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Foreign Spouses in Japan Seek Change in Custody Law


By Suvendrini Kakuchi


Divorce has constantly been on the mind of Imelda (not her real name), a 36-year-old Filipino woman who married a Japanese man seven years ago.

But the soft spoken woman says that despite the nagging loneliness and physical abuse she sometimes has to endure from her husband, she will never leave the man she despises for fear of losing her two children.

''I asked my husband for a divorce after my first child was born. He said okay, and told me to leave that night taking only my clothes. I couldn't bear to part from my son who was then only 10 months old,'' she explained. So, she stayed on.

Imelda is but one of what social workers and lawyers say are a growing number of women and men, both foreign and Japanese, who are locked in miserable marriages because Japanese laws ignore the individual rights of parents to see their children after a divorce.

''Japanese divorce laws ignore the rights of children to have access to both parents,'' explained Mizuho Fukushima, who works with women and foreign labourers here.

This is why in many cases women who want to leave their Japanese husbands do not do so, and their predicament is complicated by the fact that they often face economic difficulties coping with child rearing.

Fukushima says the situation is particularly difficult for foreign women because they have the added problem of getting legal visas to stay on in the country after a divorce. Asian women are especially vulnerable as a result of lingering discrimination, activists here say. The problems experienced by foreign men and women with Japanese spouses with gaining access to children after separation or divorce, was highlighted at a recent press conference by the Japanese chapter of the Children's Rights Council, a Washington- based organisation. Saying the inability to maintain ties with their children was akin to child abduction, several foreign nationals spoke out against a system that they said denied their children the right to see them and the opportunity to develop closer ties with their biological parents.

Dale Martin, an Englishman, says he has not seen his six-year-old daughter for the last two years because his Japanese wife refuses to allow it. This, he adds, is despite his telephone calls and letters and a hard-won visitation agreement signed in family courts in December 1994.

''I have no news about her even while living a few hours away from her home. I call this a violation of my daughter's rights to have access to her father,'' he told the press. Margaret Leyman, an American journalist living in Tokyo, says her Japanese former husband prohibits her son from meeting with her.

''My son, who is 12 now, lives with my mother-in-law after the family court decided I was, as a working woman and foreigner, not a responsible mother,'' she explained. ''They have prohibited him from seeing me.'' In both cases the foreign spouses had signed divorce papers that had, without their knowledge, included the awarding of custody of their children to their estranged husbands or wives.

Japanese laws recognise divorce, granted on mutual consent, on a form signed by both parties. Both Leyhman and Martin assumed, in accordance with laws in many western countries, that custody is a separate issue from divorce and would be treated as such under the Japanese legal system.

''I was shocked to realise that I had signed away my right to see my child and also denied my son's right to have a mother as well as enjoy a different culture,'' recalled Leyman. In desperation, she tried to get at least visitation rights to her child.

Fukushima says problems arise because the concept of visitation rights or shared custody is not deeply ingrained in the Japanese system. ''There are no specific laws on visitation like most other countries and consultations between judges and children are not common, so it's difficult for the parent who does not have custody to gain access,'' she explained. ''This is because Japanese tradition views children not as individuals with their own rights but as belonging to the family,'' she added.

Chieko Nishioka, who runs a shelter for foreign women, says many of them flee failed marriages with their children because they do not want to lose them. ''After they come here I help them to find jobs and new homes, which are important considerations for gaining custody of their children. The whole experience is very painful for these distraught women,'' she explained. Fukushima says in many cases, Asian women estranged from their Japanese husbands are at the losing end of custody battles. This is because the often children do not speak the mother's language, and it is easy for judges to decide that the children are better off living with the Japanese father who has the means to support them, who can remarry or have support from his parents.

But activists and those who feel aggrieved by the current Japanese law point out that there must be some changes in the law as marriages with foreign nationals and divorce rates rise.

Information on Japanese Family Law:
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unofficial translation of Book IV; Relatives  continue

Kyogi Rikon (Consent Divorce)  continue

Has anything changed in the fight against international child abduction?  continue

Japan's private international law  continue

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An American Dad is behind bars and his Japanese ex-wife is a fugitive from justice  continue

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On April 14, 2014, the Japanese Law implementing the Hague Abduction Convention  continue

A tentative translation of the Rules of the Supreme Court of Japan concerning Personal Status Litigation has been published by Japan’s Ministry of Justice  continue

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Four fathers quietly filed into a theater to watch  continue

After several years of struggling to understand the workings of the Japanese family law system on behalf of Japanese clients or non-Japanese clients with Japanese spouses, I have reluctantly concluded  continue

1996 judgment of the Supreme Court of Japan  continue

The Supreme Court of New Jersey has upheld a decision allowing a Japanese mother to relocate with her six-year old child   continue

In Japan since 2003 there have been two ways to calculate child support. The first way  continue

Japanese law enforcement and social service agencies unfortunately seem unable to enforce custody and support orders   continue

Under the Japanese Civil Code, either the husband or wife must change their family name to be married legally. Usually it is the wife who does so.  continue

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