Implementing abduction treaty in Japan no piece of cake - will violence issues devour it?

International Family Law News & Analysis: Implementing abduction treaty in Japan no piece of cake - will violence issues devour it?. A very thoughtful and insightful article from Prof. Colin P. A. Jones of Doshisha University Law School.

One issue he discusses is domestic violence claims in Hague Convention cases. But those have not even been raised as an issue in 99% of the Hague Convention cases I have handled or know of.  Second, the Convention already has exceptions for situations where return would mean a grave risk of physical or psychological harm to the child. Case law varies on whether this exception applies to cases of spousal abuse. But even when there are abuse allegations, the Convention lets the court  send the child back to the home country with the abductor instead of the petitioner.  So it is a doubly rare case in which return to the home country, by itself, would endanger the child or the abducting parent.

No, ABC, Japan signing Hague Convention WOULD help already-kidnapped kids

Part 2 of ABC's "Abducted to Japan" series was great -- I was worried about how the series's other shoe would drop, and it was refreshing to see them recognize that sometimes there AREN'T two equally valid sides to every issue.

But at the end, the reporter told Diane Sawyer that if Japan ratifies the Hague Convention, it wouldn't help the children who've already been abducted. But the Hague Convention WOULD help these families. True, its provisions on returning abducted children don't apply to abductions before ratification -- but it has a separate section, Article 21, on establishing and enforcing visitation, which is subject to none of the Convention's requirements for abduction cases. Also, implementing the Convention could not be done without fundamental changes to Japan's custody/visitation system (or lack thereof). 

By the way, the ABC story's online comments are as a whole deep, wise, powerful, and more open-minded and better-informed than the story itself, although there's a fair amount of the idiocy that every web site with a comment section receives. 

Japan's custody/abduction problem goes way deeper than sex or race bias

"A Father's Plea: Desperate Effort to Return American Children Abducted to Japan --Hundreds of American Children Abducted to Japan; U.S. Government Powerless to Intervene" -- ABC News Feb. 15-16, 2011 

The one thing that the first segment of the ABC series got wrong, understandably, is that the real problems in Japan are not, primarily, pro-female bias, anti-foreigner bias, or the lack of joint custody. I'm sure that those are a factor in many of these cases, but the problems are way more fundamental:

- The Japanese family courts do not believe in visitation, or any contact with the non-custodial parent -- at least when the custodial parent disagrees with those things in any way.

- They do not enforce foreign orders, but then again they do not enforce much of anything. They are afraid to make orders that might not be enforced.

- The primary rule for deciding custody is not preferring mothers or natives, it's a "Grab and Git" system. Whoever takes the children first, keeps them. As for whoever doesn't, see above.

Because this is the reality, people are advised to plan their divorces without giving the other parent any warning that there are problems in the marriage, then disappear with the children before their spouse knows anything. So a lot of people do this not because they are bad people, but in self-defense -- better to be the child abductor than to be the one who is eliminated from the children's lives.

The perception that the problem is gender and nationality bias mostly arises from the fact that nearly all the cases involving Westerners are ones where a Western man is married to a Japanese woman who abducts the children. But  the result is the same even when the sexes and nationalities are reversed.

Looking at cases of Japanese families within Japan also helps flesh out what's really going on. For example, when former Prime Minister Koizumi divorced, he kept his two sons, and his ex never saw them. She was pregnant at the time of the divorce, and that son  never met his father.  

Strong cultural differences affect these cases, too. There seems to be less tolerance of any social interaction that could include any awkwardness or lack of harmony, and so people in authority find it easy to portray visitation as too stressful or psychologically harmful for children -- while they apparently have a harder time seeing any psychological harm to children from losing a parent. And in a society where the patriarchal extended family is historically more significant than the nuclear family, people think of children as having to belong only to one extended family.


IRS, federal law keep tax info from being used to find abducted children

Interstate Child Custody Jurisdiction Blog: IRS, federal law keep tax info from being used to find abducted children.

"When a Parent Abducts a Child, the IRS is Mum" - New York Times -- A very good article about a problem that cries out for Congress to do something. The only thing the author misses is that many of the cases affected are not criminal cases. All of them are civil family law cases; some of them involve additional criminal charges, state and/or federal. More excerpts.

Child custody treaty case splits Supreme Court on new lines

The U.S. Supreme Court has decided the Hague Convention case of Abbott v. Abbott, on whether a foreign law, or order, barring a custodial parent from moving a child out of the country, gives the non-custodial parent “rights of custody” that are protected by the Convention. I.e., if a custodial parent in that situation violates the home country’s law, or court order, by moving their child to the U.S., without the permission of the other parent or a local court, can the other parent use the Hague Convention to have the child ordered back to the other country? The Supreme Court says yes.

This result is good policy, it’s good for international families, it’s good for the rule of law. It’s consistent with how people use and rely on the Hague Convention today, and how most courts in the U.S. and abroad interpret it. I’m not sure it reflects the treaty’s original intent or text, but the treaty leaves room for interpretation in that area.

What is especially significant is what it says about our current understanding of child custody. The majority reads “rights of custody” as implying “a bundle of rights”, in which some rights may be exclusive to one parent and others will often be shared by both, and both parents will ordinarily remain parents, and exercise some parental authority after divorce. The dissent takes an older view of custody as something that is (at least ordinarily) unitary, held by one parent after divorce. This view is declining but is still very strong in the more tradition-minded parts of our culture. These two views coexist, in different proportions, in other countries as well, as divorce and unwed parenthood become more common and society’s other institutions strain to adapt to them. They drive a lot of the drama in child abduction, alienation, and other contentious custody situations.

The other notable thing about this case was how the Justices lined up on it. At oral argument, Justices Sotomayor and Scalia led the charge for the more modern, expansive, plural view of custody rights, with some apparent support from Roberts, and Breyer and Stevens energetically pressed the unitary view. Justice Ginsburg seemed to be on the unitary side, and wanted it known that the 1980 treaty was from the golden age of feminism, and was intended to protect custodial mothers against abduction by non-custodial fathers. However, the father’s lawyers replied that the treaty specifically provides that custody rights may be joint, that it is from a time when joint custody was already becoming popular in the U.S. and other countries, and that it deals with abduction at many points in a family’s history, from the time of initial separation to long after a divorce. In the end, Justice Ginsburg joined Justice Kennedy’s majority opinion, and the dissenters were Justice Stevens, who wrote the dissent, Breyer and Thomas. As a family lawyer I am not a great student of the Supreme Court, but this is the only opinion of theirs I remember reading that has a dissent but no concurrences, separate dissents, etc.

Some information, some misinformation about Japan and the Hague Convention

International Family Law News & Analysis: Japanese opinion article with some new information, some misinformation on Hague Convention.

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.

Read the article at International Family Law News & Analysis.