Tuesday, February 26, 2008

Japan Won't Let Abducted Kids Go


This article from ABC News is based in part on an interview with me.

Notwithstanding the information in the article, there are some things that can be done in case of child abduction to Japan, though rarely using the Japanese "system."

By RUSSELL GOLDMAN, Feb. 26, 2008 —

Kaya Wong's parents never imagined they would be able to have a baby.

Born three years after her mother was diagnosed with cancer, Kaya, now 4 years old, was a miracle.

But for Paul Wong, Kaya's father, the unimaginable soon became the unthinkable. Months after the cancer fatally spread to his wife's brain in 2005, Kaya, he says, was kidnapped by her maternal Japanese grandparents.

Despite being his daughter's sole surviving parent, he has few options available to him as an American in Japan  a historically xenophobic country that does not honor international child custody and kidnapping treaties. It's also a nation that has virtually no established family law and no tradition of dual custody.

He knows where his daughter lives, where she goes to school and how she spends her days, but despite the odd photograph from a family friend, he has not seen his daughter once in the last six months.

Wong is one of hundreds of so-called "left-behind" parents from around the world whose children have been abducted in Japan, the world's only developed nation that has not signed the Hague Convention on the Civil Aspects of International Child Abduction.

'Heartbroken'

There are currently 39 open cases involving 47 American children spirited away to Japan, a key American ally and trading partner, but many more go unreported. Not a single American child kidnapped to Japan has ever been returned to the United States through legal or diplomatic means, according to the State Department.

"This entire experience has left me heartbroken," Wong told ABCNEWS.com. "We always wanted children. My wife and I talked about starting a family for a long time, but because Akemi was sick we kept having to wait. When Kaya was born, I promised my wife that we would move to Japan so that our daughter would know about her Japanese heritage and Akemi, despite her own illness, could care for her elderly parents."

Wong, a 41-year-old lawyer, says he does not regret keeping his promise to his ailing wife, but his pledge set into motion a series of events that have kept him from seeing his only child.

"She's very energetic, outgoing, active, inquisitive innocent little girl. She is simply perfect, and sweet as can be. She is not afraid of anything," he said of his daughter during a phone interview from Japan. "I'm breaking up just thinking about her and talking about her. She loves to laugh and has a smile just like her mother's."

Kaya was born in San Francisco in 2003 and is a dual citizen of the United States and Japan. The young family lived in Hong Kong, with Akemi making occasional trips to California for treatment until she and Kaya moved in with her parents in Kyoto, Japan to rest after a treatment. Shortly thereafter, she passed away.

Abuse Allegations Common

For more than a year after her mother's death in December 2005, Kaya continued to live with her grandparents, with Wong visiting monthly from Hong Kong as he worked to find a job that would allow him to move to Japan.

Once he found a job and was preparing to move, however, things suddenly changed.

"Once I moved to Tokyo last year, the grandparents did everything possible to keep Kaya away from me. When I said I'm taking her back, they filed a lawsuit against me filled with lies and claimed I had sexually assaulted my daughter. There are no facts and the evidence is completely flimsy."

According to Wong, with the exception of one long weekend in September 2007 when he took his daughter to Tokyo Disney, her grandparents were present every time he was with Kaya.

He said that a Japanese court investigator found that the girl was washed and inspected every day after a swimming lesson at her nursery school and her teachers never noticed signs of abuse.

ABCNEWS.com was unable to contact the grandparents Satoru and Sumiko Yokoyama, both in their 70s. State Department officials would not comment on the specifics of this case, but a spokesperson said that allegations of abuse were not uncommon in some abduction cases.

Kaya's grandparents are elderly pensioners. Under a Japanese program to stimulate the birth rate, families with young children receive a monthly stipend from the government, one reason Wong believes the grandparents have chosen to keep Kaya.

Though Wong's case is unique in that most child custody disputes result from divorce not death, his is typical of the legal morass in which many left-behind parents find themselves. He has spent thousands of dollars on legal fees and makes regular appearances for court hearings, but his case, like many others, remains stalled.

American parents quickly learn that the Japanese court system is rather different from that of the United States.

There is no discovery phase  pretrial disclosure of evidence  or cross-examination. Lawyers for each side simply present their cases before a judge.

Furthermore, there is no concept of parental abduction or joint custody. The parent or family member who has physical custody of the children  generally the Japanese mother or her family  is granted legal custody.

"Fundamentally, people believe that Japan must have a legal system available to deal with child custody and similar problems," said Jeremy Morley, an international family lawyer. "In reality, however, there is no such system."

"Family law is very weak in Japan. There is also a cultural perception that a Japanese child is best off in Japan with a Japanese parent. Boiled down, the law is: Whoever has possession has possession and the other parent should mind his own business," Morley said.

Culture Clash

Culturally, there is no concept of dual custody or visitation. Once a couple gets divorced, the children are typically assigned to one parent and never again have contact with the other parent.

After divorcing his then-pregnant wife of four years in 1982, former Prime Minister Junichiro Koizumi retained custody of his two eldest sons, Kotaro and Shinjiro. His ex-wife Kayoko Miyamoto took custody of their unborn son, Yoshinaga Miyamoto. Since the divorce Miyamoto has not seen her two eldest sons, and Koizumi has never met his youngest son, Yoshinaga.

Against this cultural backdrop, American parents seeking custody find themselves in an endlessly revolving door of hearings that go on for years and yield no results.

Paul Toland, a commander in the U.S. Navy, estimates he has spent "well over $100,000 in attorney's fees" for the last five years in an effort to get back his daughter.

Toland's daughter was taken by his ex-wife to live with her parents in Tokyo while he was stationed in the country in 2003 and he has not seen the girl since.

He began fighting for custody of his daughter Erika, 5, when she was just 9 months old. When his wife, Etsuko Futagi, committed suicide in September 2007, Erika's maternal grandmother took posession.

"I feel real frustrated because I'm in a holding pattern," said Toland, 40, who lives in Virginia. "It has been a nightmare trying to get through this."

Possession Is Key

Though Toland is his daughter's sole surviving parent, judges in countless hearings have upheld the cultural imperative that it is in the child's best interest to stay with whomever she is with at that moment.

"Whoever has custody when they walk into court has custody," Toland said. "Judges never want to disrupt the status quo. There is no enforcement of the law because there is no teeth in the system. Police won't intervene because they say it is a family matter. Every judge knows that and rules in favor of the status quo because he would lose face if he ordered something that would never be followed through on."

For now, Toland can only wait and keep trying through the courts.

He said he regularly sends "care packages  big boxes full of presents and videotapes of me reading her children's books." Since he does not know whether those videos ever make it to his daughter, he keeps copies locked in a strong box to give her if and when he finally gets custody.

"Parental abduction is not a crime in Japan, but taking a child out of Japan is a crime. It is legal to abduct my own kid in Japan, but it's a crime to take her back home with me."

His parents have each just turned 80 and have never met their granddaughter.

"It is a crime to keep my parents from knowing and loving Erika," he said.

'Countries Disagree'

With the legal and cultural cards stacked against them, many Americans turn to the State Department and politicians for diplomatic help, but to little avail.

"On most things Japan is an important partner," said Michele Bond, the State Department's deputy assistant secretary for Overseas Citizens Services. "This, however, is one issue where we greatly differ. Left-behind parents often engage in a fruitless campaign to get back their children."

The State Department, she said, regularly raises the issue of international abduction and Japan's refusal to join the Hague Convention, a 1980 international treaty on cross-border abductions.

Other countries, particularly Muslim nations that practice Shariah, also have not joined the treaty, but in many of those cases the United States has worked out agreements, or memoranda of understanding, to allow for the return of children. There is no such memorandum with Japan.

"We engage with the government of Japan at every opportunity and bring it up all the time. We try to raise the visibility of the issue and make them aware that this is not the tradition in other countries. Progress has been slow but we are hopeful to find a solution that respects both cultures and everyone's rights, especially the children," Bond said.

The State Department currently has 1,197 open cases of child abduction involving 1,743 children worldwide.

Bond said many cases of abduction to Japan go unreported because families know there is little the U.S. government can do to help.

Legislative Efforts

"Culturally, the Japanese are not disposed to deal with foreign fathers. The law does not recognize parental child abduction. Criminal extradition is limited because they don't recognize that a crime has taken place," she said.

Despite efforts on behalf of U.S. legislators to contact Japanese diplomatic officials, Wong has received no word of a change in his case.

In April 2007, Sen. Barbara Boxer, D-Calif., sent a letter to President Bush about child abduction on the occasion of the Prime Minister Shinzo Abe's visit to the United States.

"I am very concerned over Japan's lack of assistance in these cases and urge you to insist that Japan cooperate fully with the United States and other countries on international parental child abductions. Furthermore, I hope you will press Prime Minister Abe to support the Hague Convention on the Civil Aspects of International Child Abduction and to implement a formal two-parent signature requirement for obtaining passports for minors," the letter stated.

The Japanese government would not comment on specific cases of child abduction and in an exclusive statement to ABCNEWS.com never used the word "abduction."

"We sympathize with the plight of parents and children who are faced with issues of this kind, which are increasing in number as international exchange between people expands," reads a statement from the Japanese Embassy in Washington, D.C.

The embassy said that the Hague Convention was inconsistent with Japanese law, but that joining the convention was still under review.

"Regarding the possibility of Japan's joining the Hague Convention, we must point out that [the] Japanese legal system related to child custody is quite different from the underlying concept of the Hague Convention. Japanese courts always take into consideration what the best interest of a child is with respect to each individual case, while the Convention provides the relevant judicial or administration authorities in principle [to] order the return of the child, unless the limited exceptions apply."

Few Successes

Left-behind parents are used to hearing similar language from Japanese judges and American diplomats relaying messages from their Japanese counterparts.

"We strongly believe that it is in the best interest of a child to have access to both parents," said the State Department's Bond.

She said a child has never been returned to the United States as a result of diplomatic negotiation or legal wrangling, and knew of only three cases where children were reunited with their American parents  "two in which the parents reconciled and one in which a 15-year-old ran away."

Michael C. Gulbraa of Salt Lake City is the father of that 15-year-old, his now 17-year-old son Christopher. Christopher returned to the United States in 2006, and calling him a runaway undermines years of careful planning by his father to ensure that if his son wanted to get out of Japan he would be able to.

After Gulbraa and his wife divorced in April 1996, she gained custody of Christopher and his older brother Michael K. Gulbraa.

In 1999, when the boys were 8 and 9 years old, Gulbraa learned that his wife's second husband was under investigation for abusing his biological son.

After months of investigation by court-appointed guardians and experts, his ex-wife, Etsuko Tanizaki Allred, feared she would lose custody and took the boys to Japan in 2001.

In 2002, the court gave Gulbraa custody and charged Allred under Utah law with felony custodial interference and a federal international kidnapping statute. Despite the international warrants for Allred, Japanese courts did not require her to return their children to Gulbraa.

"That's how things remained until July 2006. I did everything I could think of. I even petitioned the Vatican to intervene," he said.

In 2006, Christopher contacted him via text message and said he wanted to come back to the United States. Since his sons were kidnapped, Gulbraa had been working on a plan to get the boys emergency passports and onto a plane with whatever help U.S. diplomatic officials could legally provide.

One Who Escaped

When the boy's mother learned of the plan, she took his cash and identification, making the train trip to the consulate and obtaining a passport all the more difficult.

Gulbraa will not disclose quite how his son got the money for the train, but said he had traveled to the Osaka consulate and provided it with photos of the boy and questions only he could answer in order to confirm his identity.

"Chris said he was going for a bike ride and got on a train from Nagoya to Osaka. We had to work through his not having any money or picture I.D. In late August 2006, he got home with the help of every agency of the U.S. government involved. From the consulate in Osaka to the embassy in Tokyo, everyone did everything to get him home without breaking the law."

For Gulbraa being reunited with his son is bittersweet knowing his older son, Michael, remains in Japan.

Today, Gulbraa supports other left-behind parents and continues to petition the U.S. government to ensure kidnapped American children are reunited with their rightful guardians.

"It is mind boggling that we kowtow to an ally because we are worried about trade and beef exports, when people's children are being torn from them. Abduction is abduction and it needs to stop."

Monday, February 18, 2008

NCMEC Not Handling Incoming Child Abduction Cases

The National Center for Missing & Exploited Children has announced that as of April 1, 2008 it will no longer handle any aspect of incoming child abduction cases arising under the Hague Convention on the Civil Aspects of International Child Abduction. As the U.S. Central Authority, the U.S. Department of State has decided to assume all responsibility for managing incoming Hague Convention cases -- that is, for children who have been abducted from a foreign country and taken to the United States.

Thursday, February 14, 2008

Saudi Family Law Must Be Revised: U.N.

GENEVA (Reuters) - Saudi Arabia must create laws to protect women from violence and also allow them to play a bigger role in society and the workplace, the United Nations said on Thursday.

"The lack of written laws governing private life constitutes a major obstacle to women's access to justice," said Yakin Erturk, the U.N.'s human rights expert on violence against women.

In a statement she called on Saudi Arabia to create a legal framework based on international human rights standards, including a law criminalizing violence against women.

That would also include a family law on marriage, divorce and minimum age for marriage, said the Turkish sociology professor at the end of a 10-day visit to Saudi Arabia, a key U.S. ally and the world's top oil exporter.

"The need to address women's rights will grow increasingly urgent as the voices of women in Saudi society are heard," she said.

The treatment of women has become an increasing embarrassment for Saudi Arabia. The country drew international criticism after its Supreme Judicial Council condemned a 19-year-old woman to 200 lashes and six months in jail for having been with a man she was not related to when she was attacked and raped by seven other men in 2006.

King Abdullah pardoned the gang-rape victim in December.

Erturk said Saudi Arabia's system of male guardianship for women limits women's freedom of movement and ability to act in a whole range of family and social areas, from marriage, divorce and child custody to inheritance, education and employment.

Saudi Arabia is the only country in the world where women are forbidden to drive. And a Saudi woman faces harassment from religious police if they are not accompanied in public by a male relative acting as her chaperone.

Earlier this month the U.N. Committee on the Elimination of Discrimination against Women called on Saudi Arabia to end the male guardianship system immediately.

Many migrants working as maids in Saudi Arabia are also subject to violence and abuse, Erturk said.

Erturk said access to education had improved for women but their employment opportunities remain restricted and sex segregation operates in the workplace.

Saudi Arabia must also provide training for police, health care providers, community leaders and others to show them that violence against women is both a violation of basic rights and incompatible with Muslim values, she said.

Thu Feb 14, 2008 © Reuters 2008 All rights reserved

Tuesday, February 12, 2008

Islamic Divorces Not Recognized in France



The French courts now generally refuse to recognize Islamic divorce decrees. So reports the conflictoflaws.net blog. The typical cases before the French courts concern Islamic divorces obtained in Algeria or Morocco by husbands of Algerian or Moroccan origin who have emigrated to France. When the wife decides to sue for divorce in France, the husband travels to Algeria or Morocco for a quick Islamic divorce (talaq) under which the wife receives extremely low financial compensation. The husband then asks the French court to stop all proceedings in France because the parties are already divorced.

Until 2004, the Cour de Cassation (the French supreme court for private matters) used various specific grounds to deny recognition to most such divorces. The typical grounds were that the wife had not been called to the foreign proceedings or that the husband had committed a fraude à la loi by initiating proceedings overseas for the sole purpose of avoiding French proceedings.

However, in 2004, the Cour de Cassation ruled that Islamic divorces are in fundamental contravention of French public policy since they infringe the principle of equality between spouses that is mandated by the European Convention of Human Rights (Article 5, Protocol VII). In 2007 the Cour de Cassation issued similar rulings in five more cases, thereby making the rule firm.

Monday, February 11, 2008

Slovakia Hague Abduction Injustice

In what is believed to be the first Hague case in Slovakia concerning an abduction to that country from the United States (a case in which I acted for the father), a Slovak appeal court has rejected a Hague return application on grounds that make the prospects of meaningful application of the treaty in Slovakia seem extremely remote.

The family lived in
New Jersey and had shared legal custody. The father signed a consent order allowing the mother to take the child, then aged six, to visit her family in Slovakia for Christmas 2005. When the mother refused to return the child, the father promptly initiated a Hague application. The mother’s defense was that the child was unhappy in New Jersey and did not want to return.

After a delay of six months the father won his case in the District Court of Bratislava II. The court held that the mother’s defense under Article 13(b) of the Convention was baseless. The mother appealed.

After another delay of six months the Court of Appeal (Krajsky sud Bratislava) sent the case back to the first level court to review again the mother’s defense under Article 13(b) of the Convention.Eventually the first level court conducted another hearing. It ordered once again that the child must be returned to New Jersey.Again, the mother appealed.

Again, the appeal court delayed the case for months.

Eventually the appeal court then took additional testimony itself and interviewed the child directly. The child – who was six years old when abducted – is now nine years old. The appeal court held that he is now mature enough to make his own decisions and held that he should not be returned.

The decision rewarded the tactic of dragging the case out for over two years so that the child could ultimately be deemed sufficiently mature to decide that he wants to stay in the country to which he was abducted by his mother. This is a complete subversion of the Hague Convention and is reprehensible bootstrapping by the Slovak court.

It must also be noted that some fault lies with New Jersey. This child should not have been allowed to leave New Jersey – certainly without more assurance that he would be returned.

Just because a country has signed the Hague Convention does not mean that it will comply with its treaty obligations.

Thursday, February 07, 2008

Automatic Restraining Order and Nonresident Child

In many states a standard restraining order automatically issues whenever a custody petition is filed. The orders typically prohibit a parent from removing a child from the state without the other party’s consent or a court order. Do such orders require a parent whose child is in another state or country to bring the nonresident child into the state in which the petition has been filed? No, says a California appeal court in a just-issued decision. Sarah B. v. Floyd B., 08 S.O.S. 774.

The case concerned a woman who took a child from California to Colorado and then, one month later, filed in California for a paternity order, custody and child support. The California court held that, “the statute does not state that a child who is already residing in another state at the time the petition is filed must be returned to California.”

The Court held that, although in certain circumstances California courts have jurisdiction to make custody determinations with respect to nonresident children under the UCCJEA, there is “no reason to believe that the Legislature intended that children living elsewhere be returned to California anytime a custody proceeding has been initiated in California.”

Monday, February 04, 2008

Cyprus: Foreign parents with joint custody may face prosecution if they leave


A PARENT who decides to leave Cyprus with his or her children without first seeking the approval of their other half could soon be subject to criminal prosecution.

In its January 3 sitting, the Cabinet approved a bill submitted by the Justice Ministry that is set to alter the Penal Code. The proposed law will be submitted to the House Legal Committee for examination and approval.

The bill’s aim is to alter current laws in a way that will regulate when it is legal for a parent to leave the Republic with an underage child without first securing the consent of the child’s other parent.

“State authorities, in the past few years, following an influx of marriages between Cypriots and foreigners, have been facing problems dealing with situations where one of the two parents, who is exercising joint custody, decides to transport an underage child or children to another country without the other parent’s consent,” a Cabinet press release stated yesterday.

“The current chapter 245 of the law does not cover incidents of an underage child’s kidnapping by a person who has joint custody, so the Penal Code amendment is considered necessary in order to prosecute the described criminal acts,” it added.

By Jacqueline Theodoulou
Copyright © Cyprus Mail 2008

Sunday, February 03, 2008

Hague Abduction Convention: The Defense of Grave Risk of Harm Is Not Working


The case of Van de Sande v. Van de Sande, which was remanded by the Seventh Circuit to the district court in Illinois in 2005 (431 F.3d 567 (7th Cir. 2005) appears to have taken a tragic turn.

The district court has now rendered a ruling in which it has thrown the proverbial book at the violent and dangerous petitioner-father. Sande v. Sande, No. 05 CV 1182 (N.D.Ill. 01/29/2008).But the ruling is apparently far too little and far too late. The children are in Belgium and in danger. And the judicial system seems to have been part of the problem, not part of the solution.

The case concerns the two young children of a Belgian father and an American mother who married in Illinois and then moved to Belgium. The father regularly and continually abused the mother physically and verbally and repeatedly threatened to kill her. Some of this conduct occurred in front of the children. He also threatened the children.

During a family visit to Illinois the mother refused to return to Belgium. The father then returned to Belgium, secured a custody order in his favor from a Belgian court and then brought a return petition under the Hague Convention. He won summary judgment in his Hague case in the federal district court. The court dismissed the mother’s defense of grave risk of harm under Article 13(b) of the Convention, primarily because she did not establish that the Belgian legal system could not or would not protect the children. On appeal, the Seventh Circuit held that the district court should review “the adequacy of conditions that would protect the children” if returned to Belgium.

What happened next is where a bad situation got far worse. The problem seems to have resulted from mediation in the district court and with an independent mediator specializing in family issues. Mediation produced an agreement pursuant to which the court entered an agreed order which allowed the father to take the children to Belgium, so long as he returned the children to the mother’s custody in Illinois no later than a specified date. He was also required to ask the Belgian court for a continuance until after the date set for the next district court hearing. Not surprisingly, once the father took the children to Belgium he refused to return them and instead of getting a continuance from the Belgian court he succeeded in getting an order that confirmed his sole custody.

The district court has now taken action against the father. It allowed the mother to contest the issue of habitual residence even though the Seventh Circuit had assumed if not determined that the habitual residence was in Belgium and even though the remand was not as to that issue. The court found that the habitual residence was in the United States, accepting the mother’s evidence that she and the father always intended to return to the United States. The court barred the father from contesting this or any other issue since his violation of the court’s order constituted conduct that gave rise to waiver of the opportunity to present evidence in support of the petition. The court also found that the mother had established the defense of grave risk of harm because of the undisputed evidence of violence and threats against the mother and threats against the children.

The district court’s ruling is fine -- except that the children are in Belgium and the father has sole custody of them under Belgian law.

The Seventh Circuit saw the danger of assuming that the foreign court would provide the necessary protection. But the subsequent process seems to have let the children down. We do not know what occurred in mediation and to what extent the court encouraged it. However, it seems reasonable to assume that the mother was told that she might well lose the case (again) on remand and that she should trust the Belgian legal system to protect her and the children.

The Hague Convention is a worthy treaty which sometimes produces great injustice.