In June of 1999, my wife at the time was arrested in Irvine, CA for spousal abuse. With a temporary custodial order granted to me, I stayed with my two-year old son, and for the time being, I moved in with my mother. After my wife was released from jail, she was granted visitation rights that I wholeheartedly complied with. On November of 1999, during an overnight visitation, she absconded her residence and abducted my son to Japan.

After the abduction took place on Saturday, November 13, 1999, I went to court on November 15th. The judge made the temporary court order permanent. The court order later became part of the divorce judgment. (Part of the obstacle I had to overcome in getting Japan to recognize the U.S. judgment was to make Japan understand that “order” and “judgment” are the same in essence. We had to use a different lawyer in California just to prove this point.)  I flew to Japan one week later and sought legal assistance. 

There were three filings that were submitted to the Osaka courts:

1. 1.Request for the court to recognize U.S. custody order
   

2. 2.Request for mandatory visitation
   

3. 3.Request for emergency handing-over of the minor (Habeas corpus)
   

The first two filings were done simultaneously, and the third one was done after I had received a favorable judgment from the first filing. The simultaneous filing was an attempt to minimize the disadvantage time without access to my son could have on my case. The third filing was a desperate attempt to make the Japanese court enforce its judgment.

On top of all these filings, I found that a parent like myself will have to defend themselves from two other filings by the opposing party:

1. 1.Request for divorce in Japan
   

2. 2.Request to change custody
   

The request for divorce was my ex-wife’s attempt to move the custody case from Osaka District Court to Osaka Family Court after she realized she was losing at the District Court level. Eventually, her request was denied, as the Osaka District Court ruled that the divorce filing was done in U.S. and they had no jurisdiction. The request to change custody was filed by her toward the end of this legal battle, and resulted in a settlement between both sides.

Recognition of U.S. Judgment

Out of these three filings, the recognition of U.S. custody order was the best chance I had to gain custody in Japan. Instead of the Osaka Family Court, the filing went to the Osaka District Court. Simply put, my lawyers had to prove that:

1. 1.The judgment in U.S. is finalized, that it cannot be appealed.
   

2. 2.There is reciprocity between the two countries regarding the judgment. In this case, it must be shown that in similar cases, U.S. is willing to recognize Japanese court’s judgment.
   

3. 3.The recognition of the foreign judgment is not against the well being of the public.
   

Though the proceeding took about 6 months with various oppositions and obstacles from the opposing party, the judge presiding this hearing was very fair. During this time, mediation was taking place, and I was not allowed any visitation with my son.  Even before I testified in court in September of 2000, he pretty much told my lawyers that he saw no problem in recognizing the U.S. judgment, and that a two-year old boy would have no problem readjusting to life in U.S. He just needed to meet me, the father, before he rendered the custody judgment. After my ex-wife testified to the court on August of 2000, I testified to the court and was cross-examined by the opposing party on September of 2000; and the judge rendered the custody judgment in my favor on October of the same year.

Throughout the following year, the opposing party was appealing against this judgment, but the Osaka Appellate Court still judged in my favor. The Supreme Court of Japan declined to hear the appeal, thus finalizing the recognition of my U.S. custody order in Japan.

Jinshin Hogo Seikyuu (Protection of Personal Liberty)

            For the enforcement of the custody judgment, however, forceful retrieval of my son was not possible under the circumstances, as he was not in any immediate physical danger. Recognition and enforcement of the judgment are two different things in Japan. In civil matters, especially family matters, Japanese courts have limited power to enforce judgments when it would require the child to be physically removed from the non-custodial parent in order to give it to the court ordered custodial parent.  The only time the government will get involved is when a child is deemed to be in physical danger. Other than this scenario, neither the courts nor the police will forcefully take the child away from whoever had the “actual” custody, even if a court has given custody to someone else.  Anyone else doing so would be deemed an abduction.

Yet, as time elapsed, we had to find ways to gain access to my son. So we had to make a case, stating that my son was, in fact, in danger. We filed the Habeas corpus petition (Jinshin Hogo Seikyuu) on May of 2001. An attorney representing my son (Guardian Ad Litem) was appointed by the Osaka District Court to evaluate the situation by interviewing all the people involved. In the end, I lost the case on September of 2001. Though I filed an appeal, accompanied by an opinion letter from psychologist Richard Gardner, my petition was denied.

I eventually filed an indirect enforcement request, and after overcoming the opposing side’s arguments against enforcement, the court rendered a judgment, penalizing my ex-wife 30,000-yen a day for not returning my son to me. Yet, this penalty was difficult to enforce, as my ex-wife did not work and therefore had no wages to be garnished. Moreover, her bank account information was unknown. According to my lawyers, all she needed to do was to file for bankruptcy to escape from paying at all.

Visitation

At the same time this initial filing was done, we also submitted a request for mandatory visitation to the Osaka Family Court.  Like many other similar petition, I first went through a series of mediations. Despite the opposing side’s objection, we had pushed through a preliminary visitation set for December of 2000. The visitation took place at the Osaka Family Court. However, as expected, the mother intentionally put tremendous amount of fear and anxiety into the child that he started to cry before he was able to turn around to see me. It was over within 3 minutes. Admitting that the mother was not cooperating, the mediators declared that mediation had failed, and the case would move forward to the judge. . Considering the merit of the case, the judge would see whether visitation was appropriate. If so, he would have to set the frequency of visitation. 

In March of 2001, the Osaka Family Court rendered a mandatory visitation schedule: since I was the custodial father, I am entitled to see my son once a year for 3 hours.

Both sides submitted an appeal, with us stating that the time and frequency was too little, and the opposing side stating that it was too much. Since the court rendered this schedule presuming that my ex-wife and I were still married under Japanese law, my lawyers then filed the U.S. divorce judgment to the Kyoto City Ward. Being the case, the court would have to perceive me as the sole custodial parent and would have to give me a generous visitation frequency. Almost a year later, the Osaka High Court rendered a judgment stating that the visitation scheduled set by the Osaka Family Court was inappropriate, as I was the sole custodial father, and the High Court asked the Family Court to redo the schedule.  The Osaka High Court did not give any suggestions or guideline as to what is appropriate; they just stated that, as a custodial parent, I deserve more visitation opportunities.

Final Resolution

By  this time, three years had passed since the abduction, and my ex-wife filed a petition to the Osaka Family Court to change custody in July of 2002. The judge presiding this case was very concerned about my son’s mental health, stating that this “war” needed to stop. He asked us to try to come to a compromise. If this compromise failed, then he would render a judgment as he saw fit. I presented my “plan” to the court on November of 2002, asking for a monitored visitation at the Osaka Aquarium. The visitation went through, and I saw and interacted with my son for the first time in three years. His mother and his oldest brother accompanied him. As expected, he refused to talk to me, and when he did, he said to me angrily that he did not want to see me. He even hit me. According to my lawyer who accompanied me, as the opposing lawyer saw what was happening, tears came out from her eyes. As a lawyer who fought a battle against me, she knew how desperate I was; now seeing how my son treated me, she couldn’t help but showed her emotions. I just kept reassuring my son that I was not there to take him away. Not seeing any point in prolonging the visitation, I let him go after 30 minutes.

When I got back to my hotel, I received a call from my lawyer. He said that my ex-wife called him and asked him to ask me to meet with her the next day. I accepted the invitation, and I met with my ex-wife, with my lawyer sitting at a distance to monitor and act as a witness. We mediated: I agreed to give her custody as long as she gives me regular access to my son. I saw my son again the next couple days with less anger from him. The settlement was formalized in February of 2003. Though she and I still got into disagreements from April to August, my lawyer was willing to step in and helped us settle.

There is no question that my son was deeply brainwashed, but I will still be his father. I saw him in November of 2003, and plan to see him again in August of 2004. I cannot guarantee that this relationship will be trouble-free, but so far, it is much better than fighting in court. While I understand that mediation is difficult and may not apply to all cases, I started to encourage people in similar situation than me to try to find a way to settle peacefully. It is, after all, the Japanese’s preferred way to conflict resolution.