As readers of this blog well know, Japan has long been a safe haven for Japanese mothers living outside the country who wish to abduct their children. Japan combines a failure to sign the Hague Convention on the Civil Aspects of International Child Abduction with a tradition of almost exclusive maternal custody. That means Japanese mothers who take their children there do so with impunity. Recently, there's been talk of Japan's eventual signing of the Convention, but as I've also reported, some legal scholars there have expressed doubts that much would change if it did. That too is because of the almost overwhelming bias in favor of mothers in custody cases in that country. Now this case
raises some interesting possibilities (Agence France Presse
, 4/16/11). It seems Scott Sawyer, of Los Angeles, has filed a civil suit against Japan Airlines and a so-far-unnamed travel agency for assisting his ex-wife in abducting his children to Japan. The couple were divorced in Los Angeles in 2008 with the mother, Kyoko Sawyer getting primary custody. But the divorce decree confined her to only five counties surrounding Los Angeles County. Travel by her with the child outside those counties could only be done with court permission. But she ignored that order, obtained a passport for the child, went to San Francisco and from there flew, via Japan Airlines, to her home country. Scott Sawyer's attorney, Mark Meuser, says it was all done with the knowledge and acquiescence of the airline and the travel agency.
Scott Sawyer alleges the airline and a US travel agency agency knowingly assisted his ex-wife, Japanese national Kyoko Sawyer, take their son Wayne to Japan in December 2008 when the boy was two years old. "There is a long list of red flags that existed in this case that should have caused the airline and travel agency to do something," lawyer Mark Meuser told AFP on Saturday. The companies were "deliberately turning blind eyes to the known parental kidnapping problem endemic to Japan and the warning signals surrounding this case," Meuser added in a statement.
Yes, that sounds like a stretch. If there's a duty on the part of an airline to monitor international child abduction, I don't know about it, but maybe Meuser does. Otherwise, you can bet the company will move in short order to try to get the case dismissed. We'll see what happens. But if Sawyer is successful, it won't be the first time that a civil suit has led the way to greater safeguards for the rights of Americans. Statutes ranging from civil rights to the safety of consumer products had their genesis in civil suits for damages. Those failed at first, but gradually got traction and, when success came, so did codification of the rights sued for by statute. Commenting on Sawyer's case is this attorney blogging here
At first glance this might seem to be mainly an issue of child custody, rather than of California father's rights. What it spotlights, however, is the uneven enforcement of father's rights, particularly by the travel industry. As many divorced fathers can attest, international travel with one's children is rarely smooth unless the dad is carrying a letter from the child's mother authorizing the trip. Divorced women undertaking similar trips, however, are rarely asked to produce similar documentation.
And that may be where Sawyer gets his foot in the door. After all, it's one thing for a litigant to demand, out of thin air, that an airline enforce laws against international child abduction; that may not fly with the courts. But it's another entirely to ask them to do what they already do, but in a gender-neutral way. It may be that Japan Airlines has already assumed a duty of care when fathers travel with children, so why not when mothers do? Whatever the outcome of this particular suit, it's good to see attorneys thinking outside the box when it comes to fathers' rights.