Japan Times: How do you find a missing spouse in Japan?

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How do you find a missing spouse in Japan?

BY 

CONTRIBUTING WRITER

A reader writes: “I live in Japan with my son. His father left us nine years ago. After a couple of months, he contacted me, though he has never contacted us since then. I have never heard any news from him. I tried also to send a letter to his parents with a picture of my son attached, but I received no reply from them. I’m so desperate to know what happened to him and even whether he is still alive or not.”

There are several ways for the reader to find her husband if she consults with a lawyer. The usual way of tracing someone’s address is to ask a lawyer to obtain their family registry (koseki-tohon) or certificate of residence (juuminhyō) from their local municipal office. Attorneys are allowed to obtain someone’s koseki-tohon or juuminhyō without the permission of that person, as long as it is deemed necessary for a case.

If the reader knows the address of where she and her husband used to live or his parents live, a lawyer can trace her husband’s present address by obtaining his koseki-tohon and juuminhyō. However, it is essential that the reader knows the kanji of her husband’s or husband’s parents’ names in order to obtain those documents. Sometimes, the fact that non-Japanese spouses do not know the kanji of their spouse’s name can stop a case moving forward.

To avoid this kind of situation, non-Japanese spouses are advised to copy the koseki-tohon or take a picture of it when they marry a Japanese national.

Once the lawyer has traced her husband’s address, the lawyer can contact and negotiate with him over the terms of the divorce, presuming that is what she wants. If he does not reply to the lawyer, she can sue him for divorce on the grounds of abandonment. If he is not living in Japan, she can still sue him at Japanese family court for divorce on the same grounds.

However, even if the husband’s address can be traced, it may be that the husband no longer lives in that place and neglected to change his address on his juuminhyō, for whatever reason.

In this kind of case, due to the possibility that he might be missing or has passed away, the wife can seek a different remedy through the courts: She can file a petition called an Adjudication of Disappearance arguing that her husband has been missing for more than seven years. If the petition is granted, her husband would be regarded as being deceased from the point seven years after the last communication with her.

Again, it’s important to stress that although the family registry and certificate of residency come in very useful when you want to trace a Japanese person’s address, a foreign spouse must know the exact kanji of their partner’s name.

Otherwise, the case risks being stuck in limbo.

Seiji Yamaura is an attorney with the Foreign nationals and International Service Section at Tokyo Public Law Office, which handles a wide range of cases involving non-Japanese in the Tokyo area (03-5979-2880; www.t-pblo.jp/fiss) FISS lawyers address readers’ queries once a month. Your questions and other comments: lifelines@japantimes.co.jp

 

Source:  “How do you find a missing spouse in Japan?”, The Japan Times, 3 December 2017

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Canadian Supreme Court international parental child abduction appeal

This article appeared online last week.  According to the Supreme Court of Canada website, the judgment was reserved.

thestar.com logo

Supreme Court case could have far-reaching implications for international child custody cases

A case being heard at the Supreme Court on Thursday could change the way Canadian authorities decide the fate of children caught up in international child custody and abduction cases.

Kate Baggott says "ultimately nothing was gained" by her four-year legal battle. She described the experience as “surreal."
Kate Baggott says “ultimately nothing was gained” by her four-year legal battle. She described the experience as “surreal.”  (KATE BAGGOTT)  

It took four years battling her estranged husband in German and Canadian courts before Kate Baggott was finally allowed to settle with her two children in Canada.

On Thursday, the St. Catharines woman hopes to begin the final chapter of her struggle when the Supreme Court of Canada examines the workings of an agreement that determines the fate of children caught up in international child custody and abduction cases.

Ultimately, the court’s ruling could change the way Canadian authorities decide what country these children should live in and result in a more child-centric approach.

In Baggott’s case, the years of legal wrangling meant that her children lived in limbo, moving back and forth between Germany and Canada, disrupting their education and making it impossible to put down roots.

“Ultimately nothing was gained from having gone through this process,” Baggott told the Star in an interview.

She described the experience as “surreal” and said the court process was too focused on legal arguments instead of what is best for the children.

The Supreme Court’s ruling will have no effect on Baggott’s case, after a German court finally awarded her full custody of her son, 15, and daughter, 11, from their father John Paul Balev and let the three return to Canada in April. But the court decided to proceed anyway with the appeal of Ontario Court of Appeal ruling as it recognized the importance of the issue.

All the parties at Thursday’s hearing hope the high court can provide guidance on the definition of “habitual residence” under the Hague Convention, an international child protection agreement recognized by 98 countries.

 

 The designation determines where a child in a custodial dispute should temporarily stay while the case is ongoing and which country has the authority to adjudicate the case.

“This comes down to how we figure out where a child’s habitual residence is. Right now, there is no national consistency on this,” said Patric Senson, a co-counsel for the Baggott, one of eight parties with standing before the Supreme Court.

“Whatever comes out, it will provide some clarity for everybody involved in this situation so everyone will be working from the same page . . . reduce the amount of litigation and stress for the child and litigants.”

In Canada and elsewhere, different courts have different interpretations of habitual residence, with some defining it as the last place of the residence agreed upon by the parents prior to the removal of the child by one party, while others base it on the children’s best interests.

The appeal to the Supreme Court was brought by the Office of the Children’s Lawyer (OCL), a Ontario body that represents children under age 18 in court cases involving custody, access and child protection, as well as in civil, and estates and trusts cases.

Baggott, a writer, and Balev, a computer programmer, married in Toronto in 2000 and moved to Germany on work permits the following year for his job. Their two children were both born there but were not eligible for German citizenship.

The couple’s relationship fell apart but the family still lived together in the same house when the mother and their two children moved back to Canada in 2013 after the father agreed to let the children stay with their mother in Canada for 16 months.

However, according to Baggott’s submission to the high court, Balev later went to German authorities claiming Baggott abducted their children, sparking the four-year legal battle.

Last September, the Ontario Court of Appeal dismissed the children’s objections to returning to Germany and ruled that the mother breached the Hague Convention and they must all go back because Germany was their “habitual residence.”

In its factums to the Supreme Court, the OCL said the appeal court decision to return Baggott’s two children to Germany was wrong because it failed to consider the best interests of the minors, who at that point had lived in Canada for three years, were in school and had friends and support in the community.

“The goal of deterring ‘abduction’ and protecting the interests of children generally was prioritized over the rights of the individual children before the courts,” said the OCL in its submission.

“As a result, (the children) were harmed by the operation of the very Convention that was meant to protect them. In this appeal, the OCL urges an interpretation of the Convention that is child-centric, consistent with Canada’s obligations.”

However, the attorneys general in Ottawa, Ontario and British Columbia argue the current approach in determining the child’s residence offers an “objective” guide for Canadian authorities to follow.

“The Convention is intended to combat international child abductions, including the wrongful retention of children in foreign states and to protect children from their harmful effects,” said the submission from the federal attorney general.

The submission said “the prompt return of the child to the state of habitual residence best protects the interests of children by respecting rights of custody under domestic laws. The Convention is not intended to determine the custody arrangement that is in the best interests of the child.”

Ontario warns in its submission that the child-centric approach proposed by the appellant “would incentivize parents to subject their children to ‘harmful manipulation’ — developing artificial attachments to their new environment — in order to influence the child’s perspective about their habitual residence.”

While the case is still up in air, both Baggott and Balev said in their submissions the fight has exhausted their financial resources.

“The Hague Convention is meant for genuine cases of abduction when one parent disappears with the child in the night,” said Baggott, who is still struggling to turn a new page of her life with her two children. “It is not meant for cases like ours.”

Source:  “Supreme Court case could have far-reaching implications for international child custody cases”, The Star, 8 November 2017 

Lawyer calls for end to ‘kidnapper’s charter’

Yousif Ahmed

A Scots lawyer is calling for an end to a loophole in the law that allows one parent to remove their child from Scotland without the consent of the other.

Yousif Ahmed, 29, is urging the Scottish government to propose changes to the law to bring it into line with rules south of the border, where such an act would be a criminal offence.

Mr Ahmed has spoke to Justice Secretary Michael Matheson and is being supported by Reunite International, a charity dealing with international parental child abduction.

Mr Ahmed, an associate with Cannons Law Practice in Glasgow, said: “With the world becoming smaller, international relationships are becoming more common but if such a relationship breaks down it is ultimately the children who may end up paying the highest price by losing all contact with a parent and their friends.

“With the exception of Scotland, the rest of the United Kingdom rightfully criCouminalises the wrongful act of parental child abduction. That is a form of deterrence firmly in place.

“Surprisingly, we do not have that deterrence here – parental child abduction is not recognised as a criminal offence unless a court order has been obtained prohibiting the removal of a child and that in itself raises various problems and issues.”

He added: “To obtain such a court order, you must have some prior knowledge of a pending or imminent abduction and go through a formal legal process which in most cases is not fit-for-purpose, nor effective for preventing parental child abduction from Scotland.

“We also have a distinct lack of protocol and practice for preventing parental child abduction where an abduction is suspected as being likely – what that means is that without a court order, there are is no scope of alerting police to put in place port alerts or red flags which can alert UK border control of a child being at risk of parental child abduction, unlike in England and Wales where a system of protocol and practice is in place to help prevent this from happening.”

Source:  “Lawyer calls for end to ‘kidnapper’s charter'”, Scottish Legal News, 24 October 2017

Enforcement measures eyed to settle child custody battles

The Mainichi

Enforcement measures eyed to settle child custody battles

TOKYO (Kyodo) — An advisory panel to the Japanese Justice Ministry proposed Friday that measures be enforced on divorced parents who take custody of their children against a court order to pay fines.

If the parents continue to refuse to let the children go, court officials will be entitled to take away the children, the panel said in an interim report on the reform of the nation’s child custody system.

The proposal has been made at a time when critics are criticizing the inconsistency between the state’s handling of such disputes between domestic and international marriages as the latter were already subject to rules of the so-called Hague treaty.

Japan in 2014 acceded to the Hague Convention on the Civil Aspects of International Child Abduction, which sets out rules and procedures for the prompt return to the country of habitual residence of children under 16 taken or retained by one parent, if requested by the other parent.

The Justice Ministry plans to solicit public comments on the report later this month. After reporting the outcome to the panel, the ministry is expected to submit a bill to revise the civil execution law to the Diet in 2018 at the earliest.

There is currently no stipulation in Japan’s legal system regarding parents who do not abide by a court order to give away children to their former marital partners. Such disputes have been handled based on regulations regarding the seizure of assets.

According to the proposal in the interim report, divorced parents who refuse to give away their children in defiance of a court order will be fined until their surrender to encourage them to voluntarily abide by the court decision.

If the parents continue to ignore the court order for two weeks, court officials will be allowed to take away the children and put them in the hands of the other parents.

If divorced parents fail to pay expenses to raise children, the report also proposes enabling courts to make inquiries to financial institutions on information about such parents’ financial assets.

Source:  “Enforcement measures eyed to settle child custody battles”, The Mainichi, 9 September 2017 

Japanese family law “incompatible” with Hague Convention

There was a telling article published in the International Academic Forum’s Journal of Asian Studies Summer 2017 issue.  The author, Takeshi Hamano, of the University of Kitakyushu, spells out why the ratification of the Hague Convention has had a limited impact – because domestic Japanese family law is “incompatible” with the principle of the Convention.

I set out, below, the abstract and, below that, a link to the article itself – it is not a subscription website:

Author: Takeshi Hamano, University of Kitakyushu, Japan
Email: ian.mcarthur@sydney.edu.au
Published: August 4, 2017
https://doi.org/10.22492/ijas.3.1.03

Citation: Hamano, T. (2017). The Aftermath of Japan’s Ratification of the Hague Convention on Child Abduction: An Investigation into the State Apparatus of the Modern Japanese Family. IAFOR Journal of Asian Studies, 3(1). https://doi.org/10.22492/ijas.3.1.03


Abstract

The aim of this paper is to discuss the ways in which a recent international dispute has evoked an inquiry about the family ideology of modern Japan. Initially, it explains a recent issue on Japan’s ratification to the Hague Convention on child abduction. In April 2014, the Japanese government finally ratified the Hague Convention on child abduction, an international Convention to resolve disputes on international parental child abduction. However, skepticism toward Japan still remains, because, in order to put the international Convention into practice, Japan has not proceed to radical family law reform at this stage. To recognize this incongruent situation, this paper explains that the present Japanese family law is incompatible with the principle of this international Convention. Although the Convention premises shared parenting in the grant of joint child custody even after divorce, Japanese family law keeps the solo-custody approach, which is necessarily preserved in order to maintain Japan’s unique family registration system: the koseki system. Arguing that the koseki system, registering all nationals by family unit, is an ideological state apparatus of Japan as a modern nation state since the nineteenth century, this paper concludes that recent international disputes regarding parental child abduction in Japan inquires about a radical question on national family norm of Japan.

Keywords

Japan, family, the Hague Convention on the Civil Aspects of International Child Abduction, child custody, koseki

Link to article:  http://iafor.org/archives/journals/iafor-journal-of-asian-studies/10.22492.ijas.3.1.03.pdf