International Child Abduction Cases in Japan: The Role of Family Court Investigating Officers

by Jeremy D. Morley

jmorley@international-divorce.com

International child abduction cases in Japan, brought pursuant to the Hague Abduction Convention, frequently require the involvement of Family Court Investigating Officers (FCIO). These are court officials who are government employees with training in psychology, sociology and pedagogy, and who are assigned in Family Court matters to investigate allegations of domestic abuse, child access problems and their domestic relation issues. They have broad authority to interview parents and children, to make home visits, to “accurately ascertain the objective facts,” to understand “the emotions that underlie the respective arguments of the parties,” to make predictions as to future outcomes, to encourage the parties to resolve their disputes, and to “make reports to the judge with his /her opinion on the solution.”

In Hague Convention cases, investigations by FCIOs are ordered primarily when a taking parent claims that the child is now “settled in the new environment” and when a taking parent claims that the child objects to being returned. When it is claimed that the child has become “settled in the new environment,”(which can only be relevant if the proceeding is commenced more than one year after the date of the wrongful taking or retention, the FCIO conducts a child interview, does a home study, collects information relating to the child's school and extracurricular activities and then submits a report with his/her opinions. On the other hand, in situations in which the taking parent relies on the purported objections of the child,  the FCIO submits a report by using “age-appropriate interviewing skills on the child to ascertain whether the he/she has attained an age and degree of maturity so that his/her views may or may not be taken into account.” I expect that FCIO's are used also in examining claims that the child will be at grave risk of harm if returned overseas.

I had the pleasure of meeting and interviewing senior Family Court Investigating Officers during a recent visit to Japan as the guest of the Japanese Hague Convention Central Authority. The officers were charming and sincere. However, I question the extent to which they fully understand the custom, laws and child-rearing norms of western countries, and the extent to which, despite their best efforts, they are able to “put themselves in the shoes” of left-behind non-Japanese parents whose children have been taken to and retained in Japan and to understand the circumstances of both Japanese and non-Japanese children who have been raised outside Japan.

Japan’s One-Parent Rule

by Jeremy D. Morley
www.international-divorce.com

Japanese law provides only for sole custody. The Civil Code of Japan expressly and unambiguously provides that, when parents divorce, only one parent may be given parental authority over their child to the complete exclusion of the other parent, either by agreement or by order of the court (Article 819, Japan Civil Code). Parental authority includes both legal and physical custody. There is no system in Japan for divorced parents to share parental authority.

The effect of Japan’s one-parent rule is that the parent who does not have custody has no rights whatsoever in Japan to exercise any of the inherent rights of a parent. If both of a child’s parents are good parents but are unable to agree on custodial matters, Japanese law requires that one of the parents must automatically be stripped of all of his or her rights concerning the child (with the very limited exception of an extremely limited visitation right). The courts in Japan have no discretion in this regard. The one-parent rule is mandatory and totally inflexible.

On September 27, 2019 the Japanese Justice Ministry announced that it “will launch a study by the end of this year on whether to introduce a system of joint custody in Japan, where child custody is awarded to one parent after divorce” and that the panel will then spend “more than a year compiling a report.” However, it is far from clear that the necessary changes will be made, since the proposal to modify the law has already generated substantial opposition.

It is alien to Japanese tradition and Japanese law for a child’s parents to have any significant sharing of parental responsibility upon a family break-up. When parents separate in Japan, one parent invariably takes the child and the other parent largely or entirely disappears from the child’s life. It is an extension of the traditional Japanese custom that children belong to a family and can be registered on the official Japanese koseki (family register) of only one family. Thus, the one-parent rule is not merely the mandated law but it is also the societal norm. Indeed, it is considered entirely inappropriate in Japan for the parent who does not have custody of a child to interfere with family peace. and with the child’s best interests, by demanding more than occasional and extremely limited contact with a child. It is also considered to be entirely inappropriate for a Japanese court to interfere with family peace by taking any significant action against the parent who is in possession of a child except for suggesting and encouraging mediation or conciliation in the context of the rule that a child “belongs” to the one parent (and his or her family) that has custody of the child.

A significant reason for the one-parent rule, as well as the concomitant practice of drastically limiting child visitation, is to allow and encourage the custodial parent to establish a new family with a new spouse. It is common in Japan for a custodial parent’s new spouse to adopt a child from a prior marriage. Thus, if the noncustodial father has significant contact with his child, it would significantly hinder the mother’s opportunity to remarry, which would be considered in Japan to be unfair to both the mother and the child.

I have worked with Japanese counsel on several cases in which we tried to create a shared decision-making regime for children living in Japan, even when both parents agreed to continue living in Japan. Unfortunately, all such efforts were entirely unenforceable and unworkable, and all efforts to secure the meaningful intervention of the Japanese courts to enforce the terms of the parents’ prior stipulated orders proved entirely futile. 

Japan’s one-parent rule violates the fundamental human rights of a child to have two parents in his or her life and of a parent to have his or her child in his or her life. It is also plainly contrary to the best interests of a child to be deprived arbitrarily and automatically of his fundamental right to be parented by two parents.

New York Court Upholds Morley Testimony Concerning Japanese Family Law

Jeremy D. Morley

www.international-divorce.com

A New York court today, in a hotly contested case between Japanese parents living in New York, relied entirely on my expert evidence concerning Japanese family law and procedure in dismissing the application of one parent to relocate the parties’ Japanese children to Japan.

The court ruled that there was “overwhelming evidence” and “clear and convincing evidence” that Japanese laws and procedures would enable the taking parent to cut the left-behind parent off from the children.

Practice Tip on Returning Abducted Children to Japan

Jeremy D. Morley

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.

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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.

Lecturing in Japan about International Child Abduction, Custody and Parenting

Jeremy Morley

I will be lecturing and consulting extensively in Japan, throughout the last week of this month, on “The Hague Abduction Convention in the U.S. and Japan,” at the invitation of the Ministry of Foreign Affairs of Japan.

I will address the issue of Japan’s failure to enforce return orders and the differences between the interpretations and applications of the treaty in the two countries.

However, I will also explain that that the differences between the United States and Japan concerning the Convention run far deeper than these relatively superficial matters, and that they stem from widely divergent views and practices about the appropriate parenting of children and the role of law in private family life.

I will argue that the pending debate about the Hague Convention is a mere sideshow to, and a diversion from, the more fundamental issue of the best interests of children and the fundamental human rights of parents and children after parental separation or divorce.

I will assert that, in the current environment, the Convention cannot adequately protect the competing rights of parents and children in the case of abductions of children from the United States or other countries to Japan. I will further explain that the U.S. State Department’s designation of Japan as “noncompliant” with the Convention, while technically accurate, addresses only the most superficial of issues that are relevant to these matters.

I will also explain how Japan’s adoption of the Hague Convention without addressing the basic issue of the right of both of a child’s parents to have their children in their lives has often proven counter-productive not only to non-Japanese parents who wish to see their own children but also to expat Japanese parents who wish to bring their children to visit Japan or to live in Japan if that is in the children’s best interests.

Lecturing in Japan on Hague Abduction Convention

Jeremy D. Morley

www.international-divorce.com

I am pleased to announce that, at the invitation of the Ministry of Foreign Affairs of Japan, I will be lecturing on the Hague Abduction Convention in Japan in the last week of February to the Ministry of Foreign Affairs and to invited lawyers’ groups in both Tokyo and Osaka.

The lectures will focus on comparisons of the U.S. and Japanese approaches to the Hague Abduction Convention and of the U.S. and Japanese approaches to child custody.