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  • Wiegert Case of child custody awarded to NJ: In 1984! A precedent, anyway.

    Posted by Dr. ARUDOU, Debito on October 9th, 2009

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    Hi Blog.  I received this yesterday, and am forwarding this with permission, from a person by the name of James Wiegert, who tells his story of how he received custody of his then 8-year-old son from a Japanese court a quarter century ago as a NJ.

    He points out a number of mitigators — the clear and present unreasonableness of the mother (who first said he could have custody and then took it back), his gainful employment in a major company in Japan (and generous offer of a settlement to her), and the fact the son could only have US citizenship (i.e. could only have the citizenship of the father, which was the law at the time),

    His wife did receive visitation rights, which Mr Wiegert allowed to be enforced.

    Although this case is to me the exception that proves the rule (even he says he’s not sure why he was granted custody), there is indeed a legal precedent for allowing NJ to get custody in court.  I hope that NJ parents in proceedings can cite this in order to tip the overwhelming one-sided judicial scales a little more in their favor.  Arudou Debito in Sapporo

    =================================

    Dear Debito san,

    In your Japan Times article of 7 October ‘Savoie case shines spotlight on Japan’s “disappeared dads”‘ you said that you’d never heard of a non-Japanese man being granted custody of a child born to him and his Japanese wife by Japanese courts.

    Well, now you have.

    When my Japanese wife of nine years and I divorced in 1984, officials of the Tokyo Family Court gave me- a Caucasian of US citizenship who was then 41 years old, had lived in Japan for 14 years and spoke Japanese well enough to converse with court officials in Japanese- custody of our eight-year-old son, H.

    I was given full legal custody and my former wife once monthly visiting rights.

    She lived in Hitachi City in Ibaraki Prefecture where the three us had lived as a family before I moved to Tokyo. She filed suit against me in the Family Court in Mito City, the capital of Ibaraki Prefecture, I think it was. Officials of the Tokyo Family Court adjudicated because H was living with me in Tokyo at the time.

    I prepared for the court proceedings as best I could and apparently said what I should’ve said because I was given custody of H, but I don’t know why I was, not really. (When I’d been notified that my wife had filed suit against me, I went to the Tokyo Family Court to ask about proceedings there and how to prepare for them, and I consulted a lawyer.)

    Some facts mitigated in her favor, and some in mine.

    My wife had Japanese citizenship, which was in her favor.

    Our son was born at a time when Japanese law specified that children born of marriages where only one parent was of Japanese nationality had to take the nationality of the father, which meant that H had US citizenship, which, perhaps, was in my favor.

    My wife had agreed to my taking custody of H and then disagreed with my doing so. Therefore, I took H to Tokyo against my wife’s wishes on a visit to Hitachi City when she was at a neighbor’s house. When I telephoned her from Tokyo to tell her what I’d done, she complained but never came after him, which, probably went against her.

    Immediately after taking H to Tokyo, I enrolled him in the local elementary school. I took time off from work to attend PTA meetings and was even elected one of three parents from among those of the children in H’s class at the time to represent the others at school-wide PTA meetings, all of which was in my favor.

    I was working as an editor of English language publications at the head office of the then Fuji Electric Company, Ltd.- now Fuji Electric Holdings Company, Ltd. Since that company, and companies related to it like Fujitsu Ltd., is well known, working there was probably in my favor. (My wife was working but I was making more money than she was.)

    I agreed to pay my wife one million yen, even after I was given custody of H, and even though I had to cash a life insurance policy to do it, to clear the air, so to speak. That worked in my favor because I wasn’t required to do it. (During the year my wife and I were separated and before we divorced, I’d paid her expenses for once monthly visits to Tokyo to see H and had agreed to pay all his expenses for his visits to Hitachi City to see her after the divorce.)

    The panel of three court officials who heard my and my wife’s versions of events was composed of two men and one woman. For her own reasons- which I can only guess at- the woman voiced very vocal support for me. When I said that I regularly attended PTA meetings and had even been elected to represent the parents of the children in H’s class at school-wide PTA meetings, she held me up as a model to the two men on the panel. They looked browbeaten, which I think helped me, though it was the judge who sat in on the final of the three meetings my wife and I had with court officials who decided I’d be given custody of H.

    Also, during the year of monthly visits in Tokyo preceding our divorce, my wife never once spoke directly to me. When I spoke to her, she always said: ‘H, tell your father that …’ That put such pressure on H that I eventually refused further meetings, which is why my wife filed suit against me. The woman on the panel of court officials castigated my wife severely for speaking through H as she’d done, which worked very much in my favor.

    The lawyer I consulted before Tokyo Family Court proceedings began told me that ‘Court officials will want to know that your son is well taken care of. Convince them that you can do better than she- your wife- can, and you’ll get custody. Fail to do so, and you won’t.’ So, I brought every question asked me and every answer given back to the same question: ‘What about my son?’ And, while I don’t know how much that helped, I think it did indeed help at least a little. At any rate I was given custody, after which my son and I continued to live in Tokyo where I raised him as a single parent while working at Fuji Electric Company, Ltd. (I say ‘I raised him,’ but no one raises a child alone. Friends I made among the parents at H’s school and other neighbors helped out when either H or I were sick, or I had to work late, and my mother came to visit during school summer holidays or H visited with her in the US.)

    H and I left Japan together in the summer of 1998 when he was 24 years old. He lives in Maryland in the US now, and keeps in touch with me over the telephone, and with his mother too. She still lives in Hitachi City in Japan. I live in Malta. (My Japan interlude was from the summer of 1970 to the summer of 1998.)

    I had permanent residence and, so, could’ve stayed but decided that since H wanted to leave, I’d leave too, even though I knew he wanted to go to the US and I didn’t.

    (I lived in Japan for twenty-some-odd years before immigration officials decided I could finally be trusted, as it were, with permanent residence, and even then I needed a guarantor. Which is to say I could be trusted, but I couldn’t, not really. Which disappointed me- really- so I left. Not that there weren’t other reasons for leaving, but that was one of the major ones.

    (I very much miss Japanese friends and foods. Of course, I can keep in touch with friends over the internet, but foods … I would love a meal of shimesaba no sashimi, akadashi and nukatsuke no oshinko right now, but I’d have to return to Japan for that. Perhaps for a visit someday …)

    Sincerely,
    James Wiegert

    ENDS

    6 Responses to “Wiegert Case of child custody awarded to NJ: In 1984! A precedent, anyway.”

    1. tony Says:

      An exceptional case, and it sounds like Mr Wiegert is an exceptional man too.

    2. Eric Kalmus Says:

      Brilliant !!! It sure would be nice if that law still existed.

      ” When my Japanese wife of nine years and I divorced in 1984, officials of the Tokyo Family Court gave me- a Caucasian of US citizenship who was then 41 years old, had lived in Japan for 14 years and spoke Japanese well enough to converse with court officials in Japanese- custody of our eight-year-old son, H.”

    3. Justin Says:

      I wonder if the situation hasn’t gotten worse for gaijin dads since then, since the kid can now have his mother’s citizenship.

    4. M&M Says:

      This July 2009 interview with PM Hatoyama offers his view and that of the DPJ on the topic. His action or inaction will obviously speak louder than a pre-election interview – but I think it is cause for some optimism.

      http://japantherald.blogspot.com/2009/07/yukio-hatoyama-interview.html

      In summary, he supports changes to the current system and signature of the Hague Convention.
      If it has already been linked on this site somewhere else then my apologies!

    5. How would child custody laws work in this case? | Parenting Advice and Custody Tips Says:

      […] debito.org » Blog Archive » Wiegert Case of child custody awarded … […]

    6. Joe Says:

      I think we have finally found the “poster child” for reform that we can all get behind:
      http://edition.cnn.com/2009/WORLD/asiapcf/10/13/japan.us.custody.battles/

      By Kyung Lah CNN, downloaded October 13, 2009

      OKAZAKI, Japan (CNN) — At Spencer Morrey’s home, there are two constant sounds: His dad, Craig, murmuring, “You’re okay, Spence. You’re okay, buddy,” and the sound of a machine clearing the toddler’s airway.

      Spencer Morrey, pictured with his father Craig, has severe cerebral palsy and requires 24-hour medical care.

      Both sounds come every few minutes, in between hugs, tears and kisses.

      Spencer has severe cerebral palsy and requires constant, 24-hour medical care.

      In Japan, a country that lacks sufficient medical services for disabled children, the only person to care for Spencer is his father. Morrey says his wife left, overwhelmed by the strain of their son’s medical condition.

      That would be pain beyond what most parents could imagine. But Spencer’s mother fled while pregnant with Morrey’s daughter, Amelia. In more than a year, Morrey says he has only seen his daughter four times.

      “She wouldn’t recognize me,” Morrey said, with Spencer propped on his lap. “She wouldn’t call me daddy. She’s just starting to talk now. But she’s not going to know who I am. I think she deserves my love. And I think she deserves to be with Spencer and Spencer deserves to be with her.”

      Morrey, a native of Chicago and a U.S. citizen, was married to a Japanese woman with Brazilian citizenship. They divorced in a Japanese court.

      Under U.S. law, Morrey would likely have joint custody of both children, and Brazil has already recognized him as the joint custodian of the children.

      But in Japan, where only one parent gets custody of a child in a divorce, the family courts have left the case in legal limbo for a year because they have not decided which parent legally has custody of the children. Typically, the parent with physical custody of a child retains custody.

      Morrey has stayed in Japan the last year, trying to get the courts to recognize that he has joint custody of the children in Brazil (he has not yet applied for such custody under U.S. law).

      He is afraid that if he heads home for the U.S. with Spencer without that, he could be subject to international child abduction laws, and he also fears such a move could hurt his chances of getting the Japanese family court to give him joint custody of his daughter.

      Morrey has been forced to quit work to care for Spencer. The financial strain of living off his credit cards is adding to the stress of caring for a disabled child alone in a foreign country.

      Despite his pleading with court mediators and repeated court filings claiming that joint custody is the law in both the U.S. and Brazil, Japan’s slow and antiquated family courts have let the case languish.

      “Kids need both parents,” Morrey said. “Whether the parents are married or not is irrelevant in my mind. The Japanese courts, and I realize you’re going against years and years of cultural differences and everything else, but they don’t care about the welfare of the child.

      “In Japan, it’s considered too messy. It’s too complicated. It deals with personal feelings so they don’t want to deal with it. So the best way is to not deal with it.”

      CNN contacted Morrey’s ex-wife four times by telephone and once by fax. She declined to discuss the case.

      The International Association for Parent and Child Reunion believes there are an estimated 100 American families in situations like Morrey’s in Japan and dozens involving those from Britain, France and Canada.

      One of those cases is that of American Christopher Savoie.

      Savoie, 38, a Tennessee native and naturalized Japanese citizen, was arrested on September 28 in Yanagawa, Japan, for attempting to abduct his two children, eight-year-old Isaac and six-year-old Rebecca. Watch more about this case »

      Savoie drove his children to the nearest U.S. consulate in the city of Fukuoka to try and obtain passports for them.

      Steps away from the front of the consulate, Japanese police arrested him. Savoie is now in jail, awaiting a decision by prosecutors on a possible indictment.

      Savoie and his first wife, Noriko Savoie, were married for 14 years before their bitter divorce in January. According to court documents, she fled with the children to Japan in the summer. A U.S. court then gave Christopher Savoie sole custody of the children.

      But Japanese law recognizes Noriko Savoie as the sole custodian, despite the U.S. order.

      “It’s like a black hole,” Morrey said. “If you go through a divorce, there’s this joke. If you have an international marriage with a Japanese, don’t piss them off because you’ll never see your kids again.”

      Not seeing his daughter Amelia again is what is keeping Morrey in Japan. He has been selling off everything he owns, trying to keep himself and Spencer afloat, hoping the Japanese court will bring him some legal connection to his child. He is stuck choosing between caring for his son, who needs the better resources of the U.S., and hoping to be a father to his daughter.

      “How do you make that choice? It’s not — once you’re a dad, you’re always a dad.”
      ENDS

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