Open Letter on Family Law Reform
(Please sign our open letter and online petition)

January 21st, 2010
Prime Minister Hatoyama,
      Officially recognizing a tradition begun 1400 years earlier during the reign of Empress Suiko, the Japanese government decreed May 5th a national holiday celebrating children in 1948. With the proclamation of the Children’s Charter on May 5th, 1951 Japan defined “proper attitudes” towards all children, guaranteed their rights as set forth in the Japanese Constitution and established standards to ensure their well-being. Reaffirming its commitment to children’s rights on an international stage, Japan ratified the United Nation’s Convention on the Rights of the Child on April 22, 1994.
      With respect to children, Japan continues to distinguish itself from other G7 nations in three ways. First and most admirably, Japan is the only G8 member that celebrates Children’s Day as a public holiday. Second and quite hypocritically in light of continued public pleas for international assistance to secure the return of Japanese children abducted to North Korea, Japan is the only G7 member that has yet to sign the Hague Convention on the Civil Aspect of International Child Abduction. Third and most shockingly, Japan has neither revised its family laws to accurately reflect advances in the understanding of child development/ welfare needs, current socio-economic trends or internationally agreed-upon standards nor consistently enforced existing laws and agreements.
      Repeatedly misconstrued as a conscious effort to protect Japanese women overseas by previous administrations, Japan’s failure to sign the Hague Convention more likely represents deeply-ingrained bureaucratic resistance to family aw reform. The recent establishment of the Foreign Ministry’s Division for Issues Related to Child Custody offers limited hope. Regrettably, officials from your own administration immediately dampened this hope by warning of a lengthy process requiring fundamental changes to Japan’s Civil Code with little indication these changes are being seriously considered. As evidenced by the expedited approval of Viagra, Japan’s government and bureaucracies can be remarkably agile when properly motivated. Our children, Japanese and foreign alike, deserve the same sense of urgency when protecting their rights as when encouraging their conception.
      Increasingly difficult economic conditions and rising divorce rates underscore the need for substantive changes to Japanese family law, particularly in relation to custody, visitation and child support. Despite overwhelming evidence that both parents play crucial roles in a child’s development and a generational shift towards greater sharing of parental responsibilities, the “company first, father-as-wallet” philosophy of Japan’s post-war economic miracle remains pervasive throughout the family courts. Mothers are awarded sole custody 90% of the time. Fathers, denied all parental rights by law and access to their children in practice, are nevertheless expected to provide financial support. Reinforcing the out-dated concept that a father’s only role is monetary, the family courts routinely undermine numerous other agencies’ efforts to encourage greater paternal involvement in children’s lives regardless of marital status. After divorce, this virtually guaranteed, court sanctioned alienation provides little incentive for fathers to honor their financial obligation especially since single mothers are eligible for substantial government subsidies. Not surprisingly, less than 20% of divorced fathers in Japan pay adequate child support placing an ever greater burden on an already over-taxed welfare system. Denying children the love and affection of one of their parents and placing them in financial peril does not guarantee their happiness or well-being. It endangers it.
      More so than the out-dated laws, dysfunctional family courts are the single largest obstacle to meaningful reform in Japan. Based on an idyllic belief in personal responsibility and altruistic intentions, family courts naively assume everyone is willing and able to act reasonably, rationally and in the best interest of the children. Were this the case, the world would be a beautiful place and courts would unnecessary. Realistically speaking, however, Japan’s family courts lack the competence, authority and oversight required to protect children’s rights and welfare due to this excessively libertarian approach.
      Mediation, a valuable tool in family court systems worldwide, is conducted by citizens of “impeccable character and deep insight who have broad knowledge and experience”, i.e. retired volunteers. The system and children would be far better served with mediators of impeccable character with relevant insight, specific knowledge and professional experience (eg. relationship/ child psychology, child developmental needs, and dispute resolution, respectively). Similarly, court investigators have little or no practical experience or training beyond university coursework, assuming they pursued pertinent fields of study at all (eg. social work, child welfare, etc.). Professionals are seldom, if ever, consulted. Vaguely defined laws and little guidance in relation to specific cases force judges to apply the “best interest” standard with good intentions rather than informed opinions by competent professionals.
      Entrusted with awesome responsibility protecting children’s rights and welfare, Japan’s family courts inexplicably have no real authority to enforce participation in the process or compliance with the findings. Presumably to prevent complete abandonment of the process and entirely counterproductive to ascertaining the true situation, the powerless courts seldom require concrete evidence or documentation to substantiate accusations or verify claims. Unable to compel attendance, psychiatric evaluations to determine parental fitness and/ or professional counseling to possibly prevent the divorce itself or at least minimize its psychological impact on the children is rarely suggested and never required. Absent any substantial consequences, uncooperative and/or irresponsible participants have absolutely no incentive to change their attitude or actions. Faced with the degrading and almost certain prospect of having their orders ignored with impunity, judges exploit the vagueness of the “best interest” standard to overwhelmingly rule in favor of the status quo. Consequently, mothers deny visitation rights, fathers fail to pay child support and children suffer. While the path of least resistance may spare the adults involved discomfort or shame, it does so at the expense of the children.
      Under the guise of individual privacy needs, family courts maintain almost complete secrecy from participants as well as public watchdogs. Taken at face value and typically heard individually, testimony and accusations are routinely withheld from the opposing party. Courts conveniently avoid the need for thorough investigations by precluding the possibility of rebuttal. Proceedings are poorly documented with summaries, not verbatim transcripts. Judges, mediators and court officials can not be held accountable for their comments or attitudes due to the lack of corroborating records. Incredibly, investigations of judicial misconduct/ incompetence require permission, via approved access to court records, from the source least likely to grant it- the target of the investigation. Not surprisingly, access to information is the one area where the court consistently exercises absolute authority. Effectively freed from all scrutiny and oversight, family courts are able to decree any decision as meeting the “best interest” standard, regardless of actual facts or the long-term impact on the children.
      I offer these criticisms not as a disgruntled foreigner, but as a concerned father whose children, like thousands of Japanese children, has been failed by a dysfunctional system. As neither my wife nor I are Japanese citizens, our case should be determined solely on its merits and unbiased by real or perceived national favoritism. Furthermore, the Japanese Civil Code dictates the judge applies the laws of our children’s nationality without violating Japanese law. Ironically, the inability to reconcile the markedly different laws of Japan and other member states is a common justification for not acting on the Hague Convention, yet Japanese law already requires that exact reconciliation in significantly more “domestic” cases than potential Hague cases. Not only would reform to reflect international standards remove an obstacle to Hague participation, it would simplify the caseload of judges who must now contend with laws of 2 or 3 countries.
      To better illustrate the desperate need for court reform to benefit all residents of Japan, I offer the following examples from my own experience with the family courts:
      By her own admission, my Brasilian wife stopped caring for our severely-disabled, 21-month-old son while pregnant with our daughter and moved in with her parents. In June, 2008, she filed (and later withdrew) divorce documents stating I would have custody of both children with the Okazaki Family Court. After giving birth in September, 2008, she refused all direct contact with my daughter and completely abandoned our son. Attempting to permanently deny our daughter’s rights as guaranteed by the laws of her own country, my wife, a former consulate employee, knowingly filed a false Brasilian birth certificate- a crime punishable by imprisonment and automatic loss of custody. I filed for court intervention at the Okazaki Family Court on October 10, 2008. My wife secretly fled to Yamaguchi Prefecture with my daughter in mid-November, 2008.
      Fully aware of our son’s medical condition, my inability to work while single-handedly providing his 24/7 care, my wife’s promise to give me custody of both children, questionable mental state, illegal acts, and intention to flee, Judge Noda (Okazaki) ruled to change jurisdiction to Yamaguchi on December 2, 2008. Citing a law that states jurisdiction can be moved with sufficient reason, Judge Noda provided no explanation at all. Nevertheless, his decision delayed the case 4 months and forced a severely disabled child to travel with his medical equipment to another prefecture for court proceedings involving the mother who abandoned him.
      Judge Oshima (Iwakuni) specifically instructed everyone to focus on a realistic solution rather than actual laws during mediation sessions on March 31 and April 21, 2009. A retired salaryman and older housewife with little international experience and no knowledge of disability issues or US/ Brasilian customs and laws were assigned to our case. Whereas conventional wisdom recognizes maternal abandonment of a child indicates underlying mental instability and places other siblings at significant risk, these mediators determined that although my wife abandoned our son, broke numerous Brasilian laws (child abandonment is not a crime in Japan) and showed no indication of future cooperation, she seemed to be doing fine with our daughter and therefore, no immediate action was required. Failing to require a psychiatric evaluation or counseling, establish a temporary visitation schedule or even expedite the hearing, Judge Oshima obviously concurred.
      At the first and only hearing date on July 7th, 2009 Judge Oshima clearly stated on tape that he felt my wife’s total lack of concern for our son’s welfare was “not normal” for a mother. He has still not required any psychiatric intervention or removed my daughter from the care of a “not normal” mother. There are no references to any of his comments or questions on the official “transcript” of the session. When asked to provide a copy of the actual tape, the court informed me it had been erased and would not be made available regardless. Unbelievably, the court destroyed records before even issuing its ruling.
      Obligated under Japanese law to apply Brasilian/ US law, the court, to the best of my knowledge, has not consulted legal scholars well-versed in those laws and only reluctantly accepted the unsolicited information I provided. Judge Oshima has in his possession indisputable evidence of multiple crimes (false documents signed under oath by my wife; abandonment of a disabled person/ child), copies of the relevant Brasilian penal codes outlining mandatory imprisonment and subsequent loss of custodial rights, a legal opinion by a Brasilian law professor supporting my position, and confirmation of prosecution in Brasil. In undocumented phone conversations, court officials (Tsutsumi and Nukumizu) told me conviction in Brasil would not affect my wife’s ability to raise our daughter in Japan. Judge Oshima seemingly avoids the topic entirely.
      Prompted by my complaints about the continued lack of access to my daughter and with the stated expectation of an appeal, Judge Oshima finally scheduled a mediation session on October 27, 2009 to discuss a temporary visitation schedule until the case was finally resolved. Cognizant of my inability to work in Japan while providing 24/7 medical care for my son, Judge Oshima nevertheless proposed I alternate monthly between taking our disabled son to Yamaguchi Prefecture and paying for all my wife and daughter’s travel expenses to Okazaki. Judge Oshima based his proposal on my wife’s extremely limited finances and unwillingness to travel to Okazaki for free once a month to see her own son. Ironically, the same factors are equally legitimate reasons to award custody of both children to me without further delay. Judge Oshima assured us his decision would be issued in December, 2009. As of January 21, 2010, he has still not ruled.
      The judges’ actions, or lack thereof, can be described in many ways. “In the best interest of my children” is certainly not one of them. Many people may say our case is atypical. I agree. If anything, the extenuating circumstances should warrant a higher priority and quick resolution, not empty promises and endless delays. Given the callous disregard for my children’s welfare not to mention the prevailing laws in my case, the courts can hardly be trusted to act any differently in less compelling cases involving Japanese citizens.
      As a child, Tokugawa Ieyasu was willingly offered as a hostage to secure an alliance. At that time, public disgrace awaited any father who failed to honor his familial obligations and insure the safe return of his child. Today, Japan’s policies and family courts have institutionalized forced abandonment, neglect and abdication of parental responsibility. Without immediate and substantial reforms, Japan’s desirability as a place to raise children will be increasingly questioned by Japanese and foreign nationals alike- a consequence Japan’s rapidly aging society can ill afford.
      Japan should not reform its family courts and laws or sign the Hague Convention due to international pressure. Japan should do these things to realign itself with its core principles and values, honor its promises, and ensure its continued vitality. Most importantly, Japan should do these things for the children.
Sincerely,
Craig Emerson Morrey,
Concerned Father and Global Citizen