Foreign mother with custody?

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I left my Japanese husband on holiday whilst visiting my parents. He agreed to our separation and allowed me to retain our son. Our marriage took place in Tokyo under Japanese law and we resided there for about three years. Our son has dual British/Japanese nationality and was born in Tokyo. The reason for the separation was domestic violence and since then I have been awarded a divorce in the English courts and in a seperate hearing full residencey "custody" and a prohibative steps (the later alerts the port authorities if he is snatched). At this time my former husband was resident in Japan. (Although I have full custody I have not prevented my former husband visiting my son - he has just not asked to do so!)

Following the English court decision I received papers from the Japanese family court in Tokyo asking me to respond to my former husband's demand for a divorce on the grounds of abandonment, he also wants custody of our son and 1 million yen compensation. From all that I read on the Internet the Japanese courts are likely to discriminate against me. I also have custody of our son and since the court decisions are not enforceable is there nothing my former husband can do anyway?

My question is since I already have a prior decision in the UK courts and custody should I challenge my former husband through the Japanese courts? If yes what are the benefits of doing so?

Your advice is much appreciated!!!!
Posted By:
Alison
01/03/2005
Order:
Andrew (51 posts)
02/03/2005 02:29:28
re: Foreign mother with custody?   profile
I also have custody of our son and since the court decisions are not enforceable is there nothing my former husband can do anyway?

I'm sure you are right about the laws not being enforceable. If they are not, then I would simply not worry about them - and certainly never visit Japan for a while - if ever with your son (abduction is a possibility). I just don't see any benefit for you to go over to Japan to represent yourself in his legal action. However, I would get a legal opinion from a lawyer on what you should do - this is a grey area as there may be as-yet unknown consequences about ignoring his legal action. You may need to respond to it without actually going over there. Maybe a lawyer's letter explaining custody arrangements already granted to you in the UK or something.

Your situation is also catch-22 for everybody concerned: if your husband did visit your son, there is a very real possibility of abduction. Maybe your son is doomed to missing one of his parents forever which is a great shame. No matter how bad your ex-husband, he's trapped now - the law makes it "winner takes all" so I doubt you'd really risk a visit from him knowing the stakes. If he does abduct, you will likely never have any real custody of him again, if even see him again. When a Japanese marriage breaks down, it really does break down!
Alison (5 posts)
02/03/2005 13:01:05
re: Foreign mother with custody?   profile
Thank you for your response which is very encouraging and confirms what I have held to be true with regard to my situation! One of the reasons I posted here was to see if anybody had a different view but it seems to me that the conclusions you have drawn are the same as the ones I have come to as well.

I have taken legal advice from three separate Japanese lawyers. It would appear that the UK ruling is invalid in the eyes of the Japanese courts as my former husband, the defendant, was resident in Japan at the time the UK divorce went through. The Japanese courts consider the defendantfs place of residence and therefore in this instance believe the Japanese courts to have jurisdiction on this international divorce case.

What I think I will do is get my English lawyer to write a translated letter to the Japanese courts explaining the prior decision (regardless as to whether the Japanese courts consider it binding or not) and leave it at that. The next stage would be for my ex to bring the Japanese court decision to the UK and I guess Ifd have to take it from there. I have been led to believe that I have a strong case in the UK courts if it went that far.

As to visitation rights – the UK courts do not look favourably on one parent preventing access to the child for the other parent. In my situation, my former husband would be allowed supervised access at special contact centres but as Ifve already written he hasnft actually requested any yet. On the one hand I am sad that our son will miss out on knowing his father but on the other relieved as it reduced the chances of him being abducted.


Thanks again for your opinion and I am happy to hear from anyone if they disagree with what has been said so far.
Andrew (51 posts)
02/03/2005 18:16:38
re: Foreign mother with custody?   profile
As to visitation rights – the UK courts do not look favourably on one parent preventing access to the child for the other parent. In my situation, my former husband would be allowed supervised access at special contact centres but as Ifve already written he hasnft actually requested any yet.

If I were you, I would take the initiative and encourage him to visit his son, given that it can be done in a controlled environment (simply to prevent the abduction risk I'm on about) and also you are a willing custodial parent that isn't trying to prevent him access. Your husband probably doesn't feel it's worth flying half-way round the world if there's even the slightest chance he will be prevented access to his son.You will need to make him feel that he has a 100% guarantee of access. If you could actively set up a meeting (in the controlled environment), this may spur him to come over.

Of course, you need to be careful regarding abduction, but the best solution for your son is that he can see both his parents and not feel he now only has one parent in his life. You may not realise this, but as custodial parent, YOU have the power to dictate whether your son and his father have a relationship or not. At your say-so, you can keep that alive or you can let it die - I would even say it's your responsibility to do your best to ensure this relationship is still possible. Of course, you can't force your husband to come over - that's up to him - but I would say you need to encourage him.

All of this might sound like I'm contradicting myself from what I said earlier regarding abduction, but if you can protect your son from this possiblity through a controlled environment, then I think visitation is definitely possible.

Of course, if Japanese law was different, and they weren't obsessed with shutting non-custodials out of the lives of their children, abduction wouldn't be the serious issue it is.

Edited 02/03/2005 18:21:02
japancustodyhelp (2 posts)
04/05/2005 02:20:08
re: Foreign mother with custody?   profile
A key piece of information in thinking about your situation is whether or not you currently reside in Japan or the UK. If you reside in Japan, you may have some issues. If you reside in the UK you may be more free to ignore him.

The problem becomes if he gets a judgment (or even if he doesn't) and comes to visit you in the UK, if he is able to abduct your son back to Japan you are likely to be completely screwed.

However it is unclear whether the supposed discrimination by Japanese courts in favor of the Japanese spouse outweights the discrimination in favor of the female parent. Some research has been done which shows that the courts will award custody to a non-Japanese spouse provided that spouse will protect the child's Japanese heritage.

At the end of the day, however, the family courts are largely powerless to change the status quo and accordingly can best preserve their authority by ratifying it. Expect no help from them whatever happens.

Alison (5 posts)
10/05/2005 10:31:18
re: Foreign mother with custody?   profile
Thanks for your response.

I have now written to the Tokyo family court. I told them that I already have a UK court decision, I left because of domestic violence and I will not be attending the hearing. However, I will allow access to our son provided a third independent party supervises.

I took this decision on the following grounds:

1. Although the prior decisions in Bedford County Court will not be recognised by the Tokyo Family Relations Court, I in fact live with our son in the UK. I live under UK jurisdiction and it is their laws that apply to me, especially since I have no intention of ever returning to Japan.

2. I wrote the letter for the record. Were my former husband to try to enforce a Japanese court decision in the UK I could show that I had not ignored the Tokyo Family Relations Court but had told them that a prior decision already exists.

3. I feel that even if I went through a lengthy and costly Japanese court case and won, my situation would not be different to the one I am in now. I would have just spent a lot of money!

4. Although I have had continuous care of our son and I know I am a loving and caring mother who is successfully raising her son without any outside financial support my former husband is claiming that I am an unfit mother. He has stated that I am mentally incapacitated and have abused our son. I know these are outrageous lies and I do not want to have my name dragged through the courts if it is not absolutely necessary.

5. Since Japan has not signed up to the Hague Convention on the Civil Aspects of Child Abduction my main concern is to ensure that our son is not abducted to Japan. I have tried to prevent this through the Prohibited Steps Order. If the worst were to happen and my former husband succeed in abducting our son I would find it difficult to get access to him regardless of any Japanese or UK visitation/custody rights as the Japanese police are reluctant to get involved in this kind of situation.

I hope that the above helps if anyone is in a similar situation to mine.


crnjapan (26 posts)
11/11/2005 21:29:05
re: Foreign mother with custody?   profile
Unless you plan to marry a Japanese again in the future, my advice would be to ignore the Japanese courts. Just because you married there, you are not required to get divorced there. If he wanted to be divorced, he could bring your documents into the local office and they would let him register it. The only reason he is contacting you is likely to make some kind of trouble. Many people I know report that Japanese spouses will take custody out of hate for the other parent, not love for the child. Beware.

You are divorced and have custody where it counts, at home. If the situation were reversed, Japan would take jurisdiction and declare the divorce legal in Japan (with you living overseas) because it involves a Japanese citizen. The only law you care about is that in the UK. CHeck with a lawyer there. Dont worry about Japan. There is no benefit at all. It will only cost money and be distracting.

If your ex comes to UK and grabs your child, you will lose in Japan whether they think you are divorced or not. Whether you have custody in Japan or not. If you go to Japan, same thing, you will lose.

Dont tell him where you live or let him contact you except thru your lawyer. Arrange supervised visitation in another city from where you live. Encourage him to ask his politicians to sign the Hague Convention.

Then just ignore Japanese law and relax until your son is old enough to resist abduction and make it home by himself if abducted.
crnjapan (26 posts)
11/11/2005 21:48:42
re: Foreign mother with custody?   profile
Hi Allison,

Whoops, I guess you figured out most of this by yourself. I didnt read ahead. I would like to ask if you would like to also post your story on www.crnjapan.com? It could serve as warning to Japanese that people outside of Japan are getting wise to the state of Family Law there. (I have some volunteers doing translations, and I would put your story at the top of the list if I had it.) Well, please contact me at webmaster99yn2e@crnjapan.com if you are interested. I think others could benefit from your experiences. Our abuse page gets a lot of hits actually, so you could help others in domestic violence situations also.

www.crnjapan.com/abuse/

Mark
Alison (5 posts)
16/11/2005 15:07:01
re: Foreign mother with custody?   profile
Hi Mark

Funnily enough only yesterday I received documents from the Japanese courts stating that they had made a judgement on the hearing back in May. It took them 6 months!!

And the good news is that they have granted the defendant gmeh parental authority on the grounds that had I had been caring for our son since May 2004 and they had no grounds to believe that he was not being well looked after by me. They also granted a divorce.

The not so good news is that I have been asked to pay the legal costs (although I have no idea how much this will be as I havenft actually received an invoice yet). As my ex has yet to pay for the legal costs in the UK I canft see myself paying any time soon for the Japanese ones.

Also on a side note the courts acknowledged receipt of my letter and regarded it as a statement on my side. So it seems to have been of some use after all.

All in all I am very happy with the outcome although I doubt I will be returning to Japan with my son until he is well into his teens. I have every intention of doing a family holiday to Japan when he is about 16. At which point I hope his Japanese family will be willing to take up contact with him and he will get to see part of his cultural heritage.

His Dad has still not contacted me despite birthdays and Christmas/New Year – which as always makes me incredibly sad but at the same time relived that the abduction risk is reduced.

I would be very happy to post on your website and will email you separately. However, I have posted here too in case my experience is of help to others.
crnjapan (26 posts)
16/11/2005 17:07:47
re: Foreign mother with custody?   profile
Wow, that is a very unusual outcome indeed. Im pleasantly surprised for you. Do you have any idea of whether he actually went thru with his request for custody?

Also, I assume you have both legal and physical custody? (Someone I know in court in Japan right now is researching the ins and outs of the two types of custody, and so with a little luck, there may be a web page on this soon. The current one is not very good...)

Well, in order to tie up as many loose ends as possible for you, I have one last suggestion. Your son, I assume has Japanese citizenship? Since you have custody, you should be able to get him removed from his father's Family Registration and put on his own. Technically, I think they should have done this already. But a non-Japanese getting custody is so unusual, and you are not even in Japan, so its something to check on.

The advantage of this would be in case your ex did ever succeed in abducting your son back to Japan, then this would be an obstacle to him. Technically, I think you would have more ability to "grab" your son back, since your ex-no longer has joint custody and there is no confusion since your son is not even listed on his Family Registration. I would do it if I were you as a precautionary measure.


FRIJ recommends you also visit crn japan, who are fighting international abduction to Japan and working to assure children in Japan of meaningful contact with both parents regardless of marital status