Overseas custody rights: American parents struggle to reunite with children in Japan By Charlie Reed, Stars and Stripes Pacific edition, Tuesday, August 4, 2009
It's been six years, three weeks and one day since Navy Cmdr. Paul Toland last saw his only child, Erika — one of 118 Japanese-American children living in Japan and cut off from their American parents. “I count every day,” Toland said. “You can't lose track.”
Toland's emotional tally began July 13, 2003, when he returned from work to discover his wife had surreptitiously moved out of their home in a Navy housing complex in Yokohama, Japan, taking Erika — just 9 months old at the time — with her.
Toland's estranged wife, a native of Japan who became a U.S. citizen during their marriage, moved to Tokyo and barred him from visiting his daughter. Her actions likely would have resulted in felony kidnapping charges in the United States but were essentially protected by Japanese criminal and family laws, which do not recognize parental child abduction as a crime and do not acknowledge foreign custody orders.
But while Japanese nationals cannot be arrested for abducting their own children in Japan, foreigners in Japan would likely face criminal penalties if they attempted to take their children back, according to Jeremy Morely, a New York City-based attorney who has worked on parental child abduction cases in Japan for more than a decade.
Toland, a medical administration officer now based in Bethesda, Md., is at the forefront of a growing international debate over parental child abduction in Japan. Even after his wife died in 2007, he has been unable to gain custody of or even see Erika, who now lives with her maternal grandmother.
At the heart of the issue is Japan's refusal to accede to the Hague Convention on the Civil Aspects of International Child Abduction of 1980. The treaty, which includes 81 countries as signatories, prevents parents from fleeing with their children to or within those countries before a court can determine custody. It protects rights of access for both parents and includes measures to safeguard victims of spousal and child abuse.
In May, the United States, the United Kingdom, France and Canada held a symposium in Tokyo and released a joint statement urging Japan to sign the Hague convention — the first such public declaration after decades of lobbying Japanese government officials behind the scenes.
But after nearly 30 years of multilateral diplomacy, Rep. Chris Smith, R-N.J., thinks a hard-line approach is now in order. In July, Smith introduced the International Child Abduction Prevention Act of 2009, which would allow for economic sanctions against countries that refuse to take action in international child abduction cases. “Japan is one of the most egregious abusers in this regard, and that's unacceptable,” Smith said. “If we continue to allow this to happen, we will get much more of it because there will be impunity.”
U.S. State Department reports show the number of open cases of parental abductions in Japan involving American children has doubled since last year, rising from 40 cases involving 50 children to 80 cases affecting 118 children. Most cases involve Japanese mothers and non-Japanese fathers whose breakup results in the mother keeping her children away from their father in Japan.
State Department officials agree the problem is getting worse as international marriages and divorces continue to rise and more parents report their cases to the department, but they contend Japan is moving toward taking action. “They are beginning to recognize that this is an issue that sets Japan apart from [its closest allies],” said Michelle Bond, deputy assistant secretary for overseas citizens services at the State Department. Japan is the only major industrialized nation not to have signed the treaty and is behind only Mexico and India in the number of parental child abduction cases involving American children, Bond said.
Japan's reluctance to sign the Hague treaty stems from its tradition of sole-custody divorces, Bond said, wherein one parent makes a complete and lifelong break from his or her children when a couple splits. The parent who has physical custody at the time of divorce tends to keep the children, and police will not intervene in custody cases, Bond said.
In an interview with Stars and Stripes last month, Japanese Foreign Ministry spokesman Yasumasa Kawamura said: “Japan fully recognizes that the Hague Convention is one of the most effective tools to protect children's rights and well-being.” But a gap exists between “what the treaty requires and Japan's social expectations based on Japan's family relationship and legal system,” he said.
The current system isn't working for Rick Gates, a civilian Department of Defense employee at Naha Port on Okinawa and a former Marine who first came to Japan on assignment in 1994. Gates, 38, has not been allowed to visit his two children, both American citizens, in almost a year despite having a Japanese custody order for his oldest daughter, Monami, 8.
Soon after his divorce in early 2008, Gates said, he and his Japanese wife decided to reconcile. Though he got custody of Monami during the proceedings, he allowed her to stay with his ex-wife and his son, Kaito, 6. “I didn't want to split the children up,” he said. “I had every belief that we were going to restore our marriage, so I didn't push the issue of getting my daughter turned over to me.” But within a few months, Gates said, his ex-wife changed her mind about reconciling and eventually stopped him from visiting his children or even speaking to them on the phone.
Like Toland, Gates has worked with the State Department to have a third-party mediator from the embassy check on the status of his children in what is referred to as a “welfare and whereabouts visit.” Both Toland and Gates hope political pressure from Capitol Hill will finally help turn the tide in Japan.
But Morely, the New York City attorney, said congressional efforts could backfire.
“American pressure can very well be counterproductive,” Morely said. “If Japan sees the world community upset with them, that will be better than the perception that the American government is trying to bully them.”
He argues that continued diplomacy is key to not only persuade Japan to sign the Hague treaty but also to change its family legal system, which is crucial if the treaty is to function properly.
“As soon as they sign it, they'll be in violation of it,” he said. “That's why they haven't signed it; they're not set up for it.”
In many cases, “taking” parents can be arrested if they leave Japan and they often live in fear that their children will be kidnapped back from them, Morely said.
“Not signing is hurting a lot of Japanese mothers, and that fact is not yet understood in Japan,” he said. “It's detrimental. It forces the Japanese mother never to leave the country.”
The National Center for Missing and Exploited Children knows of no successful return of a child from Japan to the United States as a result of civil ligation or criminal proceedings, said Maura Harty, senior policy director for the International Centre for Missing and Exploited Children. The two groups are sister organizations. “We hope the government of Japan will hear the collective arguments and cases being made by the international community … and modify its domestic law,” as well as become a signatory to the Hague treaty, Harty said.
Meanwhile, like scores of other parents whose children have been spirited away in Japan, Toland is essentially powerless. Still, he said, he has spent hundreds of hours in Japanese and U.S. courts and nearly $200,000 in legal fees and other expenses. “I'm not giving up on this,” said Toland, 42, who is now engaged and helping raise his fiancee's teenage son. “I'd never give up on this. I'd never give up on my own daughter.”