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Lost in a Loophole

Foreigners Who Are on the Losing End of a Custody Battle in Japan Don't Have Much Recourse

September 19, 1996|EVELYN IRITANI | TIMES STAFF WRITER

TOKYO — When Walter Benda left for work at a Japanese trading company that July morning in 1995, his wife, Yoko, and two daughters accompanied him to the front door and bid him farewell. Unusual, perhaps, but nice. Not the kind of thing a father would object to.

Only when Benda returned that evening and noticed the empty space at the entrance to the apartment, where his family's shoes should have been, did he start to wonder. A piece of paper on the dining room table confirmed his worst suspicions.

"Dear Walter, please forgive me for leaving you this way," read the note from his unhappy Japanese wife. In the frantic days that followed, Benda would be haunted by that seemingly impulsive send-off, the hugs and smiles that would be his last contact with Mari, 6, and Ema, 4.

Benda's unsuccessful efforts to get information from his wife's family and friends, the Japanese police and his children's schools, left him feeling as if he was trapped in a Kafka novel. Since he couldn't speak Japanese, he was forced to rely on sign language or use Japanese friends as interpreters. After months of fruitless searching, his visa expired last November and he was forced to return to his parents' home in Virginia.

Early this year, Benda and Brian Thomas, a Welshman involved in a similar situation, began fighting back. Through an ad in a Tokyo magazine, they have identified about a dozen cases of alleged child abduction by Japanese parents. In most cases, they are Japanese women married to foreigners, but there have also been several incidents involving Japanese men and foreign wives.

The men have established a Japanese chapter of the Childrens Rights Council, a Washington-based organization focused on family issues, stepping up pressure on Japan to sign an international treaty designed to help parents retrieve children who have been unlawfully abducted to another country.

In June, a federal grand jury in Virginia charged Benda's wife with parental child kidnapping, a felony offense that carries a penalty of up to three years in prison or a $250,000 fine. A 1993 federal law makes it a crime to prevent a person from exercising his or her parental rights by removing a child from the United States or keeping a child outside this country.

Yoko, who is living somewhere in Japan, could not be reached for this article. But since Japan does not treat parental child kidnapping as a criminal offense, it is not covered under the U.S.-Japan extradition treaty.

Counselors in Japan have noted an increase in these cases in recent years, which they attribute to the expanding numbers of international marriages and rising divorce rate. The U.S. Embassy in Japan, which provided help in 10 custody cases, has also gotten more calls recently.

As in any domestic dispute, particularly those involving children, these cases are messy and emotional, making it difficult to sort out the victims from the victimizers. Usually, it was not possible for authorities to interview the Japanese spouses, since they had either disappeared or refused to talk. The few who were located said they fled because they wanted to make a better life for themselves and their children and could see no other avenue of escape.

The problem of parental child abduction here is complicated by a tradition of resolving family disputes outside the courts, a strong belief in the mother-child bond, lingering prejudice against foreigners and differing attitudes toward divorce.

When divorces occur, the children generally stay with the mother. Fathers are encouraged to cut off contact with their children in the belief that it is confusing to maintain two sets of families. By making a clean break, divorced parents are able to marry again, lessening the stigma of failure and shame that many Japanese still associate with failed marriages. In several instances of alleged child abduction by Japanese men, the foreign wives were told by their husbands and in-laws that their children should be raised as Japanese, implying that nationality and culture carried more weight than maternal ties, said Benda and others.

Although an increase in divorce has produced more divided families, it is rare for two Japanese parents to dispute custody or fight over their children in the courts. "In Japan, when you get a divorce, it's terrible, it's shameful," said Ken Joseph, director of JapanHelpline, a telephone counseling service. "You want to put that behind you and you don't want anything from the past haunting you all the time."

But to people from countries such as the United States or the United Kingdom, where shared custody is increasingly common, the idea of being forced to give up their children for life is horrifying.

"The reason I'm doing this is for my son to have the right to have access to me," said Thomas, who hasn't seen his 6-year-old son, Graham, for nearly three years. "I love him and I won't abandon him."

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