Ask a Divorce Lawyer: International divorce and the Hague Convention

Question: My wife and I have been married for 14 years and have two children ages 12 and 8. Our marriage fell apart when she had an affair 5 years ago (I still have the supporting emails) and it’s reached a point where I simply cannot live with the woman anymore. She has an eating disorder and has been violent with my kids, who live in fear of her. I want to get a divorce and full custody of my kids. 

The problem is we currently live out of the country, my wife is a foreign national, and the country we’re living in hasn’t signed the Hague Convention on international child abduction. I am also worried that even if we returned to the U.S. that she would try and abduct the children back to Japan if I were to initiate divorce proceedings. 

How could I go about initiating divorce and requesting full custody of the children?

Answer: You should speak to an attorney in Japan to learn how to properly file for divorce and receive physical custody of your children.

It is true that Japan is not a party to the Hague Convention on the Civil Aspects of Child Abduction. This is an international agreement between signatory countries to (1) order children wrongfully withheld from their home country, absent affirmative defenses, returned to their home country for their parents to litigate custody there and (2) accommodate international visitation when the parents live in different countries. For the return cases, the principle is, the country where the children established a home (a domicile) should decide the children’s custody, not the country to which one parent wrongfully moved them. However, this is such a basic point that even non-signatory countries, like Japan, follow it. You are more likely to receive physical custody of your children if you live in their home.

In general, the standard to apply for any custody decision is the “best interests of the child” standard. Countries define this standard differently, but there are certain factors and themes. For example, in Michigan, where I practice, family courts must consider the following factors:

(a) The love, affection, and other emotional ties existing between the parties involved and the child.

(b) The capacity and disposition of the parties involved to give the child love, affection and guidance and to continue the education and raising of the child in his or her religion or creed, if any.

(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care. . . .

(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

(e) The permanence . . . of the existing or proposed home or homes.

(f) The moral fitness of the parties involved.

(g) The mental and physical health of the parties involved.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.

(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent of the child and parents.

(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

(l) Any other factor considered by the court to be relevant

One common factor is “health” or “fitness.” This is an amorphous factor that only impacts the decision if it affects the children. For example, a moody mother who is an excellent mother nonetheless will still receive custodial time, whereas a moody mother who lies to the court to alienate her children from their father, who hits her children, etc., will probably receive less. If the parents are equal on all other factors, this may be the dispositive one. Your wife’s behaviors may be dispositive here if you are equal in all other factors.

Another common factor is the “home” factor. To make the divorce process easier for children, who characteristically cannot cope as easily as adults, courts favor the parent in the established custodial environment for physical custody. An established custodial environment is a physical and a psychological place where the children naturally look for comfort, guidance and life’s necessities. From the information you have provided, Japan is likely your children’s established custodial environment.

Therefore, to properly present your case, you should have concrete examples, with witnesses and documents if available, for each allegation you present. 

Please discuss your case with an attorney in Japan for further guidance. I am a Michigan attorney and cannot give you detailed advice about the laws in Japan. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area immediately. Thank you for submitting a question to Cordell & Cordell, P.C.

 

Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.

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