Japan to Sign Hague Child Abduction Convention

Yes!!!!05/10/2008
BY MIAKO ICHIKAWA
THE ASAHI SHIMBUN

Japan will sign a treaty obliging the government to return to the rightful parent children of broken international marriages who are wrongfully taken and kept in Japan, sources said Friday.

The Justice Ministry will begin work to review current laws with an eye on meeting requirements under the 1980 Hague Convention on Civil Aspects of International Child Abduction, the sources said. The government plans to conclude the treaty as early as in 2010.
The decision was reached amid criticism against Japan over unauthorized transfer and retention cases involving children. The governments of Canada and the United States have raised the issue with Japan and cited a number of incidents involving their nationals, blasting such acts as tantamount to abductions.

In one case, a Japanese woman who divorced her Canadian husband took their children to Japan for what she said would be a short visit to let the kids see an ailing grandparent. But the woman and her children never returned to Canada.

Once parents return to their home countries with their children, their former spouses are often unable to find their children. In Japan, court rulings and custody orders issued in foreign countries are not recognized.

Under the convention, signatory parties are obliged to set up a "central authority" within their government. The authority works two ways.

It can demand other governments return children unlawfully transferred and retained. But it is also obliged to find the location within its own country of a child unlawfully taken and retained, take measures to prevent the child from being moved out of the country, and support legal procedures to return the child to the rightful parent.

Sources said the Japanese government will likely set up a central authority within the Justice Ministry, which oversees immigration and family registry records. The ministry has decided to work on a new law that will detail the procedures for the children's return.

In 2006, there were about 44,700 marriages between Japanese and foreign nationals in Japan, about 1.5 times the number in 1996. Divorces involving such couples more than doubled from about 8,000 in 1996 to 17,000 in 2006.(IHT/Asahi: May 10,2008)

Preventing International Child Abduction: Texas Case

When should a court take steps to prevent possible international child abduction by a foreign national parent?

This issue is critical to many parents but many courts -- and even many family law lawyers -- do not give the issue the serious consideration that it must be given.

The consequences of international parental child abduction are frequently so severe that when a parent raises concerns there is an obligation to consider them long and hard. The challenge for judges is that the evidence that is proffered by worried parents is invariably speculative.

To require a parent who wishes to prevent abduction to produce clear proof of an actual threat to abduct imposes an often-impossible burden on a concerned parent.

Recently a Texas Court of Appeals was asked to consider whether a trial court had improperly found a potential risk of abduction of a child by her Bulgarian father. Karenev v.Kareneva, No. 2-06-269-CV (Tex. App.3/20/2008) (Tex. App., 2008).

Fortunately for the mother and child, Texas has been relatively forward-thinking in having enacted legislation expressly designed to prevent international child abduction (Texas Statutes Sec. 153.50 et seq).

The legislation instructs the courts that in determining whether there is a risk of the international abduction of a child by a parent of the child, “the court shall consider evidence that the parent:

(1) has taken, enticed away, kept, withheld, or concealed a child in violation of another person's right of possession of or access to the child, unless the parent presents evidence that the parent believed in good faith that the parent's conduct was necessary to avoid imminent harm to the child;

(2) has previously threatened to take, entice away, keep, withhold, or conceal a child in violation of another person's right of possession of or access to the child;

(3) lacks financial reason to stay in the United States, including evidence that the parent is financially independent, is able to work outside of the United States, or is unemployed;

(4) has recently engaged in planning activities that could facilitate the removal of the child from the United States by the parent, including:

(A) quitting a job;

(B) selling a primary residence;

(C) terminating a lease;

(D) closing bank accounts;

(E) liquidating other assets;

(F) hiding or destroying documents;

(G) applying for a passport or visa for the parent or the child; or

(H) applying to obtain the child's birth certificate or school or medical records;

(5) has a history of domestic violence that the court is required to consider under Section 153.004; or

(6) has a criminal history or a history of violating court orders.”

If, based on the above factors, the trial court finds that there is "credible evidence of a risk of abduction of the child," the statute requires the court to also consider the following factors in order to evaluate that risk:

(1) Whether the parent has strong familial, emotional, or cultural ties to another country, particularly a country that is not a signatory to or compliant with the Hague Convention on the Civil Aspects of International Child Abduction; and

(2) whether the parent lacks strong ties to the United States, regardless of whether the parent is a citizen or permanent resident of the United States.

The evidence at trial showed that the husband had once enrolled the child in school in Texas without the wife's knowledge and had listed his first ex-wife as the emergency contact; that the wife was afraid husband would kidnap the child and return to Bulgaria, where both parties were born; that the wife claimed that her husband was a millionaire in Bulgaria; that he had traveled to Bulgaria three times in the preceding two years; that the husband had a history of threats, harassment, and domestic violence and had been convicted of harassment; that he claimed income far less than his expenses; and that he had not paid child support.

There was no evidence of any actual threat to take the child to Bulgaria.

Nonetheless the appellate court concluded that “there is sufficient evidence to support the trial court's finding of a potential risk of international abduction of the child by husband, and, therefore, the trial court did not abuse its discretion.”

Australia Child Custody & Relocation Problems

Australian child custody law presumes that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. (Australia’s Family Law Amendment (Shared Parental Responsibility) Act 2006).

This presumption has reportedly created significant damage.

Judge Graham Mullane has reported to the Association of Family and Conciliation Courts that recent research by the Institute of Family Studies has shown that shared parenting has increased substantially in Australia but that the effect of many of these arrangements has been to subject infants or very young children to a pattern of separation from their primary care giver that may be seriously damaging to the child.

Many of the parents’ relationships are poor and they have no capacity to co-parent. For many children, the arrangement involves a high level of inconsistency and instability, and repeated exposure to parental conflict.

Moreover I can certainly attest to the fact that the 2006 law has made child relocation cases very much harder to win in Australia -- or, depending on your point of view, much easier to defeat -- which has caused devastating results in some cases.

Korean Adultery Law

Adultery is a crime in Korea punishable by up to two years in jail. Now Ok So-Ri, a famous Korean actress who has been indicted for adultery, has petitioned Korea’s Constitutional Court to invalidate the 1953 law that criminalizes such conduct.

In her complaint, her attorneys have argued that, "The adultery law constitutes a serious breach of the individual's rights to make decisions concerning sex and privacy under the constitution. Adultery cases must be handled in civil courts, not in criminal courts."

However, although the legislation has been challenged before -- complaints were filed in 1990, 1993 and 2001 – the Constitutional Court has rejected all prior petitions on the grounds that social morality would be weakened.

Today, it is rare for people to be jailed but that does not stop thousands of angry spouses from filing criminal complaints each year.The danger that the law creates is illustrated by Ok So-Ri’s own case.
The issue began when her business partner – not her husband – accused her in the course of a business dispute of having committed adultery with a famous chef. She then went into hiding and when she emerged she denied the affair with the chef but admitted an affair with another man. Her husband then charged her with adultery.

Let us hope that the Constitutional Court corrects the problem.

International parental child abduction from the U.S. to India

March 28, 2008, News-India Times

By Jeremy D. Morley

There has been a rash of cases concerning parents who remove a child from the United States to India without the consent of the other parent and then refuse to return the child to this country.

Parents often have a grave misunderstanding of the serious nature of such parental child abduction. Many believe that simply because India is not yet a party to the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”) the legal system can neither prevent nor cure a parent’s unauthorized removal of a child from the United States to India. Such views are totally mistaken.

U.S. federal law makes kidnapping a crime even when it is committed by one of the child’s parents. The International Parental Kidnapping Crime Act (IPKCA), 18 U.S.C. 1204, makes it a federal felony to remove a child under the age of 16 from the United States, or to retain a child outside the United States with the intent to obstruct the lawful exercise of parental rights. In addition, every state recognizes that the abduction of a child by his or her parent is a serious crime, subject to penalties in excess of one year in prison.

The International Parental Kidnapping Law has been used against Indian parents on many occasions. For example, Dr. Fazal Raheman, who was convicted of the crime in the following circumstances: He had married his wife in India and moved with her to Massachusetts. They had two children. After a few years he apparently became concerned that his wife was becoming too “independent” and he “made threats” against her. He then took the children without her consent to his former home in Nagpur, India and refused to return them.

His wife obtained an emergency custody order from a court in Massachusetts while the husband obtained a custody order in his favor from the Nagpur Family Court. The mother traveled to India to try to find her children and bring them home but her husband filed criminal charges against her in India and she fled to the United States without her children.

Dr. Raheman was then charged with the crime of international parental kidnapping. He was also charged with wire tapping since he had illegally tapped his wife’s telephone and videotaped her. He was captured during a return trip to the United States and after trial he was convicted of both charges and was sentenced to three years' imprisonment, followed by three years of supervised release. He was ultimately released from prison on condition that he effect the return of his two children - then 12 and 8 years of age - to their mother in the United States.

However, Dr. Raheman then proceeded to provide false information to the Nagpur Family Court, which was found to have inhibited the likelihood that the children would be returned to the United States. As a result he was sentenced to a further year and a day in prison. The Nagpur court transferred custody of the children to Raheman’s elderly mother in Nagpur and the mother had no contact with them except for sporadic visits. Imposing the second sentence, Judge Patti B. Saris harshly criticized Raheman for stealing the children from their home in the U.S., and noted that Raheman had betrayed the trust of the country which had given him great benefits while he lived here.

Dr. Raheman appealed but a federal appellate court held that the International Parental Kidnapping Act was applicable to a father who took his children from the United States to India even though the pre-decree abduction was not illegal under state law. United States v. Fazal-Ur-Raheman-Fazal, 355 F.3d 40 (1st Cir. 2004).

In a second case, Sanjay Sardana, a father of Indian descent, was convicted after a jury trial of taking his three-year old daughter to India with the intent to obstruct the lawful exercise of parental rights by the child's mother, his estranged wife, in violation of the International Parental Kidnapping Crime Act. The defendant appealed unsuccessfully to the United States Court of Appeals for the Second Circuit. Details of the case are at U.S. v. Sardana, 101 Fed. Appx. 851 (2d Cir. 2004).

Another recent case of great significance concerned a Syrian national who abducted his child to Syria. In that case the Tenth Circuit Court of Appeals upheld the imposition of the maximum sentence of 36 months against the abductor even though the sentence significantly exceeded the sentencing guidelines for the crime. The reason for the harsh sentence was that the father refused to bring his children back from Syria. USA v. Riadh Abdul Rahman Dallah, 192 Fed. Appx. 725 (10th Cir. 2006).

Some other relevant laws are:
§ The Extradition Treaties Interpretation Act of 1998, 18 U.S.C. 3181, which authorizes the United States to interpret extradition treaties that list "kidnapping" as including the offense of parental kidnapping;
§ The Fugitive Felon Act, 18 U.S.C. 1073, which enhances the ability of states to pursue abductors beyond state and national borders; permits the FBI to investigate cases that would otherwise be under state jurisdiction; and authorizes the use of Unlawful Flight to Avoid Prosecution (UFAP) warrants in family abduction cases; and
§ The Alien Exclusion Act, 8 U.S.C. (A)(9)(C)(I), which provides that any alien who, in violation of a custody order issued by a court in the United States, takes or retains a child out of the United States, may be excluded from the United States.

On many occasions parents of Indian origin have taken a child to India and have immediately sought favorable custody orders from the Indian courts. Usually such efforts will not be recognized in the United States and they may well be counterproductive. A U.S. court will not permit parents to evade U.S. jurisdiction by the subterfuge of a parent taking the child to another jurisdiction.

A recent example is the California case of In re Marriage of Sareen, 153 Cal.App.4th 371, 62 Cal.Rptr.3d 687 (Cal. App. Dist.3 06/21/2007). The parents were married in New Delhi and then moved to New York, where their daughter was born. They later went on vacation to Switzerland but when changing planes in Germany the husband insisted that they fly to India. Three days later the husband filed for divorce and custody in India, took his wife’s and the child’s passports, left his wife and child in India and flew back to New York. Eventually the wife was able to return to the United States with her child and settle in California. The California court ultimately ruled that it had jurisdiction of the case, not India, because the husband had taken the child to India by means of a subterfuge.

Nonetheless, for many reasons India is generally a safe haven for child abductors who stay in India and do not leave. This is firstly because India is not a party to the Hague Convention on the Civil Aspects of International Child Abduction and because no Indian legislation sets forth helpful law on this issue. Furthermore, the court system in India is extremely slow so that an abductor has ample time to create “facts on the ground” in terms of getting the child sufficiently settled into life in India as to justify an Indian court in ultimately deeming that it is best to keep the child in India.

The law in India was previously settled that foreign children taken by a parent to India without the consent of the other parent would normally be returned to their country of residence or nationality. However recent decisions of courts in India have changed that rule and have held that foreign custody orders are merely items to consider as part of an overall custody review. Thus in a decision dated March 3, 2006 the Bombay High Court at Goa refused to issue a writ of habeas corpus on behalf of a British mother from Ireland whose eight-year-old daughter had allegedly been abducted to Goa by the child’s American father. The High Court dismissed the mother’s application on the ground that normal custody hearings should be undertaken and completed in Goa. One case where a fair result was ultimately obtained was Gahun v. Gahun, the High Court of Delhi at New Delhi ruled in 2006 that it would not accept jurisdiction of an application for custody by a mother of Indian descent who had lived with her husband in Canada for 12 years, had then taken their daughter for a vacation in India and had refused to return her to Canada. As a consequence, courts outside India should be extremely wary about allowing parents to take children for temporary visits to India over the objections of the other parents since there is a great likelihood that parents who wrongfully retain children in India will get away with their wrongful conduct scot-free in India.

Offshore Trusts and Divorce

The chief justice of the Cayman Islands, Mr Justice Smellie, has launched a staunch defence of trusts and has railed against what he described as the “entirely misguided” criticism of offshore trusts by onshore authorities. So reports legalweek.com.

This fuels expectations that there will be an unprecedented stand-off between offshore and onshore judges over the issue. In the landmark Charman v Charman divorce ruling, the English Court of Appeal ruled last year that assets in offshore trusts created by one spouse may be included in the "matrimonial pot" of assets that an English court in a divorce case should “fairly” divide. In that case the husband had created a discretionary family trust in Jersey for the purpose, he claimed, of benefiting his prospective heirs. He had then moved his business and himself to Bermuda, changed the jurisdiction of the trust from Jersey to Bermuda and appointed a Bermudan trust company trustee.

Ms. Charman now has an action pending in Bermuda to enforce the English judgment and compel the delivery to her of a portion of the trust assets.

In a number of similar cases involving Jersey trusts, Jersey’s Royal Court has sided with the English courts. But Justice Smellie’s speech has raised expectations that Caribbean offshore jurisdictions might now take a tougher line and refuse to follow the English practice.

India - Good News in an International Child Abduction Case

For more than three years, Deepa Topiwalla fell asleep every night wondering where her young son was. She doesn't have to wonder anymore. He sleeps in her bedroom in a small bed next to hers. After a court battle that took her halfway across the world, she has returned home to Cary with her son, and together they look forward to starting a new life.

This year marks a new chapter for them, after a tumultuous struggle that began in 2004 when Topiwalla was granted primary custody of Mihir, then 2, in Wake County Family Court. During a weekend visitation, the boy's father kidnapped him and fled to India.

Topiwalla hired a private detective in India but had no idea where to begin her search. A native of Tanzania, she had only twice visited India, which is about one-third the size of the U.S. and has a population of more than 1 billion. To complicate matters, “I was told that even if I go there, if I find out where my son is, Americans won't be able to do anything because India does not follow American laws,” Topiwalla said. Because India is not a member of the Hague Convention on the Civil Aspects of International Child Abduction, U.S. court orders aren't automatically enforceable there, Chester said.

Last June, on a trip to India to visit her dying father who traveled to India for treatment, Topiwalla began her search again. With help from relatives, she hired an Indian lawyer and issued a public plea for help in the local newspapers and television stations, showing an old photo of Mihir and asking for any information on his whereabouts. That call for help led to a tip -- and authorities were able to track down her son. But her battle wasn't over. Attorneys warned Topiwalla that she could face years of custody litigation, and “based on what we were hearing from the (U.S.) Department of State, the chances of Deepa ever getting the child back were really slim,” Chester said.

She persuaded an Indian court to grant her emergency custody of Mihir. After a hearing, the Indian judge decided to honor the American custody order, and last October, Topiwalla brought her son home to the U.S.

Topiwalla now works at a local day care center -- a job she chose in the wake of her son's abduction. “I thought, 'If I cannot be with my son, I can be with other kids and experience what's going on in their lives every day,' " she said. “Because I was missing all that growing up with my own son, I thought, 'If I do this with another child, I will feel a little bit better.' “

Topiwalla's ex-husband faces federal parental kidnapping charges but has not been arrested, Chester said. To their knowledge, he has not returned to the United States.

Nearly $50,000 in court costs decimated Topiwalla’s savings. But rather than focus on the past, she is determined to look forward. “I hope to have a good future with my son. I want to give him the best education you can have and do everything possible for him, so he can grow up to be a good person," she said. "It's huge for me to get my life back because my son is everything to me.”

© Copyright 2008, The News & Observer Publishing Company. By Cara Bonnett, Correspondent, News Observer

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."

Copyright © 2008 ABC News Internet Ventures

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.

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

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.

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.

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.”

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 TheodoulouCopyright © Cyprus Mail 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 (7^th 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.

Hague Abduction: New 6th Circuit Case on Grave Risk of Harm

The U.S. Court of Appeals for the Sixth Circuit has issued a highly significant ruling on the grave risk of harm defense to a Hague Convention international child abduction petition. Simcox v. Simcox, File No. 07a0502p.06; decision dated December 28, 2007. The decision speaks to the role that undertakings should play in rulings that concern the defense.

The Sixth Circuit held that Hague cases concerning abuse should be categorized into three broad categories.

The first category is that of cases in which the abuse to the minor is relatively minor. In such cases “it is unlikely that the risk of harm caused by return of the child will rise to the level of a “grave risk” or otherwise place the child in an “intolerable situation” under Article 13b.” The Court held that, “In these cases, undertakings designed to protect the child are largely irrelevant; since the Article 13b threshold has not been met, the court has no discretion to refuse to order return, with or without undertakings.”

The second category is that of cases in which the risk of harm is clearly grave, such as where there is credible evidence of sexual abuse, other similarly grave physical or psychological abuse, death threats, or serious neglect. The Court held that in these cases, undertakings will likely be insufficient to ameliorate the risk of harm, given the difficulty of enforcement and the likelihood that a serially abusive petitioner will not be deterred by a foreign court’s orders. The Court cited Van de Sande v. Van de Sande, 431 F.3d 567, 570 (7th Cir. 2005) for the proposition that unless “the rendering court [can] satisfy itself that the children will in fact, and not just in legal theory, be protected if returned to their abuser’s custody,” the court should refuse to grant the Hague petition.

The third category is that of cases “that fall somewhere in the middle, where the abuse is substantially more than minor, but is less obviously intolerable.” Whether, in these cases, the return of the child would subject it to a “grave risk” of harm or otherwise place it in an “intolerable situation” is “a fact-intensive inquiry that depends on careful consideration of several factors, including the nature and frequency of the abuse, the likelihood of its recurrence, and whether there are any enforceable undertakings that would sufficiently ameliorate the risk of harm to the child caused by its return.”

The Court held that in this middle category, “undertakings should be adopted only where the court satisfies itself that the parties are likely to obey them.” Thus, undertakings would be particularly inappropriate if the petitioner has a history of ignoring court orders. It stated that, “Where a grave risk of harm has been established, ordering return with feckless undertakings is worse than not ordering it at all.”

The Court found that the case at bar fell into the middle category. Although it was a close question, the mother had met her burden of establishing a grave risk of harm. The nature of abuse was both physical (repeated beatings, hair pulling, ear pulling, and belt-whipping) and psychological (the father’s profane outbursts and abuse of the children’s mother in their presence). They were not isolated or sporadic incidents. A psychologist had found that all but the youngest child were suffering from some level of post-traumatic stress disorder. Such psychological trauma could be exacerbated if a child is returned to Mexico and comes again into contact with his father. Although the youngest child appears to have largely escaped the physical and psychological injuries suffered by her older siblings, “nothing in the Convention requires that a child must first be traumatized by abuse before the Article 13b exception applies.”

The Court then examined the district court’s undertakings. That court had conditioned the return of the children to Mexico on (a) their remaining in the custody of the mother in the family’s residence in Mexico until the Mexican Court heard and determined whether a protective order would be appropriate; and (b) the father having no contact with the mother until the Mexican Court determined access and visitation rights.

The Sixth Circuit found two problems with the undertakings. The first problem was that the court ordered the mother herself, not just the children, to return to Mexico. The mother could defeat the order of return by simply refusing to accompany her children to Mexico. Assuming that the district court could not compel the mother to return to Mexico, the court must provide for a contingency to assure the children’s safety and care should she choose to remain in the United States.

The second problem was that “there may be doubts as to the enforceability of these undertakings.” The reason for such doubts was that the district court had already found that the father had exhibited “an arrogance, a need to be in control and a tendency to act out violently.” The Sixth Circuit ruled that “such traits raise questions as to [the father’s] willingness to abide by the court’s undertakings, as do his threats to have his wife arrested upon her return to Mexico. However, the latter claim may well be mere bravado, based on [the father] claiming a power he does not possess.”

Accordingly, the Court remanded the case to the district court to determine what undertakings, if any, will be sufficient to ensure the safety of the children upon their return to Mexico pending the outcome of custody proceedings.

The Sixth Circuit provided some guidance to the court below by stating that,

• “Any order on remand should be explicit as to the appropriate and efficacious undertakings that will apply should [the mother] decline to accompany her children;” that
• “One possibility may be for [the father] —who, like [the mother], is a U.S. citizen and passport holder— to remain in the United States and surrender his passport for a period of time” and that
• if the district court “determines that no such arrangement is feasible, or that the only way in which the children may be protected from harm is for them to remain in the custody of their mother, then it may be necessary to deny the petition. We reiterate that the burden for establishing the appropriateness and efficacy of any proposed undertakings rests with the petitioner.”

England Inching Towards Prenuptial Enforcement

The English courts yesterday took a further step towards eventual enforcement of prenuptial agreements.

In Crossley v. Crossley, the spouses had signed a prenuptial agreement in England. The wife asked the divorce court to ignore it because her husband had failed to tell her of the full extent of his fortune. He retaliated by successfully asking the court to disregard normal divorce procedures and to “short-circuit” the case, because the marriage was short and childless, both parties had independent wealth and they had signed a prenuptial agreement.

The Court of Appeal upheld the short-circuit procedure. Lord Justice Thorpe said that if ever there is to be a paradigm case in which the court will look to the pre-nuptial agreement as not simply one of the peripheral factors of the case, but as a factor of magnetic importance, this was just such a case.

The Court of Appeal appears to have sent out a clear signal that in such cases the prenuptial agreement is likely to be the paramount factor, and there will be little opportunity to argue other issues.

Lord Justice Thorpe also called for legislation to clarify the status of prenuptial agreements. He admitted that it bothered him that this decision may have already elevated their status beyond what current legislation provides and he complained – most justifiably, in this writer’s opinion – that the British Parliament seems “quite incapable of dealing with such potentially controversial moral matters as reform of the divorce system,” leaving the courts to keep up with the “ever-changing Zeitgeist.”

Canadian Court - Jewish Divorce

The Supreme Court of Canada made a rare foray into the religious forum yesterday, coming to the aid of a 48-year-old Jewish woman whose estranged husband had stubbornly refused for 15 years to grant her a religious release from their marriage:

A 7-2 court majority said that judges must tread warily when they adjudicate religious matters, but that it would be wrong to shy away when a bedrock Canadian principle - such as gender equality - is jeopardized.

The court awarded $47,500 to the plaintiff, Stephanie Bruker, on the basis that her right to remarry and have more children within her faith was unfairly curtailed by her vindictive ex-husband, Jason Marcovitz.

Writing for the majority, Madam Justice Rosalie Abella said that courts are empowered to referee religious disputes provided they "take into account the particular religion, the particular religious right, and the particular personal and public consequences - including the religious consequences - of enforcing that right."

However, two dissenting judges - Madam Justice Marie Deschamps and Madam Justice Louise Charron - issued a dire warning that by intruding into religion, the decision will drag the courts into potentially explosive cases where they have no place.

"The courts may not use their secular power to penalize a refusal to consent to a 'get,' failure to pay the Islamic mahr [dowry], refusal to raise children in a particular faith, refusal to wear the veil, failure to observe religious holidays, etc.," they said. "It has taken the Canadian state centuries to reach the still precarious balance we now have."

Married on July 27, 1969, Ms. Bruker and Mr. Marcovitz of Montreal signed an agreement setting out how they would settle matrimonial disputes if their marriage broke down. It included a commitment to attend a rabbinical court in order to obtain a get.

However, when they did split up in 1980, Mr. Marcovitz, 65, refused to adhere to the agreement he had signed. He also disparaged his wife's devotion to her religion and accused her of restricting his access to his daughters. He said the courts could not intrude into the dispute without violating his religious freedom guaranteed under the Quebec Charter of Human Rights and Freedoms.

Lawyers for Ms. Bruker countered that the agreement was an enforceable contract. They sought monetary damages on the basis that Ms. Bruker had been unable to remarry and any children she might have would not be seen as "legitimate" within her faith.

In 1995, Mr. Marcovitz relented, agreeing to grant a get. But it was too late. By this time, Ms. Bruker was 46, unmarried and past child-bearing age.

"This represented an unjustified and severe impairment of her ability to live her life in accordance with this country's values and her Jewish beliefs," Judge Abella wrote for the majority. "Any infringement of Mr. Marcovitz's freedom of religion is inconsequential, compared to the disproportionate disadvantaging effect on Ms. Bruker's ability to live her life fully as a Jewish woman in Canada."

Judge Abella said that the matrimonial agreement the couple signed was akin to a binding contract. Only a male can consent to a get, she added, and the Jewish community generally disapproves of a man who refuses to grant one.

But Judge Deschamps noted in her dissenting reasons that, under both Canadian and Quebec law, nothing prevented Ms. Bruker from remarrying if she chose to do so.

"Only her religious rights are in issue, and only as a result of religious rules," she said. "Where religion is concerned, the state leaves it to individuals to make their own choices. It is not up to the state to promote a religious norm. This is left to religious authorities ... In short, contract law cannot be relied on to enforce religious undertakings."

Source: Globe & Mail, December 15, 2007