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We just won a Hague Abduction Convention case in Sweden,
working with Swedish counsel, and obtained an order to return the abducted
children to Japan. Of the greatest importance, the Swedish court granted our
express application that our client, the left-behind parent, is the parent who
will take the children back to Japan.
Japanese family law is extremely weak. Child custody orders
in Japan are essentially
unenforceable. Japanese law applies
the one-parent rule, whereby only one parent is permitted to have custody of a
child. Visitation rights are minimal and unenforceable. For these reasons, the
parent who is in possession of a child in Japan is usually, by default, the
custodial parent.
This has to be explained, and proved, usually by expert
evidence, to a court handling a Hague petition seeking the return of
a child to Japan.
It is often also necessary in such cases to handle
suggestions from the abducting parent or the court about undertakings. These
are provisions that impose conditions of the return of an abducted child. They
might, for example, require that, before a child can be returned to Japan, a
Japanese court should issue an order concerning the terms under which the
parties should reside prior to the issuance by a court in Japan of a
comprehensive custody order. Such conditions are completely counter-productive
and entirely naïve when it comes to the return of children to Japan. Japanese
courts do not issue such orders and, even if they did, they would be unenforceable.
For these reasons, it is critical to ensure that the focus
is on which parent will take the child back to Japan because the reality is
that legal
system in Japan is essentially a vacuum when it comes to child
custody and visitation. Basically, whoever possesses a child in Japan has de
facto custody.
_____________________
Jeremy D. Morley handles
numerous cases concerning Japanese family law. He lectured earlier this year on
such issues at the Japanese Foreign Ministry and has frequently been called as
an expert witness on Japanese family law in courts throughout the world.
