The custody battle between Brazil and the USA: no stranger to Japan

The custody battle between Brazil and the USA: no stranger to Japan (Newsweek Japan, June 10, 2009, Akihiko Reizei)

 Last week, in my home state of New Jersey, a man returned from Brazil and held an angry press conference. The man’s name was David Goldman, and he was trying to get his only son back who was living in Brazil, but was unable to do so. Mr. Goldman’s wife, who is Brazilian, left him in the U.S. when their son, Sean, now 8, was 4 years old, saying, “I’m going home to my parents.

 Soon after, Mr. Goldman received a call from Brazil, where his wife said, “Our marriage is over. I will raise Sean myself. I will not allow you to see Sean unless you sign a document relinquishing your parental rights,” he was told. Sean’s mother had divorced Mr. Goldman according to Brazilian law and married another man, who unfortunately died while delivering the child. Mr. Goldman appealed to the Brazilian Supreme Court to have his child returned to him, saying that he should have custody of Sean because he was the only blood relative to him, but the court refused to accept his appeal. Sean is now being raised in Brazil by a man from his mother’s second marriage.

 This issue has been widely covered by the media and has attracted attention as an “abduction” case. It has also become a political issue through a congressman who supports Mr. Goldman, and the State Department has taken it up as a serious issue. In order to solve this problem, there is even a movement to impose tariffs and economic sanctions on trade with Brazil, and I think that is how seriously American society is taking this issue.

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 This problem is actually not unrelated to Japan. When international marriages unfortunately take the form of divorce, there are quite a few cases where the children are taken back to Japan before the U.S. court confirms which party (or both parties) has custody. The U.S. State Department is very nervous about this issue, and if handled incorrectly, it could become a national issue like the one with Brazil. Complicating the issue is the international legal framework. Brazil has ratified the Hague Convention on the Protection of Children from Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In Brazil’s case, the country has ratified this treaty, and even though it is a party to the Hague Convention, it has decided not to return Sean to Brazil, giving priority to domestic law.

 In the case of Japan, however, the country has not ratified the Convention. Moreover, of all the countries that have not ratified the treaty, Japan has the most cases from the perspective of the United States. It seems that Canada has been receiving similar complaints through diplomatic channels. So, if the issue of Sean from Brazil becomes more interesting in the U.S., and it becomes widely known that we have many problems with Japan, and as a result, the American parents use politicians, etc., it has the potential to cause a lot of trouble.

 So why has Japan not ratified the Hague Convention, and why are there so many custody disputes between Japan and the U.S. (said to be over 100), is because there is a huge difference in social customs between Japan and the Hague Convention countries. To put it simply, in Japan, (1) when parents divorce, custody goes to one of them and there is no system of joint custody. (2) There is a strong notion that children are to be raised by their mothers, making it difficult for fathers to gain custody. (3) The parent who does not have custody has the right to request visitation, but the penalties for not allowing the parent who does have custody to see the parent who does not have custody are weak. (4) If the non-custodial parent remarries, there is a practice of not having or allowing visitation with the child afterwards, to a greater or lesser extent. This is not in the spirit of the Hague Convention.

 I am opposed to passively deciding such sensitive human issues at the mercy of “external pressure”. If this is the case, then where is the self-respect of people and society? This issue is similar to that of the Organ Transplant Law, which had to be amended as a result of the WHO’s proposed guidelines to refrain from travel transplants, but it is even more complicated than the Organ Transplant Law. This is because issues such as the introduction of joint custody (to put it bluntly, it is a system where a child moves back and forth between the father’s house and the mother’s house at regular intervals) and penalties for violating visitation rights (in Europe and the United States, not allowing a child to see his or her father is considered kidnapping and can result in the loss of parental rights) require amendments to a wide range of related laws. So it is a very difficult issue.

 Therefore, although it is a very difficult issue, I think it is necessary to bring the issue of relationship with parents after divorce closer to the global standard as a part of changing the view of life and family in a positive manner rather than a passive one, or as a measure to reduce the birthrate. In addition, I think it is necessary for Japan to ratify the Hague Convention and avoid diplomatic problems with the United States and Canada. From this point of view, Sean’s problem is not a stranger to Japan.

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