Thursday, 19 Sep 1996
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Section: Life & Style, Page: E-1
LOST IN A LOOPHOLE: Foreigners Who Are on the Losing End of a
Custody Battle in Japan Don’t Have Much Recourse
By: EVELYN IRITANI
TIMES STAFF WRITER
TOKYO – When Walter Benda left for work at a Japanese trading
company that July morning in 1995, his wife, Yoko, and two
daughters accompanied him to the front door and bid him farewell.
Unusual, perhaps, but nice. Not the kind of thing a father would
object to.
Only when Benda returned that evening and noticed the empty space
at the entrance to the apartment, where his family’s shoes should
have been, did he start to wonder. A piece of paper on the dining
room table confirmed his worst suspicions.
“Dear Walter, please forgive me for leaving you this way,” read
the note from his unhappy Japanese wife. In the frantic days that
followed, Benda would be haunted by that seemingly impulsive
send-off, the hugs and smiles that would be his last contact with
Mari, 6, and Ema, 4.
Benda’s unsuccessful efforts to get information from his wife’s
family and friends, the Japanese police and his children’s
schools, left him feeling as if he was trapped in a Kafka novel.
Since he couldn’t speak Japanese, he was forced to rely on sign
language or use Japanese friends as interpreters. After months of
fruitless searching, his visa expired last November and he was
forced to return to his parents’ home in Virginia.
Early this year, Benda and Brian Thomas, a Welshman involved in a
similar situation, began fighting back. Through an ad in a Tokyo
magazine, they have identified about a dozen cases of alleged
child abduction by Japanese parents. In most cases, they are
Japanese women married to foreigners, but there have also been
several incidents involving Japanese men and foreign wives.The men
have established a Japanese chapter of the Childrens Rights
Council, a Washington-based organization focused on family issues,
stepping up pressure on Japan to sign an international treaty WMH
FN1 designed to help parents retrieve children who have been
unlawfully abducted to another country.
In June, a federal grand jury in Virginia charged Benda’s wife
with parental child kidnapping, a felony offense that carries a
penalty of up to three years in prison or a $250,000 fine. A 1993
federal law makes it a crime to prevent a person from exercising
his or her parental rights by removing a child from the United
States or keeping a child outside this country. WMH FN2
Yoko, who is living somewhere in Japan, could not be reached for
this article. But since Japan does not treat parental child
kidnapping as a criminal offense, it is not covered under the
U.S.-Japan extradition treaty.
Counselors in Japan have noted an increase in these cases in
recent years, which they attribute to the expanding numbers of
international marriages and rising divorce rate. The U.S. Embassy
in Japan, which provided help in 10 custody cases, has also gotten
more calls recently.
As in any domestic dispute, particularly those involving children,
these cases are messy and emotional, making it difficult to sort
out the victims from the victimizers. Usually, it was not possible
for authorities to interview the Japanese spouses, since they had
either disappeared or refused to talk. The few who were located
said they fled because they wanted to make a better life for
themselves and their children and could see no other avenue of
escape.
The problem of parental child abduction here is complicated by a
tradition of resolving family disputes outside the courts, a
strong belief in the mother-child bond, lingering prejudice
against foreigners and differing attitudes toward divorce.
When divorces occur, the children generally stay with the mother.
Fathers are encouraged to cut off contact with their children in
the belief that it is confusing to maintain two sets of families.
By making a clean break, divorced parents are able to marry again,
lessening the stigma of failure and shame that many Japanese still
associate with failed marriages. In several instances of alleged
child abduction by Japanese men, the foreign wives were told by
their husbands and in-laws that their children should be raised as
Japanese, implying that nationality and culture carried more
weight than maternal ties, said Benda and others.
Although an increase in divorce has produced more divided
families, it is rare for two Japanese parents to dispute custody
or fight over their children in the courts. “In Japan, when you
get a divorce, it’s terrible, it’s shameful,” said Ken Joseph,
director of Japan Helpline, a telephone counseling service. “You
want to put that behind you and you don’t want anything from the
past haunting you all the time.”
But to people from countries such as the United States or the
United Kingdom, where shared custody is increasingly common, the
idea of being forced to give up their children for life is
horrifying.”The reason I’m doing this is for my son to have the
right to have access to me,” said Thomas, who hasn’t seen his
6-year-old son, Graham, for nearly three years. “I love him and I
won’t abandon him.”Thomas, who came to Japan with his Japanese
wife in 1988, blamed friction with his in-laws–who moved in after
the birth of his child–for the tension in his marriage. One
evening in November 1992, he returned from work to find his wife
and child gone, the house locked up and his things on the front
doorstep. He was allowed to see Graham a few more times before his
wife broke off contact.
Foreigners are particularly vulnerable in child custody battles.
In several cases, distraught parents have discovered that they
unknowingly signed documents written in Japanese granting their
spouses a divorce or transferring the guardianship of their
children to spouses, grandparents or others.
When Thomas hired an attorney to fight for custody of his child,
his wife, Mikako, produced a document transferring the
guardianship of his son to her parents. It was signed with his
hanko, a seal that is used in Japan in lieu of a signature.
Thomas successfully challenged the guardianship transfer in court,
arguing that his hanko had been used without his knowledge. But
this summer, a district court granted his wife a divorce and full
custody of their son. He has appealed that decision.
He is also living on borrowed time. Like many foreigners, he
entered Japan with a spouse visa, which must be renewed every
three years. His wife refused to sponsor him when his visa expired
in 1994, forcing him to stay in Japan illegally to continue his
court battle.
Mikako could not be located. But her sister, Mariko, who was
interviewed by phone, said that the marriage was a mistake and
that Graham was much better off living with his mother. Mikako’s
mother, Toya Takezawa, also contacted by phone, said joint custody
is an unrealistic notion in Japan. “I don’t think the American way
is the best way,” she said.
In Japan’s historically non-litigious society, the family court is
designed to provide ways for problems to be resolved amicably,
with the help of a court-appointed mediator. Attorneys said there
is no legal mechanism to award joint custody of children, but the
noncustodial parent may be given visitation rights.
Japan is one of a handful of developed countries that has not
signed the 1980 Hague Convention on the Civil Aspects of Child
Abduction, which establishes legal remedies to ensure that a child
taken to or hidden in another country will be returned to the
country of primary residence. The U.S. and 41 other countries have
signed the agreement.
Kunio Koide, a Japanese Foreign Ministry official, said his
government does not see the need for signing the treaty because
Japan’s Protection of Personal Liberties Act prevents an
individual from being illegally restrained. But Koide acknowledged
that it would be difficult to prosecute a parent under that act.
U.S. Consul General Wayne Griffith said the Clinton administration
has urged the Japanese government to sign the Hague convention.
Unless a country is a Hague signatory, the United States can do
little to help parents caught in a custody battle.
The U.S. Embassy will conduct a child welfare check if the
custodial parent agrees. In that case, a consular official will
meet the parent and child, usually in neutral territory such as a
hotel or park, and report back to the aggrieved spouse.
Still, many angry parents don’t think the U.S. government tries
hard enough.
Since Charles Talley’s wife, Yumi, and daughter, Lea, disappeared
from their Palmdale apartment three years ago, he has sent letters
to the State Department, the U.S. Embassy in Tokyo and California
politicians seeking help.
A consular officer met with Talley’s estranged wife and child in a
hotel in western Japan and sent the California man a letter
stating that Lea appeared healthy and happy. But a frustrated
Talley said the information was of little value, since the U.S.
official did not visit his daughter’s home and got most of the
information from his estranged wife, whom he later divorced.
When reached by phone in Japan, Yumi said she will never return
Lea to her ex-husband, whom she accused in court papers of
physical abuse. “I’m very scared,” she said, requesting that her
location be kept secret.
Talley, who has custody of his two sons, Robert and Ellis, from a
previous marriage, vehemently denies the abuse charges. He said he
wants Yumi to come back to the U.S. and face him in court, where
she has been charged with parental child abduction.
Like many parents in similar straits, Talley admits to having
toyed with the idea of kidnapping his child back. “Every book I’ve
read on re-abduction says it’s not good for the child,” he said.
“I’m not for that. But sometimes, I’d like to threaten that.”
Dale Martin, a British citizen, has spent countless hours and
thousands of dollars trying to get access to his 4-year-old
daughter, Lina, allegedly kidnapped by his wife, Tamie Kakuta, in
1992. Tamie could not be reached for this story.
Martin, a former travel industry executive who lives in Tokyo,
claims his wife tricked him into signing a divorce agreement. He
took his case to family court and after 11 months of negotiations,
his wife signed a court-approved agreement giving him visitation
twice a month.
That arrangement worked pretty well, Martin said, until he asked
to see Lina more often. In April of this year, a frustrated Martin
kept his daughter overnight against Tamie’s wishes. After that,
his angry ex-wife cut off all contact. When Martin went to the
police with a copy of his court-approved visitation agreement,
they told him it was a voluntary arrangement and they could not
intervene.
Martin has refused to give up, going back to family court to
renegotiate the visitation agreement and filing a separate civil
claim requesting damages for mental distress.
While Martin hopes to return to England, he said he won’t leave
Japan until he is assured of seeing his child regularly.
Meanwhile, he is supporting himself by teaching English and
looking for a new attorney. His first one quit, after telling him
the case was hopeless.
Makiko Inoue of the Times’ Tokyo bureau contributed to this
article.
Descriptors: CHILD CUSTODY; DIVORCE; MISSING CHILDREN; JAPAN —
LAWS; PARENTS;
Copyright (c) 1996 Times Mirror Company
Note: May not be reproduced or retransmitted without permission.
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——————–
1. The Convention on the Civil Aspects of International Child
Abduction, done at the Hague on 25 Oct 1980 [The Convention]
2. 18 U.S.C. 1204: “International Parental Kidnapping Crime
Act of 1993”