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  • AP: US court rules Japan has jurisdiction in child joint custody case

    Posted by arudou debito on December 6th, 2008

    Handbook for Newcomers, Migrants, and Immigrants to Japan\Foreign Residents and Naturalized Citizens Association forming NGO\「ジャパニーズ・オンリー 小樽入浴拒否問題と人種差別」(明石書店)JAPANESE ONLY:  The Otaru Hot Springs Case and Racial Discrimination in Japan

    Hi Blog.  Here’s a bit of astounding news.  Comment follows article.  

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    Nebraska court rules Japan has jurisdiction in child custody case

    OMAHA – The Nebraska Supreme Court has ruled that the state’s courts have no jurisdiction over a custody dispute involving a 6-year-old boy, leaving the issue to a Japanese court.

    In the ruling issued Friday, the court said a Douglas County district judge had no authority to grant joint custody of the boy to his divorced parents, even though the boy was born in Nebraska and had lived here while in the U.S.

    The court determined that under custody law, the child’s residence is considered to be in Japan.

    The boy’s father, Stuart Carter, was stationed with the U.S. Navy in Yokosuka in October 2002, when the boy was about 10 weeks old. When his assignment ended in May 2005, Carter left his wife and took the child back to Nebraska.

    According to court documents, Carter did not tell his wife, Nahoko Hata Carter, that he was going back to the U.S. or that he was taking the boy with him. Within days of arriving in Nebraska, he filed for legal separation and custody of his son.

    Nahoko Hata Carter holds U.S. and Japanese citizenship.

    Her attorney, Susan Koenig, said Friday that Nahoko Hata Carter, who has been living in Nebraska so she can see her son, plans to file a custody petition in Japan. Ideally, Koenig said, the mother would like to move back there with the boy.

    A message left Friday for Stuart Carter’s attorney was not immediately returned.

    The couple married Nov 11, 1994, after Stuart Carter was stationed in Japan. Because of his military duty, they later lived in California, Kansas and Nebraska, where their son was born.

    Koenig said that because they moved back to Japan, the boy’s first language was Japanese and that he had close contact with his mother’s relatives.

    “His whole culture, his whole life has been in Japan, until he was brought (back) here,” she said.

    Koenig said that’s why custody should be determined by a Japanese court. She explained that the boy’s day-care provider, doctors and close family members—all of whom would likely testify at a custody hearing—are there.

    “All the evidence is in Japan,” she said.

    ENDS

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    COMMENT:  We should hope the Japanese courts would be so impartial. But they aren’t. Contrast with the Murray Wood Case, where international children kidnapped from British Columbia (whose courts granted the Canadian father custody) were deemed unremovable from Japan. And are American courts so ignorant to not know (or was Mr Carter’s legal defense so inept to not point out) that Japan does not recognize joint custody, full stop? Mr Carter will not get a fair trial in Japan. No child kidnapped to Japan as of yet has been returned to the NJ parent by a Japanese court.  He’s lost his kid. Full stop.  Debito in Sapporo

    7 Responses to “AP: US court rules Japan has jurisdiction in child joint custody case”

    1. MD Says:

      To be frank, I don’t think there was much that the Court could have done. If they had no jurisdiction by private international law, the had to send the case to Japan.

      The only case I can think of in which a court took jurisdiction because they had no confidence in the legal system of the other country was Cherney v. Deripaska, where a english court refused to send the case to Russia because testimonies came and talked about how corrupted the Russian system is and that no judge would rule against the almighty Oleg Deripaska. It would probably be very difficult to make the same kind of proof in cases involving Japan, but it might be worth trying by showing statistics to the judges, etc.

      http://www.bailii.org/ew/cases/EWHC/Comm/2008/1530.html

      “Taking all those considerations into account, I am persuaded that the risks inherent in a trial in Russia (assassination, arrest on trumped up charges and lack of a fair trial) are sufficient to make England the forum in which the case can most suitably be tried in the interests of both parties and the ends of justice and, accordingly, the proper place for the determination of this claim.”

    2. Doug Says:

      Bit of a tangent from the main point of the article, but…

      “Nahoko Hata Carter holds U.S. and Japanese citizenship”.

      Unless she is a minor, that is under 20 or 21, the age that Japan requires people with dual citizenship to choose one country or another, as far as I know this is illegal (as far as the GOJ goes). Am I right here Debito?

      Doug

      – Right. On the books, Japanese cannot hold dual nationality beyond the age of 22 (twenty being the age of adulthood plus two years’ grace). Of course, it’s not being enforced.

    3. okazakiOm Says:

      But that’s his ex-wife, so we can assume she’s not a minor.

    4. Joe Jones Says:

      Here’s the opinion: http://www.supremecourt.ne.gov/opinions/2008/december/dec5/s08-025.pdf

      Money quote at p. 846: “In this case, there is no allegation that Japan violates fundamental principles of human rights.” Duh. The husband’s lawyer could have made that argument by simple perusal of crnjapan.com. Doesn’t matter if it’s a long shot–still should have tried to work that in.

      The lack of that argument is what torpedoed the husband’s case. After all, assuming the system is equally fair to an American spouse (which was apparently the court’s understanding), hearing the case in Japan makes perfect sense given the location of the parties and evidence.

      The worst part of this is that if Stuart comes back to Japan to argue his case, he might be arrested under the Japanese child abduction statute.

    5. Frodis Says:

      If they grant his petition for legal separation but refuse to hear the case for custody then I suppose it behooves him to just remain in the United States with his child and not grant his (ex)wife visitation rights.

      Since the court won’t hear arguments for custody, there would be little to be done on the mother’s part except to try to remove (kidnap?) the child from the United States and return back to Japan.

      The recourse for her would be to fight him in absentia in the Japanese courts. While they may grant her custody, it seems unlikely that they would try to negotiate his or the child’s extradition back to Japan on her behalf, would they?

      A less than ideal solution perhaps to a less than amicable situation. Would the American courts be likely to compel him to return to Japan with the child to answer custody issues / charges in a court there?

    6. Colin Says:

      Yes, he is guilty for the act he committed. Unfortunately, if the mother returns to Japan with the boy there is good chance the father may never see him again. The judge should have been a little more logical and considered this point in her decision as the Japanese courts will support the father in no way and thus potentially destroy the lives of the father and child. The saddest thing about this story is that countless people are enduring the same situation/fate and nothing has changed. Not enough people know or care enough to do anything about these issues.

    7. Behan Says:

      Koenig said that’s why custody should be determined by a Japanese court. She explained that the boy’s day-care provider, doctors and close family members—all of whom would likely testify at a custody hearing—are there.
      “All the evidence is in Japan,” she said
      ————————————————————–
      A Japanese court wouldn’t determine anything other than automatically award the child to the Japanese parent. It would be decided before it even started.
      The Nebraska Supreme Court’s decision flies in the face of reality. It’s lke the Nebraska Supreme Court is teaming up with Japanese courts to work against non-Japanese parents.

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