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November 23rd, 2011 by Robert Franklin, Esq.
For the first time in history, a child who was abducted to Japan by a Japanese mother will be returned to the United States.  Read about it here (Milwaukee Journal Sentinel, 11/21/11).

Dr. Moises Garcia is a native of Nicaragua who lives and practices medicine in Milwaukee, Wisconsin.  He was married to Japanese native, Emiko Inoue.  They have a daughter, Karina, who is now nine years old.

When Garcia filed for divorce in February of 2008, Inoue responded by abducting the child to her native Japan, where they’ve been ever since.  Well, almost ever since.

A family court in Wisconsin gave Garcia custody of his daughter after Inoue fled with the girl.  But, as we’ve learned in many cases over the past few years, Japan prefers maternal custody to the paternal kind and effectively provides a safe haven for Japanese mothers who abduct their children to that country.  Japan has never signed the Hague Convention on the Civil Aspects of International Child Abduction, so there’s no international legal requirement that it behave any differently.

Therefore, once she arrived in Japan, Inoue was safe and there was nothing Garcia or anyone else could do to return Karina to his care.

But it seems that Inoue didn’t want to give up her residency status in the United States, so she traveled to Hawaii to establish the requisite time inside this country.  There she was met by U.S. law enforcement officials with a warrant for her arrest on felony charges of interference with a custody order.  She was extradited to Wisconsin and jailed.

Facing over seven years in prison, she agreed to a plea bargain.  She’ll have the charge reduced to a misdemeanor and be released without serving additional time as long as Karina returns to Wisconsin to live permanently with her father.  That needs to happen within 30 days.  If it doesn’t, Emiko Inoue will spend the next seven years in a Wisconsin prison.

Karina has been living with her grandparents (Inoue’s parents) in Japan since her mother’s arrest in Honolulu.

Now, one aspect of the case that caught my eye is this:

Garcia was granted full legal custody in Milwaukee County Circuit Court in 2008. He’s gone further than most people in his situation, said his attorney, James Sakar, and won legal custody from Japanese courts.

An American father got custody from Japanese courts over the claims of a Japanese mother?  That’s never happened before that I’ve heard of, so I asked Sakar about how that came about.

Well, it turns out that the Japanese court was faced with the issue of jurisdiction.  How could it obtain jurisdiction of a custody case without the father’s being present and of which a U.S. court had already taken control and ruled on custody?  Well, however it managed that, the Japanese court ruled that it had “concurrent” jurisdiction with the Milwaukee court.

That placed the court in a box.  Since the Milwaukee court had already given custody to Garcia, the Japanese court was required to honor that ruling, so it did.

That was a huge victory for Garcia, right?  Well, not exactly.  The Japanese court went on to say that, since the child had been with Mom and without Dad for so long, it would not be “in the child’s best interests” for her to be returned to her father.

[Garcia] said Inoue, 43, has brainwashed his daughter and alienated her affections for him during the time in Japan, but he’s confident that if the child comes home, she will be able to get the help she needs to deal with the psychological impact of the ordeal.

As happens so often, Japanese courts ignored parental alienation when it’s done by a mother.  That, according to them is “in the best interests of the child.”

But the Japanese court did give Garcia substantial visitation which he of course couldn’t exercise given the fact that he lives thousands of miles away and has a medical practice to keep up here.  Even if he’d tried to visit Karina, Inoue would have been under no obligation to allow it.

The problem, Sakar… explained, is that the centuries-old Japanese civil legal system does not give those courts any enforcement powers.

In short, Japan’s is a perfect system for mothers who want to abduct their children.  It provides an iron-clad guarantee against fathers having any contact with the children who love and need them.

So far the media are ballyhooing this as a giant step into a new era in which Japan plays more nicely in the game of international child abduction.

If [Karina] makes it, the 9-year-old would be the first of what advocates say are more than 300 children around the U.S. abducted to Japan in violation of American court orders to be returned through legal intervention.

She also could become a poster child for how to solve a growing problem as international marriages increase in the global economy.

Put simply, that’s bunk.  There is absolutely nothing about this case that makes it a solution to the problem of child abduction to Japan.  Karina is coming back to her father (if she is) for one reason only – Mom screwed up.  She thought she could get back into the U.S. for a short time and then light out for the old country again.  She was wrong, and that – and only that – is why she’s in jail in Milwaukee and Karina will be reunited with her father.

If that’s a prescription for handling future such cases, I’m the man in the moon.

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