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  • Another way of stealing children in J marriages: legal adoption

    Posted by Dr. ARUDOU, Debito on September 6th, 2009

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    Hi Blog.  Let’s start inching back towards business as I stay in areas with better internet access. For some reason the most popular article on the JT this morning is one nearly a decade old, one about another loophole in Japanese marriage laws — legal adoption of the children by the grandparents.

    Not the first time I’ve heard of this (I had a friend whom this happened to as well), and it’s definitely not limited to J-NJ marriages, but it’s one more cautionary tale about how the lack of strong family law, coupled with the Koseki system and easy inkan fraud, leads to parents being denied access (or even legal ties to) to their kids in Japan.

    What makes this an NJ issue is that many don’t know the system, or get taken advantage of more easily than native speakers.  And then many spend years stringing along in Japan just trying to see their kids.  The information is no less poignant today.  Excerpt follows.  Arudou Debito in Nagoya

    =============================
    The Japan Times, Sunday, Feb. 6, 2000
    http://search.japantimes.co.jp/cgi-bin/fl20000206a1.html
    The best parents are both parents
    By ANGELA JEFFS
    Sunday, Feb. 6, 2000

    … Then came the even more alarming matter of the “hanko.”

    “My name seal — a present from my father-in-law after Graham’s birth — disappeared,” Thomas recalled. “When it reappeared on my desk, there was a stamped document alongside. My wife said it was a sample adoption paper; her parents had often talked about adopting Graham for tax inheritance purposes. In fact it was the real thing. Graham had been stolen from me behind my back.”

    In November 1992, Thomas came home from work to find his wife had taken Graham and moved in with her sister. At a meeting with the family’s lawyer, the adoption certificate was proclaimed legally binding. “Under Japanese law, I no longer had a son.”

    Thomas hired a lawyer, who worked out an access agreement. Initially this was honored, but returning one night (he was still living in the marital home), he found padlocks and barbed wire in place. Breaking in (“I was too angry to consider repercussions”), he discovered all his possessions had gone. Services were disconnected one by one. Eventually he was barred entry by a “heavy.”

    Initially Thomas moved around Tokyo, sleeping on friends’ floors, spending savings and any income earned from teaching on fighting for justice…

    Rest at http://search.japantimes.co.jp/cgi-bin/fl20000206a1.html

    21 Responses to “Another way of stealing children in J marriages: legal adoption”

    1. Behan Says:

      I have heard that it’s a pretty heavy crime to use someone’s hanko without their consent. Is this true? I would hope that the J spouse and the grandparents would suffer legal repurcussions.

      – They didn’t in the my friend’s case, either. How are you going to prove that it was without your consent when your stamp is there? This is why our HANDBOOK advises everyone to secure their stamps carefully.

    2. john k Says:

      The Hanko system is soooooooo out dated it isn’t funny anymore.

      The land I bought, I do not own it…my bloody stupid Hanko is the owner. Since if someone steals my Hanko, they can do what they like with my land….what utter utter bollocks….but that is the ancient “i don’t believe you until you prove it with a Hanko” system from the days of warlords; whom had such distrust of each other. That is sandwiched between my 2MB download speed on my high-tech mobile phone…..nuff said!!

    3. let`s talk Says:

      Will the new DPJ guys cancel the current hanko system? Will they change the current koseki system? There was nothing about it in their manifesto. But I might have missed it.

    4. Kimpatsu Says:

      I have heard that it’s a pretty heavy crime to use someone’s hanko without their consent.
      No, Behan, it’s a heavy crime to use another JAPANESE person’s Hanko. Gaijin don’t count.

    5. Peter Says:

      Pretty downright suspicious if a father “lets” his children be adopted by his in-laws.. how come the authorities let this happen? Was this father even questioned if this was in fact his wish? which it wasn’t.

      So all it took was for the in-laws and the (ex)wife to go to city hall with this paper, without the father, and say this is what he wants to do? Surely there must be some accountability… or am I just beating a proverbial Dead Horse and the mindset of people here. There has to be more security than just a stamp on a piece of paper, this is ludicrous. Whoever has the stamp has the control?!

      Now that that was said, the main issue again is the loss of children for 1 parent. I think before we start getting hot about the situation in Japan, which we all agree is completely unfair, especially against NJ, this sort of thing happens all over the world. Even in civilized countries like England and Germany (from the article)

      While Japan needs to definately change its ways.. which it probably won’t because it cites “difficulties” in regards to the Hague Convention this is a global issue.. and even countries who are signaories of the Hague Convention, people don’t always experience an easy time with regards to child abduction.

      And lastly, what are Japan’s reasons (excuses?) for not being a signatory of the convention?

    6. Manule Says:

      I wish they show the stupid hanko system to the audiences of NHK’s “cool Japan” and have everybody understand that not everything here is “cool”.

    7. Graham Says:

      There isn’t enough information in the article that can really explain why this family went so far to take away the child. They didn’t want the kid to be raised by an NJ that bad? If so, why were they so friendly at first when the couple got married? Is it all about that inheritance deal? If so, did they feel that shunning the father away from the child forever would be worth it? On what basis? But I guess none of that matters.

      I appreciate that the article shed some light to this problem from different points of view too, namely Japanese having their children taken by NJ spouses.

      > Will the new DPJ guys cancel the current hanko system?
      I think the only thing that can get rid of the hanko system is another GHQ occupation in Japan (heaven forbid). Try convincing to the rest of the country who believes that the signature system is highly insecure because “signatures can easily be forged.”

      I think the best solution is for the country to be able to accept both hankos and signatures, and thankfully it is moving towards that direction, albeit slowly. Switching from one to another would be chaotic, and it would satisfy those who believe hankos are much more secure than signatures, along with those who believe the opposite.

    8. Karl Says:

      Kimpatsu, while I understand your frustration with the things seem to work in Japan sometimes, unless you have a source for that claim all you’re really doing is hurting the cause of NJ rights in Japan.

      But mostly I’m just hoping that what you said isn’t the way things actually are.

    9. HO Says:

      “I have heard that it’s a pretty heavy crime to use someone’s hanko without their consent.”

      The punishment for forging documents by abusing someone else’s hanko is 5 years or less in prison. Abusing a foreigner’s hanko is any less illegal than abusing a Japanese hanko.

      “The Hanko system is soooooooo out dated it isn’t funny anymore.”
      I think hand written signature is just as outdated and prone to forgery as hanko. Japanese law punishes forgery of signature just as well as forgery of hanko.

      “Penal Code
      Article 159 A person who, for the purpose of uttering, counterfeits, with the use of a seal or signature of another, a document or drawing relating to rights, duties or certification of facts or counterfeits a document or drawing relating to rights, duties or certification of facts with the use of a counterfeit seal or signature of another, shall be punished by imprisonment with work for not less than 3 months but not more than 5 years.”

      If you do not want to use a hanko, in most private and public transactions, you can use your signature as long as you can provide the certificate of your signature issued by your embassy.

      – You think “hand written signature is just as … prone to forgery as hanko”? I’m sure handwriting experts would disagree.

      Again, prove “lack of consent” when the inkan mark is there.

    10. Paul Says:

      As an aside here – this case demonstrates that a person should never register a personal seal. Having lived here many years now, I have never failed to accomplish what I needed to do with my signature.

    11. HO Says:

      “prove “lack of consent” when the inkan mark is there.”

      If there is no fingerprint of the applicant on the application form on which the hanko is affixed, the judge may assume lack of consent, I suppose.

      – You suppose. Great. Suppose away. That’ll fix the issue.

    12. Kimpatsu Says:

      Kimpatsu, while I understand your frustration with the things seem to work in Japan sometimes, unless you have a source for that claim all you’re really doing is hurting the cause of NJ rights in Japan.
      But mostly I’m just hoping that what you said isn’t the way things actually are.

      Karl, so how come when some guy in Osaka stole a coworker’s hanko and emptied his bank accounts a few years ago, they threw the book at him? Compare that to the inaction in the “adoption” case, and you’ll see a different standard at work here for the same crime: Criminal code 167, the unauthorized use of personal seals.

    13. Justin Says:

      The article says the adoption was annulled and the wife’s permission to divorce was revoked. The guy now has the legal right to see his son… but he has no way to enforce the family court’s judgement! Great f***ing system, Japan.

    14. Kimberly Says:

      Not much to say on the issue of hanko vs. signature… requiring BOTH on all legal documents would be double-safe…. but thank you Debito for reminding us of this issue. This was heartbreaking to read, but it’s important to remember the very good reasons there are for fighting for gaijin rights, human rights, equal rights in this country and anywhere, really.

    15. HO Says:

      Back in 2002, DPJ sponsored a law to explicitly establish visitation rights in the civil code. Now they have majority in both houses, I think things will change.
      http://www.dpj.or.jp/news/?num=10689

    16. level3 Says:

      I’ve used my signature for 10 years, but have never done any big deal contracts like loans or mortgages or such. Work contracts, bank forms etc. the signature is just fine, and I will never get a hanko.

      If forced to get a hanko, can I just register my own thumbprint as my official seal? (Serious question! Does a hanko have to be a little round hunk of plastic that can be stolen and used by anyone? Can I use my fingerprint?)

      Sorry, but when I see how amazed my Japanese colleagues are with the speed of a gaijin signing their name, I pretty much assume that it also means a Japanese person has little hope of successfully forging an English signature, at last to a gaijin’s eye, and definitely to a trained specialist.

      How about the recent trend to biometric IDs at Japanese ATMs? If the thumbprint becomes ubiquitous, the whole stolen hanko/forged signature problem will be moot right? Though I expect the Japanese bureaucracy [besides the Immigration department] will be dragged kicking and screaming into the 20th, let alone 21st, century of ID verification.
      And should your thumb get stolen, you’ll know immediately (probably) and can report it to the authorities, and also prove to even a racist Japanese judge that your amputated thumb at least raises some doubts as to the authenticity of a contract bearing its mark. (But would the accused thumb-lopper’s Japanese-ness still trump a one-thumbed gaijin’s word in the xenophobic judge’s mind? I think we can already safely assume the Japanese prosecutor would put forth the theory that the gaijin’s shady gaijin mafia friends – all gaijin have shady gaijin mafia friends you know – chopped off his thumb to help him to get out of a contract.)

    17. john k Says:

      HO
      “…I think hand written signature is just as outdated and prone to forgery as hanko. Japanese law punishes forgery of signature just as well as forgery of hanko…”

      So, how does the Hanko prove which is real and which is fake??..the Hanko cannot speak or defend itself! Nor can it show proof of utility bills and bank statements as proof of earnings and residence, nor does a Hanko have a passport….oh, don’t worry about providing evidence of who you are when you buy a Hanko too…and next time you’re stopped by the police, show them you’re little stick…no need for a placky card with numbers!

      Funny, I just go down to my local store..and hey presto..ready made Hankos, wanna buy a Hanko guv??…cheap as chips!!..

    18. Karl Says:

      Kimpatsu, what I’m saying is that it helps to have sources to back up claims of racism and injustice. Before deciding if this is an example of a double-standard in regard to the hankos of foreigners, we’d need more information about both the Osaka case and what ended up happening with in regards to using the hanko in this adoption case (the article is silent about if there was any punishment for the forged hanko.) There may be reasons, as arcane and full of legal BS as they may be, which we don’t have.

      I’m not necessarily saying that you’re wrong (in fact, part of me is afraid that you may be right) I just don’t think making broad claims of racism without facts is productive.

    19. Why So Serious? Says:

      Surely, if someone steals your hanko you should report it to the police at the first available opportunity, as you would if someone stole your wallet, car keys, passport, etc… Yes, a hanko may be slightly more cumbersome, however Japan is not ‘The West’… If you have the police report, shouldn’t this enable you to prevent a viable challenge to any subsequent transactions entered into using your hanko?
      I wonder if anyone has rented a safety deposit box at the bank as a place to keep their hanko?

      – I have.

    20. wascally wabbit Says:

      I’ve always taken measures to keep hankos separate from things like bankbooks and such (in fact,I have a couple of 100yen shop Japanese seals that I leave in the drawer with these on the off-chance that they get stolen and some idiot actually tries using one of them).

      I also use different seals for each bank account – separate from my registered seal. Some of you may not be aware that the seal you use for a bank account does not need to be your registered seal – it can be almost anything, although they do seem to want it to be some reasonable facsimile of your name (but even initials and Romaji work just fine).

      Re: Legally binding contracts and official documents

      I’ve found that anytime I’ve needed to make a contract for official company business or anything binding as an individual, my seal registration is required along with company registration (for business contracts) or foreigner registration certificate (for personal matters). If these documents weren’t submitted along with any alleged legally binding contract or similar document, which would additionally be void of anything written in your hand, one could take legal proceedings to (1) temporarily suspend the efficacy of the document (KARI-SHOBUN, in its various forms) and (2) depending on the circumstances, place the burden of proof on the other party, since they are presumably attempting to assert the validity of a document according them rights over you or your property. Even if the docs are not absolutely required by law for a particular case, in almost all circumstances the law DOES in fact require that the signature AND stamp both be present to be valid (just because Japanese don’t tend to scrawl their names out illegibly like myself doesn’t mean that there is no legal distinction made for your name written in your own hand – hence the words SHOMEI and SHOMEI-OUIN, which basically means you have to SIGN AND STAMP). Of course all the usual caveats apply regarding registering a new hanko as soon as you discover the old one is missing, etc.

      Re: Legal action

      When possible, try to press criminal charges if they apply and if you can show motive, e.g. strong criminal intent to deceive, not (just) you, but the government (always works better when the charge is not necessarily just about you, but rather about fraud and/or a “crime against the state” so to speak) — of course this only works under limited circumstances.

      Not really my field of expertise, but I’ve been tossed around and banged up enough times to figure out that (1) lawyers tend to confine their potential actions to what they think they already know and are rarely willing to investigate all of your legitimate options, and (2) as NJs we’re always on the defense, but your best chance to getting any legal traction is to find at least one issue, however small, that can be shown to be FUHOU-KOUI (unlawful action) as a starting point to getting your foot into the spring-loaded “Justifiably Japanese Only” door before it slams in your face.

      If the other party is in fact dishonest, Japanese or otherwise, there is invariably some fact left unnoticed that can be wrangled into appropriate legal action. Proof of one solid act of impropriety can go a long way to exposing malicious intent, which has the helpful side-effect of begging the court to question assertions that previously went uncontested (based on the legally unassailable principle that all GAI-JIN are natural born liars and criminals — the rest is just a matter of degree…).

      Of course, now this just means that you’re both criminals and the judge is left to choose the lesser of two evils, or it simply obviates the need for any real deliberation at all.

      When it comes to civil cases, judges aren’t really restricted in any way when it comes to the facts they choose to recognize and how they interpret and apply the law. One of their favorite tactics in criminal and civil court is to leave out the parts of your argument that don’t agree with their predisposed judgment and point out quite smugly that the discordant smattering of pieces they chose to include comprises your own ‘original’ interpretation of the law and is without precedent, often without making even a disguised attempt to show or explain why. In the Supreme court, they can choose to leave out your entire argument and say basically that you’re full of it, with the added benefit that the publicly released verdict shows no sign of impropriety – or anything else for that matter except that you lose, perhaps by way of their infamous 3-liner.

      But don’t let that get you down. Persistence is the key and as long as you are an honest person and the other party is not, you’ll always have a chance.

      And one can always take solace in the undeniable fact that at least in criminal court the law discriminates equally against anyone accused of a crime by finding everyone guilty — of course ignoring the fact of even more brashly trumped up charges and harsher penalties for NJs – just because they can.

      A bit of a rant, indeed. Sorry for swerving off-subject…

      ———————————
      “Even Permanent Residents
      are still Permanently Guilty
      of not being Japanese…”

    21. chuckers Says:

      http://edition.cnn.com/2009/WORLD/asiapcf/09/29/japan.father.abduction/

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