Notes on the Issue of Child Custody
- Recently, as a number of international marriages has increased, there have been cases in which one parent, whose marriage has faced a difficulty and who has a different nationality from his/her spouse, takes his/her child back to his/her home country against the law of country of residence. Such cases have raised concern, and the following points regarding the child custody issue should be noted.
Q. What is the issue of child custody?
According to the U.S. and Canadian laws, taking of a child by one parent without consent of his/her spouse is considered to be a serious crime (abduction of one’s true child) when both parents have custody (parental right)1. For example, if a Japanese parent living in Canada takes his/her child back to Japan without consent of his/her spouse, he/she breaches the Canadian criminal law even if that parent is the true father or mother of the child. When such a parent reenters Canada, he/she could be charged with a crime (there actually have been cases where parents are accused of committing a crime). It is necessary to be aware of such laws when one marries a non-Japanese and takes a child that one has with the non-Japanese spouse back to Japan.
Q. What is the Hague Convention (Convention on the Civil Aspects of International Child Abduction)?
In 1980, the Convention on the Civil Aspects of International Child Abduction was adopted in order to prevent illegal and transnational abduction of children (As of September 2008, there are 81 signatory countries). Japan has started considering the possibility of entering the Hague Convention. A signatory country of the Convention is obliged to make an effort (unless there is an exception stated under the Convention) to have an abducted child promptly returned to the countries where he/she was originally living in, based on a claim made by a parent whose child was taken away illegally. After the child’s return, a dispute over the custody of the child between the parents will be determined at a court in the country that the child was originally living in. As a result, since the Convention sets the rules concerning the return of a child who is abducted illegally, a child, who is brought to Japan according to the laws and procedures of a country that the child was living in, will not be forced to return to that country.
In the United States, taking a child abroad without consent of his/her spouse who has custody may be accounted to criminal liability (Please see the National District Attorneys Association). In fact, there are cases in which parent taking a child was arrested of child abduction when he/she reentered the United States, or that parent was placed on the international wanted list of International Criminal Police Organization (ICPO). To prevent Japanese citizens from such disadvantages, the Embassy of Japan and the Consulates General are checking verbally to confirm the existence of agreement of both parents on the application for child’s passport, even if there is no declaration of disagreement from one parent.
In Canada, kidnapping of a child under 14 years old is sentenced to penalty of 10 years or less imprisonment (Sections 282 and 283, the Criminal Code of Canada). In the United States, kidnapping of a child under 16 years old is either subject to pay a fine or sentenced to penalty of 3 years or less imprisonment (or both) (Federal Law Title 18, Chapter 55, Section 1204). Some state laws prescribe rules that are different from the Federal Law. Please refer to the website of National District Attorneys Association (http://www.ndaa.org/pdf/parental_kidnapping.pdf (PDF)) for the details of state laws.