Russia Accedes to Hague Child Abduction Convention

On Thursday, 28 July 2011, the Russian Federation deposited its instrument of accession to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. The Convention will enter into force for the Russian Federation on 1 October 2011.

The treaty will not be in force between Russia and The United States until the United States has accepted Russia's accession.

As is the case with many countries, including the USA, Russia has made a reservation with respect to Article 26, stating that "The Russian Federation in accordance with Article 42 of the Convention shall not consider itself bound by the obligation to assume costs, as provided for in the second paragraph of Article 26 of the Convention, resulting from the participation of the legal counsel or advisers or from court proceedings, except for those costs that may be covered by its system of legal aid and advice."

Hungary Violates the Hague Convention on Abduction

Having worked on international child custody matters concerning Hungary for several years, and having consulted with Hungarian counsel on such issues, it is unfortunately clear that Hungary does not comply with its obligation under the Hague Abduction Convention to promptly return children who are wrongfully taken to Hungary or retained in Hungary.

My conclusions have now been reinforced by a decision of the European Court of Human Rights, issued July 22, 2011, in the case of Shaw v. Hungary (a case with which I was peripherally involved).

The problems include the following:

·         -Custody and visitation cases are not completed within the requisite time limitations. This is often a result of lengthy disputes on preliminary jurisdictional matters. It is also because of the work overload of Hungarian judges. Consequently it often take eighteen months or more for first and second instance courts to issue a final ruling. The Hungarian Supreme Court’s procedures may then take another year.

·         -Hungarian courts frequently misinterpret the Hague Convention’s terms, such as “habitual residence,” in favor of the taking parent.

·         -There is no effective procedure within Hungary to enforce court custody orders. Pursuant to the governing Hungarian legislation, the enforcement of final and effective judicial custody and visitation decisions is not within the competence of the court handling the Hague case. The body that is responsible for enforcement cases is the local “Custody Authority.” The Custody Authorities do not have sufficient coercive power and their procedure is slow and inefficient. As a result, even a favorable Hague decision is often completely futile because it is not enforced.

·        - It typically happens that if, as and when enforcement is finally employed, the taking parent cannot be found. The “bailiff” cannot issue a search warrant with criminal consequences but merely reports the matter to the police.

·         -Hungary will not recognize and enforce foreign custody orders.

·         -The passage of time in such circumstances typically leads to the child becoming well integrated into the new environment, which helps to create new defenses for the taking parent.

·        - It is common for the taking parent to successfully preclude the left-behind parent from having any contact with the child during the lengthy court proceedings, thereby enabling a psychologist to subsequently declare that there would be a “grave risk” of harm to the child if the child were sent back to the former residence, especially if tha taking parent were not to accompany the child.

In the Shaw case the European Court of Human Rights ruled that Hungary had violated its obligations under the European Convention on Human Rights by failing to diligently process a Hague case brought by an Irish father to secure the return of his child from Hungary to France, where they lived, following the parents’ divorce.

A court in Pest, Hungary ordered the child’s return and two appeal courts upheld the return order. The local bailiff twice unsuccessfully called on the mother to comply voluntarily with the court’s order. Meanwhile, a French court issued a European arrest warrant for the mother for the offence of change of custody of a minor. She was then arrested in Hungary but was promptly released by the Budapest regional court on the ground that similar proceedings were pending before a Hungarian court. The mother then disappeared with the child and has not been located.

The father complained to the European Court of Human Rights that the Hungarian state had violated his rights under article 8 of the European Convention on Human Rights, upholding private and family life, by failing to take timely and adequate measures for him to be reunited with his daughter.

The Hungarian government claimed that it had had done everything possible to ensure the child’s return to her habitual place of residence, but the absconding of the mother with the child had temporarily prevented the authorities from taking further measures.

In its judgment, the Court noted that 31 weeks had elapsed since the first claim before the Hungarian courts and their final decision, contrary to the obligation under the Hague Convention to issue a judgment within six weeks. It found that that alone amounted to a violation of the Hungarian state’s obligations under the Convention.

The Court also found that the authorities also failed to take adequate and effective measures to enforce the return order for almost 11 months after the delivery of the final enforceable judgment and that no attempt was made to enforce the return order on the day when she was finally arrested.

Finding that the Hungarian state had violated the father’s rights to family life, the Court ordered the payment of €20,000 for the anguish and distress he had suffered as a result of the insufficient measures taken by the Hungarian authorities and awarded €12,000 for legal and related expenses.

Expert testimony: Chinese Family Law and Potential International Child Abduction to China

In what the Court described as a “very difficult case” between two Chinese parents living in Georgia -- one of whom (the child’s mother) faces deportation to China for lack of an immigration visa and had asked the Court to give custody of the parties’ child to her and to authorize her to relocate the child to China – the Court relied upon my expert testimony as to Chinese law and practice concerning child custody and child abduction in cases of an international dimension. Zhang v. Zhang, DeKalb County Superior Court, 7-14-11.

The Court twice stated that it was giving “great weight” to my testimony.

Thus it stated that, “from what the Court has heard from Mr. Morley, whom the Court has given great weight” and “I have to also balance that with the facts presented by the defense by Mr. Morley -- who the Court gives great weight to his testimony –.”

The ultimate decision gave custody to the father in the United States and followed my suggestion that any visitation with the mother outside the United States should be in a country such as Singapore or Hong Kong with a reliable legal system and which was a party to the Hague Abduction Convention.

The case shows that those countries who have not signed the Hague Convention on child abduction and who do not have an independent and reliable family law system are rendering a grave disservice to their own citizens.

Since the Chinese legal system cannot be trusted to return internationally abducted children, Chinese nationals who reside with their children outside China should normally not be permitted to take their children to visit China if the potentially left-behind parent objects.

Korea and International Child Abduction

Korea is not a party to the Hague Abduction Convention. The United States is now consistently urging Korea to join the international community in signing the Convention.

The article below presents the United States position.

Korea should ratify the Hague Abduction Convention to help resolve international child abduction by parents.

By Cynthia Sharpe, Consul General and Minister Counselor for Consular Affairs for the U.S. Embassy in Seoul.

As a 21st century regional and global leader, countries around the world look to Korea as a role model. Korea’s commitment to cooperate with other nations in the peaceful and orderly adjudication of legal disputes is an influential example of responsible global citizenship. Few, if any issues are more important than the protection and welfare of children.

Korea’s ratification of the Hague Convention on the Civil Aspects of International Child Abduction, an important tool of international cooperation on cases involving the separation of parents and children, would be a strong statement on the importance of protecting children.

In this era of modernization and globalization, a growing number of people from different cultures are forming families and welcoming children into their lives. Unfortunately, a small percentage of those relationships end acrimoniously, with parents facing difficult decisions on how to meet their child’s fundamental need for parental contact and support, while balancing their own needs as they adjust to the reality of a broken relationship.

When one parent deprives the other parent of access to their child by abducting the child to another country without their permission, it is referred to as “International Parental Child Abduction.”

International Parental Child Abduction is a tragedy that not only deprives and jeopardizes children but has substantial long term consequences for the parent, and family members left behind.

Children who are abducted by one parent and taken to a foreign environment are suddenly isolated from the security of a familiar environment, extended family, friends and classmates. They are at risk of serious emotional and psychological problems in their sudden isolation, often believing they have been abandoned by one of their parents.

Similarly, the parent who is left behind copes with feelings of betrayal, loss, anger and depression. When their child has been taken to a foreign country, the parent left behind is faced with unfamiliar legal, cultural and linguistic barriers that compound emotions of helplessness, loss and grief.

To protect the rights of parents and children throughout the world, nations came together in 1980 to sign The Hague Abduction Convention. This Convention created an agreed civil legal mechanism available to parents seeking legal remedies when their children have been taken to other countries without their consent.

The Abduction Convention does not address who should have custody of the child, or where the child should live.

It addresses the question of under which legal jurisdiction a parental child custody case should be decided. Under the Hague Abduction Convention, it is generally held that the country of the child’s habitual residence is determined to be the appropriate jurisdiction where the legal authorities in that country should make a parental custody decision in the best interests of the child.

The Hague Abduction Convention exists so that nations with diverse legal frameworks can work together to solve international legal disputes. Korea is a Hague member country and has already ratified several other Hague Conventions, including the Convention on Abolishing the Requirement of Legalization for Foreign Public Documents and the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters.

Utilizing the Hague convention process in International Parental Child Abduction cases assists in bringing a swift conclusion to the separation between a child and his parents and lessens the significant emotional and psychological damage caused by the unlawful international parental child abduction.

Korea recently naturalized its 100,000th foreign-born citizen. The vast majority of the naturalized citizens came to Korea within the last 10 years. The number of foreign citizens living and working in Korea surpassed the one million mark for the first time in 2010.

Korea’s increasingly multicultural and diverse society will soon encounter many more situations in which Korean citizens, both children and parents, will be negatively affected by the anguish caused by international parental child abduction.

Without a legal mechanism such as The Hague Abduction Convention to address this heartbreak, Korean parents could be separated from their own children with little possibility of resolution.

By showing the foresight and wisdom to address this issue, Korea demonstrates it is both a citizen of the international community and a trailblazer for progressive civil society in East Asia.

Prenuptial Agreements in Japan

By Jeremy D. Morley

We have represented many international clients who have entered into marriage contracts or prenuptial agreements with Japanese spouses. We always work in collaboration with Japanese counsel in such matters as appropriate and as instructed by our clients.

Prenuptial agreements are not common in Japan. They have never been a part of Japanese culture, even for the upper classes.

A cynic would say that wealthier spouses do not demand a prenuptial agreement because they believe that if there is a divorce they will be able to avoid disclosure of their assets or divert their assets and that they will be able to pay a relatively modest amount to their spouse to settle the matter so as to avoid litigation, which is extremely uncommon and extremely unhelpful in family matters.

Others might say that prenuptial agreements are inappropriate because they contemplate a divorce when a marriage implies a lifelong commitment.

There is a dearth of useful Japanese case law concerning the validity of specific clauses in a premarital contract or the effect of such a contract.

Nonetheless it is accepted that prenuptial agreements are generally enforceable in Japan, provided they are well drafted and in conformity with the provisions of the Civil Code and other provisions of Japanese law.

In Japan, Article 26 of the Act on the General Rules of Application of Laws (http://www.international-divorce.com/horei_law.htm) authorizes spouses who marry in Japan to choose which matrimonial law regime will govern their marriage, provided it is either the law of the country of either spouse’s nationality or habitual residence or, regarding immovables, the law of the location of the immovables. The same law also specifies that prenuptial agreements are valid when made under the provisions of a foreign law, and sets forth a provision for registration of foreign prenuptial agreements in Japan.

The Japanese Civil Code also contains important provisions that authorize prenuptial agreements. Article 755 provides that, “The property rights and duties of a husband and wife shall be prescribed by the following subsections, unless they entered into a contract setting forth otherwise, regarding their property before giving notification of the marriage.”

Article 756 provides in essence that registration is needed in order to bind third parties but not in order to bind the spouses themselves.

Forum selection clauses are widely upheld by Japanese courts. Their validity in prenuptial agreements that preclude the jurisdiction of Japanese courts will likely be upheld if the matter in question is not within the exclusive jurisdiction of the Japanese courts, and if the court designated by the agreement would have jurisdiction over the matter in question, independently, under the law applicable in that forum.

While a prenuptial agreement may determine the choice of the marital regime it is uncertain whether terms concerning other matters would be upheld in Japan. The issue often arises with regard to terms that purport to reduce or eliminate future alimony (spousal maintenance) obligations. Alimony per se cannot be awarded in Japan but clients often want a Japanese contract to handle the issue of alimony in the event that a divorce is sought in a court outside Japan. Similar questions arise as to terms designed to limit the inherent power of a court in Japan to make awards to protect the financial wellbeing of a spouse.

It seems to be well accepted in Japan that any prenuptial agreement will be subject to potential review for compliance with Japanese public policy.

Prenuptial agreements for international people residing in Japan, or for anyone marrying a Japanese national wherever in the world the couple currently reside, need to be drafted with great care and international savvy.

The initial decisions that must be made by qualified and experienced international counsel in such situations include:

• Should Japan be the “home” of the agreement or would it be preferable to draft the agreement under another law and then have local but experienced counsel in Japan review the agreement for compliance with local form and appropriateness?

• Should the agreement be in the typical long form of an American prenuptial agreement or should it be a pared-down version that will more likely be understood by a Japanese-speaking spouse, by a Japanese lawyer advising that client and a Japanese court that might be called upon to interpret the agreement?

• Should the agreement contain a choice of court clause as well as a choice of law clause?

• Should the agreement cover spousal maintenance as well as the division of assets?

• Should there be more than one agreement, so that if one fails the other might come into play? If so, which one should have priority and how should that be stated?

Israel’s Religious Divorce Requirement Discriminates Against Women

Israel’s divorce law requires that Jews in Israel must be divorced only in the Jewish religious courts.  Clearly this discriminates against women since only a husband has the right to grant his wife a divorce (a “get”) of his own free will. This religious requirement leads to a host of further discriminatory consequences.

The 1979 Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”) has now issued a report concluding that Israeli law in this regard is discriminatory and should be changed.

The Israeli member of the panel, Ruth Halperin-Kadari, -- who is a well-recognized legal scholar and the head of Bar-Ilan University's Rackman Center for the Advancement of Women's Status – reportedly applauds the demand (see the Haaretz article below).

She states that that this is the first time that a UN committee has so clearly stated that Israel must allow civil marriage and should do all it can to end the discrimination against women in family law.

The UN report states that:

"Noting that all Jews in Israel can be married and divorced only in the rabbinical courts, which are male dominated and completely governed by religious law, the Committee is concerned about discrimination against women in the context of divorce in such courts, in that only the husband has the right to grant his wife divorce (the “get”) of his own free will. The Committee also expresses its concern at recent cases of retroactive invalidation of divorce, to the detriment of Jewish women. The Committee is further concerned about the continuing practices of polygamy and under-age marriage of girls that are legitimized under different religious laws governing personal status.

49. The Committee calls upon the State party to:

(a)     Introduce an optional system of civil marriage and divorce available to all;

(b)     Harmonize religious laws currently governing marriage and divorce with the Convention and eliminate provisions that are discriminatory against women, including by prohibiting the man’s unilateral power to grant the “get”, prohibiting the possibility of extorting concessions from women in return for the “get” as well as the practice of retroactive invalidation of divorces, and by further limiting the scope of rabbinical courts' jurisdiction to matters of marriage and divorce alone;

(c)     Ensure that rabbinical court judges are provided with training on the Convention, with special emphasis on article 16 as well as domestic violence;

(d)     Take active measures to enforce the prohibition of bigamy and current exceptions under which it is allowed and polygamous marriages, as called for in the Committee’s general recommendation No. 21; and

(e)     Take effective measures to enforce adherence to the minimum age of marriage, and, in this respect, take measures to raise the minimum age of marriage to 18 years for both women and men."

The Haaretz article states that:

"UN committee: Israel must allow civil marriage

Haaretz, July 5, 2011

There is no meaningful equality in Israel between men and women when it comes to matters relating to marriage and family relationships, according to a new UN report.
The report was compiled by a panel of experts overseeing implementation of the 1979 Convention on the Elimination of All Forms of Discrimination Against Women. The panel submitted its conclusions to Israeli authorities in February of this year.

The panel, which includes representatives from several countries, receives reports on gender issues every four years. These reports are based on each country's official statistics, as well as reports by non-governmental organizations, and interviews of state officials conducted by the panel members.

Prof. Ruth Halperin-Kadari, who heads Bar-Ilan University's Rackman Center for the Advancement of Women's Status, is a member of the panel. The Rackman Center is about to publish a guide to the international convention and the conclusions of the oversight committee that will include the recommendations made to the Israeli authorities.

"There's a huge gap between rights that are formally granted, and the lack of implementation and enforcement of the laws," said Halperin-Kadari.

Halperin-Kadari added that this was the first time that a UN committee had so clearly stated that Israel must allow civil marriage and do all it can to end the discrimination against women in family law.

The committee also stated that domestic violence and violence against women were still widespread in Israel. The panel also expressed concern over the scope of trafficking in women and the wide income gaps between men and women"

Filing Jointly Can Be Dangerous

Here is a scary article in the current issue of Forbes concerning the potential dangers of filing a joint U.S. tax return.

Marriage Trap: Before you sign a joint tax return, consider the consequences--and these IRS horror stories.

Robert W. Wood, 06.27.11

www.forbes.com/forbes/2011/0627/money-guide-11-tax-joint-return-irs-wedding-marriage-trap.html

For better, for worse, for richer, for poorer," goes the classic wedding vow. Nothing in that vow requires you to file a joint tax return with your spouse. Yet 95% of married couples check the "married filing jointly" box on their 1040 each year. Even couples with prenuptial agreements and those who hold assets separately routinely file jointly.

Why some do so is a mystery--a mystery that, thanks to Internal Revenue Service policies, can turn into a horror flick worthy of Alfred Hitchcock. True, filing jointly often produces modest tax savings compared with electing "married filing separately" status. But it also means each spouse is 100% liable for all taxes and penalties owed.

So if you're an employee who has the tax owed on your salary withheld from your paycheck and your spouse is self-employed and gets behind on his or her estimated tax payments (a too common occurrence), you're both on the hook for the back taxes.

More egregiously, if one spouse has unreported income, gambles away the tax money, lies about offshore bank accounts or just disappears (even with a paramour), the other is on the hook. Plus, IRS collection agents may come after the wronged spouse first--if that spouse has income and assets that are easier to grab.

Wait a minute. Isn't there some special protection in the law that allows an "innocent spouse" to be relieved of joint tax liabilities? Yes, but the miserly way in which the IRS administers this congressionally created protection means that such a spouse may have to go to court for relief.

Example: In January the U.S. Tax Court overruled the IRS' refusal to grant relief to an impoverished high school dropout who had been physically and emotionally abused by her ex-husband (Stephenson v. Commissioner, T.C. Memo. 2011-16). In another stunning case (Sunleaf v. Commissioner, T.C. Memo. 2009-52) the Tax Court ordered the IRS to provide relief to a 70-year-old disabled and retired nurse who discovered financial chaos after the death of her husband of 38 years, a lawyer. He had hidden his debts from her by having bills sent to a post office box.

But innocent spouses can't always count on the courts, either. Last year an appeals court backed up the IRS' decision to deny relief to Cathy Lantz, a financially unsophisticated woman whose dentist husband was convicted of Medicaid fraud. There was no suggestion she was aware of the fraud or the unreported income from it. But the court said (Lantz v. Commissioner, 7th Cir. 2010) the IRS could deny her relief based on a rule requiring innocent spouse applications to be filed within two years of the start of an IRS collection action. Lantz's husband had said he'd apply for her but died in a prison halfway house before doing so, leaving her with a blown deadline and a $1.3 million tax debt.

Under pressure from Congress the IRS is now reconsidering the application of the two-year rule and might allow additional time in some cases. That's might, not will.

Besides, there's no suggestion the narrow standards the IRS uses to determine innocence will suddenly become more forgiving. So if you want to avoid a potential tax mess, file separate returns. At a minimum run the numbers both ways so you can evaluate whether any joint filing tax savings are worth the risk.

Philippines Divorce Law?

The Philippines, one of a tiny number of countries to still outlaw divorce, is now engaged in a serious legislative debate as to whether to legalize divorce. The committee on revision of laws has just held its first hearing on House Bill 1799 (An Act Introducing Divorce in the Philippines). One Representative insisted that the divorce bill contravenes a provision in the Constitution concerning the “inviolability of marriage” and the state’s mandate to protect it, insisting that the Constitution would need to be amended prior to any bill purporting to legalize divorce. Another Representative asserted that if divorce is unconstitutional, then annulment and legal separation which are allowed under Philippine law, would also be unconstitutional. Another argument, citing American practices such as Elizabeth Taylor’s six divorces,  was that having a divorce law would “open the floodgates for marriages and families to be broken . . . by mere irreconcilable differences.”

A lawyer and law professor, Evalyn Ursua, informed the committee that the country already has a de facto divorce law in the provision for annulment, but she explained that poor couples cannot avail themselves of this because it is expensive and time-consuming. She said that an absolute divorce bill would address the problems of Filipinos abroad. Many Filipinos who work overseas return to the Philippines and find out that their spouse already has another partner. Some obtain dual citizenship to be able to get a divorce abroad because it’s not available in the Philippines. This is pursuant to the statutory provision that where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law.

International child abductions up sharply: US official

By Karin Zeitvogel (AFP) – 22 hours ago

WASHINGTON — International child abductions are "sharply on the rise," the US State Department's official in charge of children's issues said Wednesday as Americans marked Missing Children's Day. Family members abduct more than 200,000 children every year in the United States, and last year nearly 2,000 children were kidnapped by one of their parents and illegally brought into or taken out of the United States, Susan Jacobs, the State Department special adviser on children's issues said. In US fiscal year 2006, 642 children were abducted from the United States by one of their parents, a report released two years ago by the State Department found.

That rose to 794 children for the same 12 months in 2007 and to 1,082 in 2008, according to the report. In 2008, 484 children were abducted to the United States, and only 361 children who were illegally taken out of the United States by a parent were returned, the report said. The rise in international child abductions by parents was "a disturbing trend," Jacobs said. Children who are kidnapped and taken out of their country of usual residence are "at risk of serious emotional and psychological problems," while left-behind parents have to deal with numerous obstacles as they battle to get their children back or even just for the right to see them again, she said. "They confront unfamiliar legal, cultural and linguistic barriers, suffer emotional trauma and face significant and long-term financial costs," said Jacobs, who was appointed last year to head the State Department's Office of Children's Issues (OCI).

The OCI is the central authority in the United States for the 1980 Hague Convention, an international agreement that requires kidnapped children to be returned promptly to their country of habitual residence.
It is also one of the fastest-growing offices in the State Department, "which sadly reflects the growth of international child abduction," Jacobs said. Jacobs was speaking a day after dozens of left-behind parents testified on Capitol Hill about the pain of having a child kidnapped by a spouse, and about parents' frustration in dealing with the OCI. Carlos Bermudez, who has been battling for three years to bring his son back from Mexico where he was taken at the age of one by his mother, said the OCI was unhelpful, mired in red tape, and more concerned with maintaining good international relations than bringing back kidnapped children. The OCI advised him badly, refused to give him legal advice and "essentially set me up for the failure of the Hague application for my son's return" to avoid a "potentially damaging international incident."
"They view American children's loss of their American families and heritage as acceptable collateral damage... We cannot continue to offer up our abducted American children as sacrificial lambs at the altar of pleasant bilateral relations," he said. Jacobs told AFP she was "deeply sorry that parents feel that we are not assisting them because I can assure you, that is our goal -- it's to help them resolve these horrible problems."

Copyright © 2011 AFP. All rights reserved

Link to Article

CNN Article: Japan takes a step closer to reforming its child custody laws

By Tricia Escobedo, CNN

May 21, 2011 1:17 a.m. EDT

(CNN) -- Bowing to intense international pressure, Japan has taken a step closer to changing its international child custody policies.

The Japanese Cabinet on Friday approved a plan that would bring the country's laws in line with the Hague convention on international child abduction, according to Prime Minister Naoto Kan's office. The plan basically requires an overhaul of Japan's family law system. It would put the Foreign Ministry in charge of the cases related to international child abduction, including finding abducted children, taking measures to prevent child abuse and advising parents on the voluntary return of children, according to a statement from Chief Cabinet Secretary Yukio Edano. The legislation would take into account child abuse, spousal abuse and a parent who faces criminal charges in his or her home country, the statement said. The plan approved by the Cabinet will be considered by Japan's legislature, where it is expected to face some resistance.

Even if it is approved, it could take years before Japan is ready to sign the Hague convention, which calls for the signatories to abide by the court rulings of each member country. Japan has been under intense international pressure to change how it deals with international child custody arrangements, particularly since the case of Christopher Savoie in 2009. Savoie, an American, triggered international news headlines after his arrest on child abduction charges in Japan. His two children had been taken to Japan by his ex-wife, despite a U.S. court order requiring Noriko Savoie to remain in the United States. Savoie traveled to Japan, where he has citizenship, and reclaimed the children, then headed for the nearest U.S. consulate, where he was arrested at the front gate. The charges were later dropped when Savoie agreed to return to the U.S. without his children.

Because Japan is not a party to the Hague convention on international child abduction, Tokyo did not recognize the U.S. court's ruling nor the subsequent arrest warrant for Noriko Savoie.
Savoie's case shone a light on hundreds of other similar situations in which Japanese ex-spouses have taken their children to Japan despite custody arrangements in the United States. Japan's current system does not recognize shared custody, even among the country's own citizens who reside in Japan.
"It's finders keepers -- possession is 99.9 percent of (Japan's) law," explains international family law attorney Jeremy Morley, who represented Savoie. That means it's extremely rare that a child of divorced parents in Japan will spend every other weekend at Mom or Dad's house -- a typical situation for children of divorced parents in the U.S. and other Western countries. "The other parent disappears completely," Morley said.

Morley, who has represented more than 100 parents, most of them fathers, called Friday's decision "a baby step in the right direction" for Japan. But he says that even if the country signs the Hague convention, it will have no effect on Savoie or any of his other clients. "It will certainly not help those people who have thus far lost children to Japan, because it will only take effect when it's put into force," Morley said. "It's definitely not going to be retroactive." However, if Japan truly overhauls its family law system -- instead of making "purely cosmetic" changes to please international critics -- that could bode well for his clients. "If they completely restructure their system so they can enforce court orders and ... have an environment where both parents have a right to participate in the life of their children after separating, that's going to take a long time," Morley said. "If they go through another charade, and the changes are purely cosmetic, that can happen much faster. So I hope, in a way it does take a long time."

The U.S. State Department acknowledges that "abductions to Japan represent one of the largest portfolios in the Office of Children's Issues and are among the most difficult to resolve." Since 1994, there have been 321 children abducted to or wrongfully retained in Japan, it said. None of those cases has been resolved. Morley credits Secretary of State Hillary Clinton with helping put pressure on Japan to change its system. However, he says there is tremendous opposition within Japan to the Hague convention. "There's a prevailing view that the Japanese mothers, who are the ones primarily removing children, are running back home to the safety of Japan because their American husbands are wife beaters," he said. He says he thinks Japan could address this concern by "watering down" any changes it makes to its family law system ahead of signing the Hague convention. Morley and Savoie have denied any physical abuse, and there have not been any charges. This month, a Tennessee court ordered Noriko Savoie to pay her ex-husband $1,000 each day she continues to "falsely imprison" the two children. The primary concern of Japan's government in deciding this matter will be "to ensure the welfare of children," Foreign Ministry spokesman Hidenobu Sobashima said Thursday. "Of course parental rights are important, too, and we should take into account the father's views and the mother's views," Sobashima said. Until then, Morley says, his clients -- even those lucky enough to see their children for an hour or two in a Japanese courtroom once a month -- will continue to be cut off as parents to their children.

CNN's Yoko Wakatsuki and Kyung Lah contributed to this report.

http://www.cnn.com/2011/WORLD/asiapcf/05/20/japan.child.custody.law/

U.S. State Dept. Issues Hague Abduction Convention Compliance Report

The U.S. Department of State (“Department”), Office of Children’s Issues (CI), U.S. Central Authority has issued its report on compliance with the Hague Convention on the Civil Aspects of International Child Abduction, covering the period from October 1, 2009, through December 31, 2010.

Notable points:

     1.  St.Kitts and Nevis was determined to be not compliant with the Convention.

2.     2.  Bermuda, Brazil, Bulgaria, Burkina Faso, Honduras, Mexico and the Bahamas showed “patterns of noncompliance with the Convention.”

3.     3.  15 countries were “Countries with Enforcement Concerns” in which left-behind parents in the United States have not been able to secure prompt enforcement of a final return or access order during the reporting period. This includes an order resulting from a Hague proceeding; a U.S. custody, access or visitation order; or an access or visitation order by authorities in the country concerned, where the lack of enforcement is because of the absence of prompt and effective enforcement mechanisms, the lack of recognition of comity, or other factors. These countries were Argentina, Australia, Austria, Costa Rica, France, Germany, Honduras, Hungary, Israel, Romania,  South Africa, Spain, Switzerland and Turkey.

4.    4.  The State Department reported on the appointment of Ambassador Susan Jacobs as the first Special Advisor for Children’s Issues and her efforts to encourage Armenia,  Bangladesh, China, India, Japan, Laos, Nepal, the Philippines, Singapore, South Korea, Russia, Saudi Arabia, South Korea, Timor-Leste and Zambia to become parties to the Convention, as well as discussions with Fiji and Thailand,  whose accession the United States has yet to accept under Convention.

5.    5.  The State Department reported on 18 countries where applications for return had remained open for more than 18 months after the date of filing. These are Argentina (three cases), Belgium, Brazil (6 cases), Canada (3 cases), Colombia (2 cases), Costa Rica, Ecuador, France (2 cases), Greece, Honduras (2 cases), Israel  (2 cases), Mexico (82 cases), Netherlands, Peru (3 cases), Romania, Slovakia, Spain and Turkey (2 cases).