Tuesday, February 1, 2011

Families and Child Custody in Japan

A left behind father
One of the major deliverables expected of the Kan Administration in the upcoming summit in June, is agreement for the rapid signing of the 1980 Hague Convention on the Civil Aspects of International Child Abduction and the establishment of a mechanism for the resolution of contentious child custody cases. The US government now recognizes that too many mothers and fathers have been left without access to their children by Japanese former spouses who abduct their children to Japan, which is the only G-7 country that did not sign the Hague.

The Obama Administration has made this a priority, with Congress scruntinizing its actions all along the way. In the last Congress, there was a resolution (H Res 1326) highlighting the problems with Japan concerning child abduction and more congressional action is expected. Secretary of State Hillary Clinton includes the issue in all her meetings with Japanese officials. The State Department webpage on Japan and International Child Abduction is regularly updated and Assistant Secretary of State Kurt Campbell holds regular Town Halls with left behind parents. The NSC office on Multilateral and Human Rights affairs manages the issue for the White House.

In September, US Amb John Roos issued a statement for the Tokyo Shimbun emphasizing the human toll of not signing the Hague. In November, State Department officials toured the passport issuance facilities of the Japanese Embassy in Washington and discussed procedures. Japanese consular officials have regularly and illegally issued passports for American children against the wishes and knowledge of the American parent. This makes it seem like the Japanese State is aiding the abducting parent.

Europeans, Canadians, and Australians have also pressured Japan on the issue. There have been a number of joint statements by Ambassadors asking Japan to sign the Hague. The most recent was issued in October 2010. On January 25th, the French Senate passed a resolution demanding that Japan sign the Hague.

On January 21st, Japan annouced that it set up a Cabinet-level council to examine whether to join an international convention that sets procedures for resolving international child custody cases. The council's first meeting, held on January 25th, included Senior Vice Justice Minister Toshio Ogawa, State Foreign Secretary Takeaki Matsumoto,  Senior Vice Health Minister Yoko Komiyama, and Deputy Chief Cabinet Secretary Tetsuro Fukuyama. The establishment of the Council, Fukuyama emphasized, does not mean that a decision to sign the Hague is imment.

Japan is not the only Asian country that lags in signing the Hague. Only Hong Kong, Macau, Australia, and New Zealand have signed. Singapore and South Korea say that they will do so soon.

On January 13, APP held a seminar to discuss the cultural context for recent international child custody disputes between Japanese and American citizens with Professor Allison Alexy, an Assistant Professor of Anthropology at Lafayette College. Dr. Alexy also met privately with congressional staffers to explain the complexity of the issue. Here is a summary of her remarks.

Families and Child Custody in Japan

In recent years, custody disputes between American and Japanese parents have gained in attention and political importance. Despite the variety of particular details in each case, they all are shaped by a single fact: the Japanese government has not signed the 1980 Hague Convention on the Civil Aspects of International Child Abduction. This international agreement stipulates that signatory nations will honor child custody decisions reached in other member countries and, moreover, use local forces to recover any children illegally removed from such custody arrangements. Because the Japanese government hasn’t signed, hundreds of children with one non-Japanese parent are currently living in Japan in violation of custody agreements reached in other nations.

The solution to these problems might therefore seem simple: if only the Japanese government would sign this agreement, these problems would be more easily solved. However, the Japanese government’s unwillingness to sign reflects much more than political posturing and the Hague agreement would require fundamental changes to the structure of Japanese family law.

International child custody and abduction is difficult to resolve in Japan because it: 1) conflicts with the lack of legal joint custody in Japan; 2) contradicts recent social norms and legal decisions that display a preference for maternal care and custody; 3) requires the Japanese legal system involve itself in family disputes when domestic legal norms push families to reach some agreement before seeking legal settlement; and 4) ultimately challenges the relationship between Japanese citizenship and kinship.

Lack of Joint Custody in Japan
Historical patterns of custody in Japan have changed, moving from legal preference for children to stay in their birth lineage, to gendered custody (girls going with mothers, boys with fathers), to the current preference for maternal custody. Joint custody—custody of a single child shared between parents–has never been a legal norm in Japan, although groups of children have been split between parents by gender or age (younger children going with the mother, older children with father).

Before and through the 19th century, Japanese patterns of custody emphasized the lineage and the majority of children remained with their fathers after divorce. This was not reflective of a belief that fathers would provide the best custody, per se, but rather that children should be with their birth lineage and, because the vast majority of lineage was traced through men, fathers just happened to be the representative of lineage.

Preference for Maternal Care
A second important pattern shaping current situations is the shift from a legal preference for lineage (or ie, family line) to maternal care. This shift happened in modern Japan, mostly in the postwar, and now in the 60 percent of divorces that involve minor children, mothers are granted (sole) custody about 80 percent of the time.

In the contemporary moment, because of the ways ideal family life was organized for most of the postwar, mothers were the ones responsible for explicit childcare and fathers’ support was commonly understood to come from more implicit behaviors like steady work.

In the current moment, the Japanese legal system has strong preference for the importance of maternal care, a norm which literally reinforces itself as joint custody cannot be explored. Although the lack of joint custody can be explained as a holdover from former legal preference for lineage, many Japanese people also describe it as the ideal of a clean break. Joint custody would make things too messy.

Requirements of the Legal System to Settle Disputes outside of Court
The legal and social norms that surround custody are further shaped by legal patterns that push conflict and settlement out of the court system. In divorces, for instance, the legal process is organized so that married couples must often come to settlement on their own, rather than involving the court.

In over 90 percent of contemporary divorce cases, spouses sign what is called a “mutual” or “uncontested” divorce agreement. This does not mean that they completely agree with each other, or that there was no conflict about the divorce. On the contrary, there was probably a great deal of conflict, but it remains largely hidden from the court system’s records.

In Japan, a divorce agreement like these markers of the end of negotiation and conflict–this is the agreement people sign when they have finally reached a decision. In contrast, in places like the United States, divorce petitions are usually the beginning of protracted conflict. When one spouse files for divorce in the United States, that is the beginning of the negotiation about how to end the marriage. Divorce agreements in Japan, however, mark the end of that process and, for 90 percent of currently divorcing couples, that conflict and negotiation happens outside the court system.

This pattern has strong implications for international child custody disputes because it suggests the ways in which the Japanese legal system is set up to push conflictual negotiations into personal and private settings. In divorce cases, the Japanese system strongly prefers couples to come to their own agreements and look to the state merely for ratification, rather than sustained mediation.

Kinship and Citizenship
Although actual experiences have continuously varied from the ideal, and the ideals have shifted over time, the “Japanese family” remains one of the most powerful idioms to describe Japaneseness. In metaphorical or figurative terms, images of the family have been used to build and describe corporate loyalty, educational motivation, and consumption patterns.

Ideology of and about “family” in contemporary Japan links family membership with Japanese citizenship and individual families with the nation-state. These ideologies are made concretely manifest in the koseki system. Being legally registered in a Japanese family is what makes one Japanese. It is the equivalent of having a social security number in the United States.

Family membership is the means and methods to citizenship. In cases of international child custody, this means that the two key identifying terms–citizenship and family membership–are both fraught and heavily overlaid with meaning in Japan. If children are Japanese, they are members of a Japanese family, and therefore have rights and duties that come with that. Although there are many personal, structural, and legal reasons why it is difficult to untangle international child custody disputes, the Japanese legal construction of citizenship deriving from family membership fundamentally colors the patterns in this context.

These patterns and structures that affect international child custody disputes in Japan are far from static. Indeed, contemporary Japanese society is changing very rapidly and media coverage and private conversations regularly discuss evidence of these changes. With almost two decades of recession and major demographic shifts, including the falling birthrate, rising age at marriage, and rapidly aging population, have compelled substantive Japanese societal change. Further, the rising divorce rate and decrease in so-called “life-time employment” for white-collar men mean that although social norms remain powerful more people are having experiences outside the mainstream.

Allison Alexy is Assistant Professor in the Department of Anthropology and Sociology at Lafayette College. Her teaching and research focus on family lives, intimacy, and social change in contemporary Japan. Professor Alexy is the co-editor (with Richard Ronald) of Home and Family in Contemporary Japan: Continuity and Transformation (Routledge 2011) and is currently finishing a manuscript entitled Intimate Separations: Divorce and its Reverberations in Contemporary Japan. Professor Alexy received a BA double concentrating in Anthropology and Sociology from the University of Chicago, and a PhD in Anthropology from Yale University.

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