Anastasiya Minkova returned from a trip and found the house empty: her husband had left with his two year old son. In many countries the scene could immediately trigger an investigation for parental abduction. In Japan, for decades, it could become the game that decided who would keep the child.
Japan knocks down a perverse advantage. Until last April, the Japanese system established that, after divorce, only one of the parents could retain legal authority over the children. The courts tended to favor the person who lived with the child and had assumed the role of primary caregiver during the process.
That created an incentive hard to ignore: Taking the child before initiating the divorce could put the other parent in a position that was practically impossible to overcome.
Lawyers advising the “abduction”. The logic of the system converted a behavior considered parental abduction in other countries into a tolerated family strategy de facto. According to the lawyer Masanori Tanabewho leaves the home with the children begins to appear before the court as their usual caregiver, decisively strengthening their position.
John Gomez, founder of Kizuna Child-Parent Reunionsums it up still cruder: Some family lawyers directly advised their clients to take the children because the matter was treated as a civil dispute, not as a crime.
The courts were late. time played in favor of the parent who had taken the child. By the time a court heard the case months later, the child may have been living in a new home for a long period of time, attending another school, and maintaining limited or no contact with the parent left behind.
Breaking this situation could be interpreted as an alteration of the stability of the minor, which ended up consolidating precisely the advantage obtained through his transfer.
Reform and shared parental authority. Now Japan has modified its Civil Code to allow the so-called kyodo shinken, a regime in which both parents can retain legal capacity over important decisions after divorce.
The Ministry of Justice hopes that the change force parents to think about the interest of the minor and to maintain adequate participation in his or her upbringing. Furthermore, unilaterally taking the child and refusing to cooperate may be taken into account against anyone who aspires to obtain their legal authority.
Sharing decisions is not sharing children. The reform, in addition, has a decisive limitation: kyodo shinken is more accurately translated as shared parental authority, not necessarily shared custody or cohabitation. Both parents could intervene in issues such as education or medical care without there being a mandatory distribution of the time they spend with the child.
Lawyer Masami Kittaka warns on CNN that the new system also does not guarantee that old cases are reviewed or that estranged parents automatically regain lost contact.
The problem of foreign parents. Yes, because language barriers, lack of information and insufficient legal representation make many foreigners react when the situation is already consolidated.
Examples like Emily Sato’swho said that she returned home and found that her husband had taken her daughter, removed much of the furniture, and removed her from the list of people authorized to pick her up from school. When the case came to court, exclusive cohabitation with the father was already discussed as a stable environment that should be preserved.
Separations that last longer than childhood. Jeffery Morehouse wears 16 years without seeing his sontransferred from the United States to Japan when he was six and a half years old despite the fact that he had primary custody. He obtained Japanese court rulings validating his US order, but claims he never got them effectively executed.
His last farewell was Father’s Day 2010and since then he avoids family celebrations and places where other children can remind him of how old his son was when he disappeared from his life.
Protection against abuse. Shared parental authority also cannot applied indiscriminately. Some associations fear that it will force people who have suffered domestic violence to remain linked to their aggressor, although the reform allows contact to be restricted in cases of mistreatment or child abuse.
The challenge will be to differentiate situations of legitimate protection from those in which one of the parents uses the child to gain advantage in a conflictive breakup.
Japan still has not eliminated the incentive. There is no doubt, the reform represents a historic break with a model that favored exclusive custody and could turn a flight into a judicial advantage. However, experts they point out that the same problem will continue to exist as long as there are no clear consequences for whoever takes the minor, guarantees of contact and mechanisms capable of executing court decisions.
Japan has finally recognized that allowing a parent to disappear with their own child was part of the problembut now he must show that changing the law can also give children back the relationship they lost.
Image | Chris Rimmer, Jenny Webber
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