The Legal Reality

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Some thoughts from Walter Benda of the CRCJapan website. The administrator of FRIJ found his comments on the current realities of pursuing visitation rights (and custody) through legal channels in Japan very informative:-

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These are some of the highly subjective conclusions I've made
about Japanese lawyers and the Japanese legal system:

1.) If at all possible, don't let yourself get drawn into the
Japanese legal system. Except for one highly unusual case
(involving a foreign mother with a high-paying prestigious
Japanese university position married to a long-haired, bearded
Japanese man with no stable income), I don't know of a single
case where a foreign spouse has been able to have physical
and legal custody of their children granted to them, and I don't
know of a single case where a foreign spouse has been able to
get the courts to enforce regular direct contact with their children
when the Japanese spouse is not cooperative. I'm making this
observation on the basis of probably more than 100 cases I've
come across during the past 8 years.

In my opinion, a foreigner would only stand a decent chance if he
or she had very high income and stable social position, and the
Japanese spouse did not, and the Japanese spouse had some
pecular or inappropriate attributes that would cause even a
Japanese judge to raise his or her eyebrows. In such a case,
the foreign spouse should hire the highest pretige Japanese
law firm possible to represent them, which could use its political
connections or whatever to influence the judge.

2.) If at all possible, pre-empt the Japanese courts, and use
your own country's laws and get jurisdiction established in your
own country before the Japanese courts have a chance to serve
you. If you can do this, even if the Japanese courts proceed, any
decisions they make are theoretically invalid and will not be
internationally recognized and could be eventually overturned in
Japan if you decide to do so.

3.) Yes, sometimes it is possible to find a kind Japanese lawyer
who will handle your case for a low sum like yen 100,000. They
genuinely want to help and promote good will between
Japanese and foreigners, etc., but ultimately, just like the higher
priced lawyers, they are unable to get you custody or even
enforceable visitation. Higher priced lawyers sometimes offer
extra services, such as finding your kids, if they're missing, but
again I don't know of any with a success record in getting
custody for foreigners or even providing meaningful contact with
their children. And while there may be a yen 800,000 limit on
what Japanese lawyers can charge for a divorce case, I can
assure you that in reality the bills can be much higher. They will
file the papers and handle the case for you at the district court
level, but once you lose, they will either resign or ask for
additional fees to appeal the decisions. There may also be extra
charges for additional research or related projects you may ask
them to do. I know one father who spent over $150,000 on
Japanese lawyers and all it bought him was two brief meetings
with his daughter in a family court setting, with the ex-wife nearby
doing everything in her power to make the meetings fail.

4.) Unlike lawyers in other countries, I've found Japanese
lawyers are quick to resign and drop a case, something that
would be considered highly unethical in many other countries,
but apparently is not so in Japan. Two of the three lawyers I've
worked with in Japan have resigned, one of them at an extremely
critical point in my case. In that case the judge refused to grant
my request for a postponement of the hearing and I had to act as
my own attorney with very little time to prepare myself.

5.) If you do have to use the Japanese legal system, you might
want to consider what I have done. I used attorneys in the early
stages, all of whom told me beforehand they had virtually no
chance of getting me custody or enforceable visitation. As I got
more comfortable with the system, and after having the
experience of two attorneys suddenly resigning on me, I
eventually decided to represent myself, and through the
Japanese appeals process was able to stall the divorce for a
total of about 4 years. During that time I finally was able to locate
my children and at least meet them one time on a street in
Japan.

6.) Almost all Japanese lawyers seem to want to resolve the
case quickly by having you agree to the divorce. My advise is
don't do it. You still have 50% legal custody as long as you
remain married and/or the divorce proceedings are still in
process. Once you are divorced and lose custody, the law treats
you as a complete stranger as far as your children are
concerned, and it is my impression it becomes infinitely easier
for the ex-spouse to obtain restraining orders and gag orders
and so on against you.

7.) One positive thing I do have to say about the Japanese legal
system is that it seems a little less complicated and a little less
intimidating than the legal system here in the U.S., in terms of
representing yourself. Also I found the court clerks very helpful
and willing to provide me with the forms and information I
needed to submit appeals, etc. However, it really helps if you
have a native Japanese speaker to help with the phone calls and
inquiries.

The above points are based on my own experiences, and they
may not apply to your case, as every case is different. Anyway,
these are just some things to think about.

Walter


Edited 21/09/2003 19:42:38
Posted By:
Administrator
21/09/2003
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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