By John Crouch, Va. State Bar Family Law News, Summer 2009
On April 16, we attended a very frank and informative meeting between the American Bar Association International Law Section’s Family Law Committee and the staff of the U.S. State Department’s Office of Children’s Issues, which administers the Hague Conventions [i.e., treaties] on international child abduction and international adoption. We toured the offices and got to watch the staff working on various kinds of abduction and abduction-prevention cases.
The Office’s Deputy Director, Kathleen Ruckman, announced two new resources for judges handling international child abduction cases: (1) A case-law database for judges only, run by the Hon. James Garbolino of New Jersey, at www.haguejudicialresources.org; and (2) an international network of judges with experience in such cases, who have volunteered to talk to judges who are not so familiar with them or who are facing a novel issue with the Convention. It is administered by the Hague Conference on Private International Law, www.hcch.net. Judges interested in either of these resources should contact Judge Garbolino at jimgarbolino@surewest.net. No one can use the case-law web site without getting a password from him.
I don't know if the Hague Convention will be of any help in this case, if the father did not file a Hague Convention case soon after the mother took him to Brazil and made clear that she wasn't coming back. I guess he could still file a case based on her original abduction, but a Brazilian court could choose to ignore it since it would be filed more than a year after the abduction. The problem with filing a case about the current retention of the boy in Brazil is that he's no longer a habitual resident of the U.S.
But the Hague Convention is not the only legal way to get a child back with his parents. Any way you slice it, he should be with his father, and I've read nothing indicating that it is really a complicated case in any way.
The father has a web site about the case at http://BringSeanHome.org.
This item in the Mainichi Daily News has what may be some news about whether Japan will enter the Hague Convention. The author favors the Convention for very good reasons, but is not completely well-informed about it.
He also quotes a lawyer who makes preposterous claims about child abduction: That 90% of abductors are fleeing from domestic violence or child abuse. (In my experience as a lawyer working on abduction cases, it's more like 1%, and the Convention has exceptions for such cases).
Even more ridiculous is his claim that "when the Japanese women come back to Japan ... the voice of the man saying, 'Give me back my child,' tends to be heard louder." Heard louder? It's not heard at all. The Japanese courts and authorities have never given ANYTHING to abduction victims, not even visitation. And abduction victims are not all men, and not all non-Japanese.
Japan would help children of international marriages by signing child
abduction convention
(By Megumi Nishikawa, Expert Senior Writer)
Japanese women from collapsed international marriages who bring their
children to Japan without their partner's consent are facing charges
of abduction -- an issue that has highlighted a convention covering
international child abduction.
The Hague Convention on the Civil Aspects of International Child
Abduction has been signed by about 80 countries, including in Europe
and the United States. Under the convention, it is illegal for one
parent to take a child away from his or her country or residence
without first settling issues such as custody and visitation rights.
Signatory countries have a responsibility to return children who have
unilaterally been taken out of the country by one of their parents.
(There are some exceptions, such as when the child refuses to go
back.) Japan, however, has not signed the convention, so this rule of
returning the child does not apply. This has raised strong
dissatisfaction among foreigners who cannot see their children
because they have been taken to Japan.
The Ministry of Foreign Affairs and the Ministry of Justice are
giving favorable consideration to signing the convention, but the
opinions of experts are split.
Kensuke Onuki, a lawyer familiar with the issue, is opposed to Japan
signing the convention, based on the viewpoint of Japan protecting
its own citizens.
"In over 90 percent of cases in which the Japanese women return to
Japan, the man is at fault, such as with domestic violence and child
abuse," Onuki says. He says that when the Japanese women come back to
Japan, they don't bring with them evidence of domestic violence or
other problems, making their claims hard to prove, and the voice of
the man saying, "Give me back my child," tends to be heard louder.
Mikiko Otani, a lawyer who specializes in family law, supports Japan
participating in the convention. The first reason she gives is a
connection with the U.N. Convention on the Rights of the Child. The
U.N. committee that monitors how the Convention on the Rights of the
Child is implemented advises each country to ratify the Hague
convention as a pact that is integrated with the convention on child
rights.
Otani adds that joining the convention does not provide only
disadvantages. There are now cases in which former foreign husbands
refuse to let their child see their mother, saying that if they let
their child go to Japan, he or she won't come back. There are also
cases of mothers setting aside a security deposit of 100,000 dollars
(about 10 million yen) to bring their children over to Japan.
When couples divorce in Japan, only one side has custody rights, and
the family view that the child should be handed over to the mother is
prevalent. Under the Hague convention, however, joint custody is
maintained as long as domestic violence is not involved, and the
party not living with the children has visitation rights. This stance
shakes up the Japanese view of the family, but I think Japan should
join the convention.
There are the reasons given by Otani, but in addition to that, the
shape of Japanese society and families is changing largely. For
example, the rate of men who are taking child-care leave is still at
a low level but increasing, figures by the Ministry of Health, Labor
and Welfare show. Division of housework and child-rearing between the
husband and wife is natural. It is not an age in which one parent
takes complete responsibility for a child.
If children in international marriages can freely go between the two
countries of their mother and father, their lives will surely be
greatly enriched.
This is probably not the best Hague Convention opinion ever written, but it is very probably the best-written Hague Convention opinion ever. It's only four pages and it's by the foremost judge in the whole country -- read it yourself to see what I mean.
Continue reading "Judge Posner analyzes custody rights under foreign law in child abduction case" »
No entry for surrogate baby / Divorce of Japanese couple leaves girl
stranded in India
The Yomiuri Shimbun
A baby girl born to an Indian surrogate mother, who made a surrogacy
agreement with a Japanese couple, cannot gain entry to Japan because the
baby has not been given any nationality since the couple divorced after the
agreement was made and only the father has claimed custody of the baby, it
has been learned.
The Japanese Foreign Ministry has told the father that, in accordance with
the Japanese Civil Code, the government cannot accept the registration of
the birth of the baby as a Japanese. The code grants status of being the
legally acknowledged mother to the woman who has actually given birth to the
baby.
To make it possible for the father to take custody of the baby, he needs to
go through the necessary legal procedures in Japan and India to adopt the
child, the ministry said. The baby will not be allowed into Japan in the
meantime, it said.
Regarding the pros and cons of surrogate births, the Science Council of
Japan--which regards so-called surrogate birth tours to developing countries
as questionable--compiled a report in April. The report said a new law
should be introduced to prohibit the practice of surrogate births.
