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International Parental Child Abduction: Japan, Part IV

20 Apr

CIVIL REMEDIES

U.S. parents’ and local attorneys report that Japanese courts generally do not recognize U.S. court orders. A parent holding a custody decree issued in U.S. courts should retain local Japanese counsel for advice to determine whether to apply to the Japanese district courts (not family courts) for recognition of the U.S. court order. Even if the U.S. court order is recognized by the district court and a judge agrees that the child should be returned to the United States, attorneys have informed the embassy that there are no clear, reliable enforcement mechanisms to ensure compliance with the order.

Japan’s Ministry of Foreign Affairs informed U.S. government representatives about some of the many obstacles involved in gaining recognition of a U.S. custody order in Japanese courts. In order to recognize a foreign court order, the Japanese court must find that it is a final and binding judgment under conditions in which both sides had procedural protections of their legal rights. The Japanese family law system draws an important distinction between custody orders that merely determine or transfer custody (keisei hanketsu or a ‘formative judgment’) and a decision that explicitly orders one party to surrender a child to another (kyufu hanketsu or ‘judgment ordering performance’). It is only this second type of order (kyufu hanketsu) that the Japanese courts will recognize as a full and binding judgment. At this time, the State Department knows of very few instances in which a U.S. custody order significantly influenced the outcome of custody proceedings in Japan.

The Japanese Family Court hears custody disputes and normally resolves the issue based on the best interests of the child. However, there are no statutory factors to guide courts charged with determining the child’s best interests. Also, there are limited mechanisms to enforce Family Court orders. While a parent can request the court to recommend fining the non-compliant parent, there is no evidence that these fines are effective. Compliance is essentially voluntary and dependent upon the agreement of both parents. Embassy experience is that Japanese police are reluctant to get involved in custody disputes or to enforce custody decrees issued by Japanese courts.

Family Court orders can be appealed to a high court. High court orders may be appealed to the Supreme Court in limited circumstances. Relevant statutes include the Personal Affairs Litigation Code (Jinji soshoho), the Law for Adjudgement of Domestic Relations, andJapan’s Civil Code, Book 4, Art. 766.


CRIMINAL REMEDIES

International parental child abduction is not a crime in Japan. Because the extradition treaty between Japan and the United States requires “dual criminality;” that the crime for which a Japanese national is charged in the United States is also a crime in Japan, a Japanese taking-parent has never been extradited from Japan to face criminal charges for international parental child abduction in the United States.

Interpol notices that inform immigration authorities about an international parental child abduction case from the United States may be useful to help locate a child when a Japanese taking-parent transits a third country with whom the U.S. has an extradition treaty relationship.

Although international parental child abduction is not a crime in Japan, using force to take children is, and both Japanese citizens and foreigners have been arrested for using force when allegedly kidnapping their children. Also, foreigners have been arrested for attempting to flee Japan with their children. The embassy is not aware of any Japanese parent being charged with child abduction for bringing his/her child to Japan from another country, notwithstanding charges of child abduction filed in the other country.

The embassy’s experience has shown that the police will not assist with the search for a child abducted by a parent (domestically or internationally) because of the widely-accepted cultural view that custody should be handled within families and there is no cause for concern if the child is with one of the parents. Japan’s strict privacy laws prevent police and other officials from releasing information about the location of an abducted child.
VISITATION/ACCESS

Japanese civil law does not address visitation; however, court judgments addressing custody may provide for visitation by the non-custodial parent. Lawyers and divorced parents in Japan have told embassy officials that visitation orders are not enforceable.

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Posted by on April 20, 2012 in Uncategorized

 

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