The Supreme Court of New Jersey has unanimously upheld a decision allowing a Japanese mother to relocate with her six-year old child from their home in New Jersey to Okinawa, Japan over the strong objections of the American husband. The primary concern of the husband was that the provisions for his visitation with his daughter were unenforceable in Japan. MacKinnon v. MacKinnon,Supreme Court of New Jersey, June 11, 2007.
The ruling should be understood strictly in the context of its specific facts and as being based on the limited evidence with which the courts were presented. The decision does not stand for the (false and extremely dangerous) proposition that Japan recognizes or respects foreign custody orders or rights of visitation.
In particular, it is important to note that the courts below were not presented with any expert evidence concerning Japan's failure to enforce foreign or domestic custody and visitation orders, or as to its failure to recognize foreign custody orders or even any right of parental visitation.
The father relied primarily on the fact that Japan was not a party to the Hague Convention on the Civil Aspects of International Child Abduction. The Court upheld the ruling of the courts below that simply because a country has not signed the Convention should not automatically bar relocation to that country. The father also submitted a U.S. State Department note to the effect that “foreign parents seeking enforcement of visitation rights are disadvantaged in Japanese courts,” but failed to submit any other evidence concerning Japanese family law.
Instead, the Court placed great reliance – and took great comfort – in the fact that the mother had previously taken the child to Japan for visitation on several occasions, had always returned the child as promised, had genuinely acknowledged to the satisfaction of the trial court that the father loved the child and that she was anxious to maintain the father's relationship with the child, and had a history of having scrupulously obeyed all court orders in the past.
Thus, the case must be seen as being limited strictly to its specific facts. The Court relied on the evidence of the mother's good faith rather than upon any determination concerning the Japanese family law system. It is a fact that Japan does not return abducted children and does not enforce foreign rights of visitation. See Jeremy D. Morley, Japanese Family Law - or The Lack Thereof!, http://www.international-divorce.com/d-japan.htm.
In almost every situation, if a Japanese parent chooses to retain a child in Japan against the wishes of a foreign parent and in violation of an American or Japanese court order, he or she will get away with it. Id. If Mrs. MacKinnon were to choose to ignore those provisions in the New Jersey trial court's order that require her to allow the father to have extensive visitation with their child, the father will be powerless to compel her to do so as long as she stays in Japan. However, such facts were not before the Court.
While the Court in MacKinnon suggested that future international relocation applications should be conditioned on securing mirror orders in the foreign country, or enforceable contracts, this would not work in the case of Japan, which has no concept of a mirror order and which in any event would never enforce its own order or a contract between parents in such a case. Id.
What this case stands for is the proposition, amply emphasized by the New Jersey Supreme Court, that each case must be viewed individually, on its own particular facts, so as to “permit our courts to flexibly and properly address the myriad, nuanced issues created by family ties that cross international boundaries.” Thus, the Court stressed that in the international removal context, “we afford our trial courts the means to adapt to the variety of unique circumstances presented in family law proceedings.” Every case must be determined on its own facts.