International Parental Child Abduction Japan
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APRIL 2012
GENERAL INFORMATION
Abductions to Japan represent one of the largest portfolios in the State Department, Bureau of Consular Affairs, Office of Children’s Issues and are among the most difficult to resolve. Japan has not ratified the 1980 Hague Convention on the Civil Aspects of International Child Abduction (Convention) and does not consider international parental child abduction to be a crime. Japan signaled its intent to ratify the Convention during 2012.
Japanese law and custom favor one parent having sole custody, making it extremely difficult for foreign left-behind parents to obtain the return of or access to abducted children. For more information on Japanese laws related to children after divorce, see: Post-Divorce Laws Governing Parent and Child in Japan, by Takao Tanase, September 14, 2010. (This research paper, funded by the U.S. Department of State, details views and opinions of the author and do not necessarily reflect the official position or policies of the U.S. Department of State.)
Returns from Japan have occurred primarily through voluntary measures or agreements between the parents. Success for left-behind parents in the Japanese courts is rare and difficult to enforce.
LEGAL SYSTEM
A general description of Japan’s legal system is available at the Japanese Federation of Bar Associations website. According to the Japan Federation of Bar Associations (JFBA) website, joint custody is not customary under Japanese law. The JFBA website provides a description of how the Japanese Family Court system conducts closed proceedings.
Children typically reside with their mother after a divorce. U.S. citizens involved in international custody disputes in Japan report to the U.S. Embassy in Tokyo that Japanese mothers are more likely to win sole custody. They also state that closed Family Court proceedings impede due process because of the inability for both parties to access information about the proceedings. They additionally report that Japan lacks a mechanism to uniformly enforce court orders, whether issued by a Japanese or foreign court.
Today, there is a movement in Japan advocating that it is in the best interest of the child to maintain contact with both parents after a divorce. Read about the Japan Federation of Bar Associations 2010 Symposium on Children’s Happiness After Divorce here.
For left-behind parents trying to locate a child in Japan, a child’s Appendix to the Family Register includes the current address of everyone listed. A parent or a designated proxy may request an appendix of the child’s Japanese Family Register (koseki no fuhyou kakunin) from the local municipal office where the child is domiciled if the parent’s name was ever listed on the Family Register (koseki tohon). The Ministry of Foreign Affairs in Japan informed Embassy Tokyo, however, that a Family Register will not be released if a claim of domestic violence was made by the taking parent to police or the municipal office. Administrative steps to acquire an appendix may be numerous. Left-behind parents should consider retaining an attorney in the prefecture where the taking parent resides or resided and possibly in the prefecture where the children’s Japanese grandparents reside. For more information on Family Registers, please visit the relevant local municipal government’s website.
RETAINING AN ATTORNEY
In order to bring a custody issue before the Family Court, a left-behind parent may want to consult with a Japanese attorney, especially if the parent is not fluent in written and spoken Japanese and is unfamiliar with the Japanese legal system. The U.S. Embassy in Tokyo maintains a list of attorneys, including those who specialize in family law.
This list is provided as a courtesy service only and does not constitute an endorsement of any individual attorney. The State Department assumes no responsibility or liability for the professional ability or reputation of, or the quality of services provided by, any persons or firms. Professional credentials and areas of expertise are provided directly by the lawyers and should be vetted prior to retaining the attorney.
Japan offers free or reduced fee legal aid services for divorce and custody matters to persons in legal visa/immigration status in Japan whose income is below specified levels. Interested parties should contact Houterasu (The Japan Legal Support Center) which is a nationwide legal support center which helps callers locate professional support in civil and criminal matters. Call Center: 0570-078374.
CITIZENSHIP & PASSPORT MATTERS
According to Article 3 of the Nationality Act, a child acquires Japanese citizenship if either parent is a Japanese national at the time of birth. A child of an unmarried Japanese father or mother and non-Japanese father or mother may acquire Japanese citizenship if the child’s legal representative notifies the Ministry of Justice and the Japanese parent recognizes the child. Under Article 14 of the Nationality Act, Japan permits dual nationality for children up to the age of 22; however, after the age of 22, the individual must choose one and renounce the other.
Japanese law requires the consent of both parents before issuing a child a passport; however, the consent of the non-applying parent is presumed when only one parent applies. The consular officer in a Japanese Embassy or consulate should ask the applying parent to affirm that the non-applying parent consents to Japanese passport issuance. If a parent objects to the issuance of a Japanese passport to a minor, he/she should notify a passport office in Japan, or a Japanese Embassy or consulate in writing and include documentation that shows that the objecting parent has legal custody of the child. Japanese Ministry of Foreign Affairs policy states that Japanese authorities should contact the objecting parent and request a letter of consent from the objecting parent prior to issuing the child a passport. Instructions are on the Japanese Ministry of Foreign Affairs website.
The State Department cannot confirm the reliability of Japan’s reported procedures for preventing the unlawful removal of a child to Japan given reports of inconsistent application of MOFA’s policy.
Japan does not allow a child to be included on a parent’s passport.
EXIT PERMITS
Upon departure from Japan, immigration officers will examine passports and provide an exit stamp. A traveler may be denied departure if he/she overstayed or has an outstanding warrant issued by Japanese police or an Interpol notice.
There is no “exit hold” by which a non-traveling parent can request that Japanese Immigration prevent a child (and accompanying adult) from departing Japan. If the left-behind parent contacts Japanese police, however, it is possible that the police may contact Japanese immigration, which would then handle the matter on a case-by-case basis. Similarly, there is no “entry hold” by which a parent can request that Japanese Immigration prevent a child from entering Japan.
The consent of the non-traveling parent is not required for a child to depart Japan. However, if required by the destination country, airlines in Japan may require a letter of consent from the non-traveling parent, or proof that the traveling adult has legal custody or guardianship.
MEDIATION
Family Court mediation is required in many custody disputes; however, the U.S. State Department observes that few outcomes are favorable to left-behind parents. Mediated agreements are difficult to enforce. For more information, please contact an attorney in Japan.
HAGUE ABDUCTION CONVENTION
Japan is not a party to the Hague Abduction Convention.
The Government of Japan announced on May 20, 2011, that it will ratify the Hague Abduction Convention, and Ministry of Foreign Affairs (MOFA) officials told officers in the U.S. Embassy Tokyo that the Convention and the domestic implementing legislation will be concurrently presented in the 2012 Diet session. MOFA and the Ministry of Justice (MOJ) drafted the domestic law changes. During MOFA’s public comment period on the draft implementing legislation, the U.S. and a multilateral group of Convention parties commented that implementing legislation should closely reflect the language provided in the Convention. Once passed, the State Department will determine if the legislation is consistent with the Convention.
CIVIL REMEDIES
U.S. parents’ and local attorneys report that Japanese courts generally do not recognize U.S. court orders. A parent holding a custody decree issued in U.S. courts should retain local Japanese counsel for advice to determine whether to apply to the Japanese district courts (not family courts) for recognition of the U.S. court order. Even if the U.S. court order is recognized by the district court and a judge agrees that the child should be returned to the United States, attorneys have informed the embassy that there are no clear, reliable enforcement mechanisms to ensure compliance with the order.
Japan’s Ministry of Foreign Affairs informed U.S. government representatives about some of the many obstacles involved in gaining recognition of a U.S. custody order in Japanese courts. In order to recognize a foreign court order, the Japanese court must find that it is a final and binding judgment under conditions in which both sides had procedural protections of their legal rights. The Japanese family law system draws an important distinction between custody orders that merely determine or transfer custody (keisei hanketsu or a ‘formative judgment’) and a decision that explicitly orders one party to surrender a child to another (kyufu hanketsu or ‘judgment ordering performance’). It is only this second type of order (kyufu hanketsu) that the Japanese courts will recognize as a full and binding judgment. At this time, the State Department knows of very few instances in which a U.S. custody order significantly influenced the outcome of custody proceedings in Japan.
The Japanese Family Court hears custody disputes and normally resolves the issue based on the best interests of the child. However, there are no statutory factors to guide courts charged with determining the child’s best interests. Also, there are limited mechanisms to enforce Family Court orders. While a parent can request the court to recommend fining the non-compliant parent, there is no evidence that these fines are effective. Compliance is essentially voluntary and dependent upon the agreement of both parents. Embassy experience is that Japanese police are reluctant to get involved in custody disputes or to enforce custody decrees issued by Japanese courts.
Family Court orders can be appealed to a high court. High court orders may be appealed to the Supreme Court in limited circumstances. For more information, see the Supreme Court of Japan’s website.
Relevant statutes include the Personal Affairs Litigation Code (Jinji soshoho), the Law for Adjudgement of Domestic Relations, and Japan’s Civil Code, Book 4, Art. 766.
CRIMINAL REMEDIES
International parental child abduction is not a crime in Japan. Because the extradition treaty between Japan and the United States requires “dual criminality;” that the crime for which a Japanese national is charged in the United States is also a crime in Japan, a Japanese taking-parent has never been extradited from Japan to face criminal charges for international parental child abduction in the United States.
Interpol notices that inform immigration authorities about an international parental child abduction case from the United States may be useful to help locate a child when a Japanese taking-parent transits a third country with whom the U.S. has an extradition treaty relationship. Please read Japan’s Ministry of Foreign Affairs notice to Japanese parents considering international travel for more information.
Although international parental child abduction is not a crime in Japan, using force to take children is, and both Japanese citizens and foreigners have been arrested for using force when allegedly kidnapping their children. Also, foreigners have been arrested for attempting to flee Japan with their children. The embassy is not aware of any Japanese parent being charged with child abduction for bringing his/her child to Japan from another country, notwithstanding charges of child abduction filed in the other country. An English Translation of Japan’s Penal Code is available here.
The embassy’s experience has shown that the police will not assist with the search for a child abducted by a parent (domestically or internationally) because of the widely-accepted cultural view that custody should be handled within families and there is no cause for concern if the child is with one of the parents. Japan’s strict privacy laws prevent police and other officials from releasing information about the location of an abducted child.
VISITATION/ACCESS
As of April 1, 2012, changes to Japanese Civil Code Article 766 came into force. Previously, Civil Code Article 766 did not address visitation and only required a divorcing couple with a child to specify the custody arrangement in the divorce documentation. Now, Civil Code Article 766 requires a divorcing couple with a child to specify, in addition to custody, visitation arrangements between the child and the father and mother as well as the arrangements for childcare expenses. It remains unknown how such agreements regarding visitation will work in practice.
EMBASSY/CONSULATE CONTACT INFORMATION
EXTERNAL LINKS
Embassy of Japan in the United States
Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction:
National Center for Missing or Exploited Children
Other Government Websites |
