Monday, January 27, 2014

Left Behind: Parents Challenge Japan's Dismal Child Abduction Laws

By: Jane Kitagawa | Jan 23, 2014 

It sounds like something out of a John Grisham novel—but it’s not.
“The gentleman was here on a holiday in January 2013 with his family,” explains Bruce Gherbetti, deputy chairman of Kizuna Child-Parent Reunion, discussing the case of a Canadian man who had reached out to their organization after his Japanese wife abducted their son. “During the second week of their vacation he went to have a shower, and when he got out—they were gone. He hasn’t heard from his wife since and has no idea where they might be.”

Sadly, the man’s case is just one of many on Kizuna’s books. The organization, an NGO pressing to restore parent-child rights in Japan, specializes in helping “left-behind” parents deal with child abductions to—and within— Japan by their spouses. Kizuna chairman John Gomez estimates there have been about 3 million parental child abductions in Japan since 1992. Gomez himself is a left-behind parent, or LBP. “That’s roughly 150,000 cases per year, and every one of those is a human rights violation,” the soft-spoken Gomez says. “I took data from the Ministry of Health, Labor and Welfare and looked at divorces in Japan from 1992-2011. Primetime NHK news program Close Up Gendai in September 2010 [also] suggested 58 percent of parents lose access to their children after divorce. This is being acknowledged and recorded as an accurate estimate and translates to 1-in-6 children in Japan having lost a parent through divorce.”

Its divorce figures may be consistent with rates worldwide, but Japan is unique in that child abduction after separation or divorce is legal according to its family court. Only one parent is recognized as having shinken (parental rights) with the other expected to forgo all parental privileges.

While the vast majority of cases concern Japanese couples, globalization has seen an increasing number of intercultural relationships in which children can effectively be snatched from their non-Japanese home country and brought to Japan—no questions asked.

Although Japan unanimously passed legislation to allow it to join the Hague Convention on the Civil Aspects of International Child Abduction in the spring of 2013, it only applies to future cases. There are also doubts among left-behind parents, lawyers and others alike that not much will change unless domestic laws are also addressed.

Gherbetti is one of the skeptics. “The implementing legislation Japan has passed to accede to the Hague Convention is flawed in many ways. It allows for big loopholes in and around the non-return of children, specifically concerning Article 13(b), which states that if there’s a grave risk to a child, then that child shouldn’t be returned to their country of habitual residence. Japan’s legislation…adds categories where they can deny the return of a child abducted to Japan post-ratification.” According to Gherbetti, a similar scenario exists with the legislation Japan has passed concerning visitation and access.

To that end, Kizuna seeks to become an authorized service provider with permission to implement and facilitate visitation under the Hague Convention in Japan, which requires cooperation between governments and professional experts versed in child-parent reunion issues. It’s part of the organization’s charter to focus on solutions, say Gomez and Gherbetti—yet Kizuna acknowledges that changes to local laws will make more of a difference.

“I think Japan has agreed to sign and implement the Hague Abduction Convention primarily to reduce the pressure from the United States, which has been ramped up over the last four years. When Japan accedes, it will be the 90th country to join the Convention and the last of the G8 countries to do so. But will they be compliant? Probably not,” says Gherbetti.

“On the other hand, legislation has just been approved unanimously in the US House of Representatives—House Resolution 3212: Sean and David Goldman International Child Abduction and Return Act of 2013—which gives the president the opportunity to sanction and penalize member countries that are non-compliant with the Hague. I think the gaiatsu [outside pressure] is going to have to remain to ensure Japan is partially compliant.”

Indeed, in mid-December, the House voted to create an annual report to assess child abductions across all countries, and to require President Barack Obama to take action against nations who remain noncompliant. Potential US measures include refusing export licenses for American technology, slashing development assistance and postponing scientific or cultural exchanges. However, the final decision on whether to proceed with punishment would remain with the president. And then there remains the situation with domestic Japanese law and policy.

“The Japan family court system is the root cause of international and domestic abduction cases alike,” says Gomez. “Both kinds of cases are interlinked as the family court ignores foreign court orders and visitation is not enforced. This is despite Japanese Civil Code Article 766 taking effect in April  2012. It requires boxes be checked on divorce forms stating that parents have agreed to a child visitation plan—and that there have been discussions on child support payments—but Kizuna has found via government data that while most divorces go through, only 50 percent of people getting a divorce check the boxes and there’s no follow-up to see whether they comply.

“Furthermore, the family court continually validates claims of domestic violence without thorough investigation and always gives sole custody to the parent who has abducted the children.”

It’s a point that international family attorney Jeremy Morley, based in New York City, says is a sticking point, describing sole custody akin to “’finders keepers, losers weepers’ in its rawest and most cruel form.”

He also mentions the United Nations Convention on the Rights of the Child. Japan signed that treaty two decades ago, yet has failed to comply with its principles when it comes to parent-child abductions.

This lack of compliance and ignoring of foreign court orders is something Japanese national Masako Aeko Suzuki knows only too well. Married, living in Canada and mother to a boy, Kazuya David Suzuki, her marriage broke down in the mid-2000s. “My husband, a Japanese, abducted our then 12-year-old son to Japan in 2006,” she recalls. “This was despite the Hague Convention, which I only learned about after my son was kidnapped. A Canadian court also ruled for joint custody and that my son not be forcibly taken to Japan, but by the time this ruling came through, it was too late.”

Masako retuned to Japan and tried to find her son. She struggled with the archaic family law system and its requirements. She learned of other LBP in Japan and was particularly struck by the international cases, given the circumstances under which her own son was abducted.

She reckons she has spent over $100,000 on legal fees both in Canada and Japan and has taken her case to the high and Supreme courts. “My ex-husband Jotaro Suzuki was granted sole custody of my son by the Japanese family court in late 2006; this is standard for abduction cases. I was later granted very brief visitation rights, but Jotaro and Kazuya again disappeared and I haven’t heard from them since.

“In order to apply for further visitation rights, I had to supply my son’s address as per the jyuminhyou (official address registration), but I didn’t know where he was because he’d been kidnapped! It doesn’t make sense!”

Ms. Suzuki admits to being broken, but not defeated. “[Since returning to Japan] I decided to establish my own organization, Left Behind Parents Japan, to help other struggling LBP.” Part advocate, part translator, part interpreter and part counselor, her workload has only increased.

It’s a similar situation at Kizuna, say Gomez and Gherbetti. Future goals are to recruit more volunteers and ramp up fundraising, educate Japanese public about the global standard of joint custody and reconnect children with their left-behind parent while honoring their best interests.

Says Gomez, “This work to reunite children with their parents and change the system in Japan is my life’s mission. We have targets and milestones we’d like to achieve, such as enforceable visitation rights and guidelines for reasonable terms of visitation that permit a parent to maintain a relationship with their child, throughout separation and divorce. That means the amount of hours is sufficient; typically, visitation hours in Japan equate to only one to two hours per month. After that, eventually we’ll look at joint custody, and denial of access should be criminalized. I don’t know how long it will take to change that, but I’ll be working on that indefinitely.”

Hague Convention
The 1980 Hague Convention on the Civil Aspects of International Child Abduction works to ensure the prompt return of abducted children to their country of habitual residence. It does so by compelling its signatories to respect the custodial rights of the left-behind parent.

If Japan were a signatory, the Japanese courts would be obliged to order the return of children to their country of habitual residence prior to the abduction. Instead, as is almost always the case in Japan, the court orders a new hearing so that it can decide custody (disregarding previous decisions), which is exactly what the Hague Convention seeks to avoid.

Glimmers of Hope?
Says Gomez: “In terms of enforcement of visitation, we’re starting to see an inkling of the beginnings of enforcement. This is because in March 2013, a Japanese Supreme Court ruling upheld a Hokkaido High Court ruling that financial penalty for failure to comply with a visitation agreement was legal. Optimistically, I hope this brings about systemic change.”

Warning Signs
Many of the people interviewed for this story said it was difficult to pinpoint any signs separate to general marital discord that suggest one’s partner may be considering abducting their children. Bruce Gherbetti sums it up thusly:

“I don’t know if there are any warning signs per se that would differentiate a potential abductor from someone who’s just in an unhappy marriage, but one of the things that people might want to be wary of is the issue of separation itself. From my own personal experience, I wouldn’t recommend talking about separation. That could possibly tip someone into abducting.”

The Children’s Rights Network (see below), a treasure trove of information on child abduction on the internet, has also published a useful parental abduction preparedness checklist.

Rights of the Child
“The U.N. Convention provides that countries shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Unfortunately, Japan’s legal system does not adequately protect this right. In Japan it is rare for a court to effectively enforce the fundamental human right of both parents after a divorce to have a significant role in the life of their children (and the fundamental human right of children to have both parents in their lives). This will likely make it difficult for the Japanese courts to effectively implement the Hague Abduction Convention.”—international family law attorney Jeremy Morley.

Thursday, January 09, 2014

Australia: Asset Division on Divorce

Jeremy D. Morley

In an important ruling the Full Court of the Family Court of Australia at Sydney has distinguished, if not overturned, a line of cases whereby a judge could make an unequal distribution of the parties’ assets if the party to be favored had made a “special contribution” based on “special skills” to the creation of such assets.  Kane & Kane, [2013] FamCAFC 205.
The parties were married for 28 years and in a relationship for almost 30 years. Their assets totaled $4.2 million, of which $3.4 million was held in a retirement fund. The couple initially contributed equal amounts to the fund, but the husband decided to invest a large proportion in shares against the wife's wishes, leading to a significant profit.
Section 79 of Australia’s Family Law Act 1975 gives a court a broad discretion to allocate the assets of divorcing parties, based inter alia on their respective contributions to the acquisition, conservation or improvement of assets, and to the welfare of the family.

Because of his ''skill in selecting and pursuing the investment'', the trial judge had awarded the husband two-thirds of the retirement fund, or $1 million more than the wife. All other assets - totaling less than $800,000 - were divided equally.

While prior cases had paved the way for such an analysis, the Full Court declared that it was wrong to place “unacceptable weight” on the “special skills” of one spouse and remanded the case for a new hearing in which the court’s discretion should be applied by considering all of the parties’ financial and non-financial contributions throughout the entirety of their relationship.

The case means that a wealthier spouse who divorces in Australia after a long marriage is less likely to walk away with a disproportionately higher share of the parties’ assets.


Wednesday, January 08, 2014

Child Custody in Israel: Religious or Secular Courts?

Child custody matters in Israel can be handled by religious or secular courts depending on the religious affiliations of the parents. The article below describes a situation where the nature of those affiliations is disputed and both secular and religious courts become involved.

High Court freezes ruling by Shari’a appeals court in child custody dispute
By Yonah Jeremy Bob 01/08/2014

The High Court of Justice on Tuesday issued an interim freeze against an order of the Shari’a Court of Appeals in Israel that would have led to transferring custody of two children from the mother to the father in a custody battle.

The conflict pits the civil court system against the Shari’a courts (which can serve Muslims living in Israel), with the Jaffa Shari’a Court having said it can overrule a prior decision of the Haifa District Court granting temporary custody to the mother.

According to a Justice Ministry statement, the facts of the case are as follows: The couple married in 1999 and have two children, ages nine and 13.

The couple split after the husband started physically abusing the wife, with the wife running away from their home in the North with their two children to live in the central region.

In 2008, the mother filed a request with the Kiryot Family Court to obtain custody of the children as well as alimony and maintenance payments from the father.

There was significant litigation on the issues before the Kiryot court and a number of social-worker evaluations of the parents, with the court granting the mother temporary custody and obligating the father to undergo further tests regarding his competence as a parent.

Following the father’s failure to cooperate with the officials empowered to evaluate him and with the court in general and his failure to pay maintenance per the court’s order, the court froze the case (with the children in the indefinite temporary custody of the mother) until the father came into compliance with the court’s directives.

Simultaneously, the father initiated parallel custody proceedings before the Jaffa Shari’a Court, in which he contended for the first time that the mother was a Muslim.

While there is no dispute that the father is Muslim, the mother has always claimed to be unconnected to any religion and the father insisted on moving the kids into Muslim schools whereas they have been learning in secular state schools for years.

In parallel, the Jaffa Shari’a Court granted the father custody while the Haifa District Court upheld the Kiryot Family Court ruling in favor of the mother and said that the shari’a courts had no jurisdiction.

However, following the father’s ignoring that ruling and obtaining a ruling from the Shari’a Court of Appeals that the Shari’a courts had jurisdiction, the Haifa District Court told the mother that she could only obtain further relief from the High Court.

The Justice Ministry’s Legal Assistance Division on Monday filed a petition with the High Court that quickly blocked any continuation and enforcement of the Shari’a courts’ proceedings until it decides whether custody should be decided in the civilian or the Shari’a courts.

The petition’s ultimate goal is to void all Shari’a court decisions on the issue and to uphold the civilian courts’ decisions in favor of the mother.

Tuesday, January 07, 2014

BBC Interview with Jeremy Morley on International Prenuptial Agreements

Jeremy Morley was interviewed by BBC Capital on the topic of International Prenuptial Agreements.  Extracts from the article are attached below:

Breaking up is hard to do — financially
Andrea Murad, 7 January 2014

Prenuptial agreements around the world...

Planning a wedding is stressful enough, so for many couples, considering how they would handle the financial fallout of a split is hardly on their minds ahead of the big day.
But that might be changing. With a growing number of international marriages has also come an increase in the prevalence of prenuptial agreements, say some lawyers who specialise in matrimonial law.
A prenuptial agreement or ‘pre-nup’ is a legally binding contract which can outline how finances and possessions would be split and handled if a couple divorce. In some countries, these agreements have existed for hundreds of years while in others, they’re relatively new. In addition to protecting each partner’s assets, these agreements can be designed to protect family money, companies or real estate.
“One reason for a pre-nup is to create clarity and protection of wealth and assets — clarity, that is to have a clear arrangement on how the family partnership will operate,” said Jeremy Morley, an international divorce lawyer based in New York.
Morley said pre-nup discussions can open the door to how couples expect to run their financial affairs during their marriage. “All over the world, people don’t talk about money, but it’s very hard to predict the future and how relationships will change,” he added.
Without a pre-nup, the courts will decide how marital assets are divided after a split according to a country’s laws. “Pre-nups are insurance policies against high lawyer fees,” said Randy Kessler, partner at Kessler & Solomiany, a law firm in Atlanta. In Kessler’s opinion it is unlikely that the other side will spend a lot of money if a pre-nup exists.
But before entering into a pre-nup, spouses need to consider which assets they want to protect or the financial support they would need to maintain their current lifestyle if they were to separate from their partner. Agreements can also include sunset provisions that will make the pre-nup invalid after a certain period of time. And married couples can even enter into a post-nuptial agreement after they are married that acts in a similar way to a pre-nup.
BBC Capital spoke to family law lawyers in the United Arab Emirates, France, Germany, Japan and the US for more information about how these agreements work around the world. Scroll through the images above to see the ins-and-outs of pre-ups in those countries.
United Arab Emirates: Sharia law and contractual obligations...

Only UAE nationals, or Emiratis, marry under UAE law. The country follows Sharia law, and this is outlined in the Quran.
In 2012, according to the UAE National Bureau of Statistics, 8,753 or 59% of the 14,934 marriages were between nationals, while 2,351 or 60% of the 3,901 divorces were between Emirati couples. For every 3.7 Emirati marriages that year, there was one divorce.
“Islam provides an entire regime in and of itself,” said Jeremy Morley, an international divorce lawyer based in New York. “Marriage is a contract, and you are required to have a contract that will regulate within the consequences of divorce.”
The marriage contract under Sharia law is already a type of a pre-nuptial agreement. It starts with the Mahar (dowry), which has two parts: an accelerated dowry is paid upfront at the time of the marriage to cover any wedding expenses and a late dowry is paid at divorce or following the husband’s death.
To encourage Emiratis to marry other Emiratis, the late Sheikh Zayed bin Sultan Al Nahyan, the former UAE president, set a limit on dowries to prevent Emirati grooms from slipping into debt. Currently, the accelerated Mahar cannot exceed AED 20,000 ($5,445) and the late Mahar has an AED 30,000 ($8,168) limit — a total of AED 50,000 ($13,613). Since currency tends to lose value, many brides ask for this money in gold.
“[The contract] sets up exactly what the woman will be paid upfront and at the end of the marriage,” said lawyer and legal consultant Diana Hamade, founder of International Advocate legal Services based in Dubai. “If the man can prove that the woman contributed to the end of the marriage, she won’t get paid the dowry.”
The husband would have to prove that his wife caused him harm by neglecting him, by spending too much money or by going out too much, for example. A UAE woman is able to leave a marriage voluntarily and obtain a Khula. But without being able to prove harm, she would have to give up everything, including wealth and children, and repay her husband for everything he had bought for her during the marriage, Hamade said.
Child custody and support is not addressed in the marital contract — but these are very detailed in the law and are not left to the judge’s discretion. Often, when there are children involved, a woman will usually maintain custody and manage the children’s day-to-day activities, and from her ex-husband, she will receive an apartment and child support payments.
Non-Muslim expats who marry in the UAE will often draft pre-nups that follow the laws of their homeland.
Germany: Where pre-nups are more the norm...

United States: Courts, mediation and complications...

Japan: Where courts take a back seat...

Most Japanese couples don’t divorce through the courts. The procedure, called kyōgi rikon, is very administrative. Couples who agree to divorce instead file registration documents with a local municipal office. Pre-nups are very rare in Japan because couples rely on the country’s detailed civil code to determine how to divide their assets.
Marriage in Japan is on the decline while the number of divorces has held steady for the past decade. In 2011, there were about 662,000 marriages and about 236,000 divorces, according to the Japanese Ministry of Health, Labour and Welfare — or one divorce for every 2.8 marriages that year.
“All the statutes offer many provisions for divorce,” said Tokyo-based lawyer Hirohito Kaneko. “The statute of the family court is very clear [regarding] the division of marital assets.”
In a divorce, all assets that were acquired during the marriage, excluding any assets earned prior to the marriage, or any inheritances or gifts, are divided between each spouse. Japanese law doesn’t provide for spousal support.
“He pays her a modest lump sum just to get divorced,” said New York lawyer Morley. “That’s usually the end of it — he’s divorced from his wife and children. There’s very little visitation by the non-custodial parent in Japan, but this is slowly changing.”
Pre-nups are more popular in marriages between a Japanese citizen and an international person. These marriages tend to be more complicated. The couple’s assets could be spread throughout several different countries, and the couple may decide to stay in Japan or move to another country in the future.
“Japan has freedom of contract, and [couples] can split assets however they want — they can make their own deal,” said Morley. “The civil code in Japan provides that assets created during the marriage are to be divided equally after the marriage.”
Although the agreement addresses the division of assets and spousal support, it does not address issues regarding children, like custody matters and child support. Child support is determined by the civil code, but is rarely paid and it is difficult to enforce payment.
To date, there hasn’t been a case that tested pre-nups in Japan. “It’s very unusual for court cases in Japan to be tested,” said Morley. “The pre-nup agreement would give more certainty."