After years of intense pressure from the United States government and governments of the European Union, the government of Japan recently announced its intention to join the Hague Convention relative to child custody. At the present time, Japan is the only major industrialized country that has not signed the treaty. And, Japan is the only member of the Group of Seven (G-7) leading nations which is not a party to the treaty. The G-7 countries which have adopted the Hague Convention are France, Germany, Italy, the United Kingdom, Canada, and the United States.
The Hague Convention, also known as the Hague Convention on the Civil Aspects of International Child Abduction or the Hague Abduction Convention, was signed on October 25, 1980. Its effective date was December 1, 1983. As of April 2011, eighty four (84) states/countries are parties or signatories to the Convention. The primary objective of the Convention is to preserve whatever status quo child custody arrangement existed immediately before an alleged wrongful removal or retention of a child or children. Stated in the alternative, the Convention provides that the Court in which a Hague Convention action is filed should not consider the merits or any underlying child custody dispute, but should only determine the country in which those issues should be heard.
The Hague Convention was designed for the primary purpose of protecting children from the harmful effects of being “abducted” by their Fathers to their Fathers’ native countries. In reality and at the present time, there have been far more cases wherein Mothers have absconded with and taken their children back to their home countries and away from the children’s country of residence.
It is extremely important to citizens of our country to have Japan join the Hague Convention. There are over 136 minor children presently being held in Japan against the will of the United States and against the will of their American parents, mostly Fathers! And, because Japan has not become a member of the Hague Convention, Fathers whose children have been wrongfully abducted to Japan have no legal recourse in obtaining custody or visitation with their children. Even if Fathers have a valid Divorce or Dissolution Decree granting them “custody” of their child(ren), the country of Japan will not enforce any of those court orders.
While the affected parents of the children currently being held in Japan are elated and excited about this recent news, the entire process could take years to accomplish. The process could be lengthy for many reasons including:
- Japan’s proposal to join the Hague Convention must be “passed” by the legislative branch of the government, the Diet. And, there is opposition to its passage by some members who believe that the Mothers returning to Japan with their child(ren) do so because of domestic violence or child abuse issues. Also, Japan has an interest in protecting its citizens from being arrested by agents of our government for “wrongful abduction”.
- Japan would have to essentially write, develop, and implement a whole new body of family law. While the country has laws regarding the termination of marriage by divorce, their statutes are lacking in laws relative to visitation, companionship rights, parenting time schedules, child support, health insurance, and payment of health-related expenses. It will certainly take much time and effort for a new body of family law to be formulated and implemented.
- Japan would have to develop a “clearing house” to locate and identify children who have been wrongfully removed from our country and other countries and who are being held against the will of the other parent or in violation of a custody order.
- Japan may have to develop an administrative hearing body to “hear” and “decide” these cases, i.e. where should this “custody” proceeding be heard?
Also, it must be noted that many scholars believe the new statutes would be prospective in nature, meaning the new laws would not affect the 136 American children presently being wrongfully held in Japan. If you can recall playing the game “Mother May I” in grade school, the decision of Japan to join the Hague Convention could be likened to receiving the direction to take a “very, very small baby step forward” rather than being directed to take “ten giant steps forward”! Still, for many persons affected by the present family laws of Japan, a “very, very small baby step” can still be seen as forward progress!
I have written several articles about a Dayton father whom I have represented whose children were abducted by their mother to Japan. Kent Swaim, who was granted custody by our local Court, is doing everything possible to hopefully be reunited with his children. A tragic situation! Click here to read more about Kent’s plight.
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Anne Shale is of counsel to Dayton, Ohio, law firm, Holzfaster, Cecil, McKnight & Mues. She is a former registered nurse and concentrates her practice in Family Law and Divorce cases.