks in November. ... Although the opposition camp backs the substance of the bill, deliberations on the legislation could stall due to tactics the opposition parties may adopt over parliamentary procedures in the divided Diet, where the ruling bloc lacks a majority in the upper chamber.

...

Within the Japanese government, calls for swift enactment of the legislation gained momentum after a Japanese woman faced a felony charge of concealing her 9-year-old daughter from the girl's Nicaraguan father, who is a permanent U.S. resident, according to the officials.

The woman, who had taken the girl to Japan in 2008 and was arrested in Hawaii in April, was set free in December after the girl was returned to her father in Wisconsin following a plea agreement reached in November.

 

UK Gov't moves to ensure visitation after divorce or separation

Divorced parents will have right to see their children under new law

• Those who refuse to accept ruling could risk jail

Daily Mail 1/6/12, via Joint Custody in Japan

Ministers are drawing up new rules to put courts under a legal duty to ensure divorced parents are guaranteed access to their children. 

Parents who refuse to accept the orders will be in contempt of court and risk serious penalties or even jail. ... children’s minister Tim Loughton said: ‘Our vision is to establish that, under normal circumstances, a child will have a relationship with both his or her parents, regardless of their relationship with each other.

... [Another] bill requires courts and councils which are enforcing contact orders for children ‘to operate under the presumption that the rights of a child include growing up knowing and having access to and contact with both parents involved’.

Read more: http://www.dailymail.co.uk/news/article-2082970/Divorced-parents-risk-jail-stop-ex-partner-seeing-children-new-law.html#ixzz1iglcX01F

Read more: http://www.dailymail.co.uk/news/article-2082970/Divorced-parents-risk-jail-stop-ex-partner-seeing-children-new-law.html#ixzz1iglR4HDU

Read more: http://www.dailymail.co.uk/news/article-2082970/Divorced-parents-risk-jail-stop-ex-partner-seeing-children-new-law.html#ixzz1igl0e9jI

Read more: 

 

 

American wives of deportees put marriage first, band together in adversity

American-born wives married to U.S. deported or banned spouses band together via online networks - NY Daily News

 (via Mayra Calo)

Clinton urges Japan to act on child abductions

Like most such stories this oversimplifies a couple things in the interests of reporting the biggest, most relevant truths, which is about as good as news reporting gets. Caveats: It's usually, but not always, the foreign and male parents who are denied contact with their children. And while the Hague Convention would not get children returned if they were abducted before Japan ratifies it, it does provide for regular visitation arrangements even in those cases.

Clinton urges Japan to take action on child abduction issue

Japan Today 12/20/11 - via Kevin Brown of Children First Japan

And here, via Patrick Braden of Global Future, is video of Secretary Clinton's remarks - they don't include a lot of detail on this but she does mention that existing abduction cases, too, need to be remedied. You can skip to that part by hitting play then tracing your mouse along the timing bar and clicking at 6:00.