Lost in a Loophole

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.”

Thomas, who came to Japan with his Japanese wife in 1988, blamed friction with his in-laws--who moved in after the birth of his child--for the tension in his marriage. One evening in November 1992, he returned from work to find his wife and child gone, the house locked up and his things on the front doorstep. He was allowed to see Graham a few more times before his wife broke off contact.

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Foreigners are particularly vulnerable in child custody battles. In several cases, distraught parents have discovered that they unknowingly signed documents written in Japanese granting their spouses a divorce or transferring the guardianship of their children to spouses, grandparents or others.

When Thomas hired an attorney to fight for custody of his child, his wife, Mikako, produced a document transferring the guardianship of his son to her parents. It was signed with his hanko, a seal that is used in Japan in lieu of a signature.

Thomas successfully challenged the guardianship transfer in court, arguing that his hanko had been used without his knowledge. But this summer, a district court granted his wife a divorce and full custody of their son. He has appealed that decision.

He is also living on borrowed time. Like many foreigners, he entered Japan with a spouse visa, which must be renewed every three years. His wife refused to sponsor him when his visa expired in 1994, forcing him to stay in Japan illegally to continue his court battle.

Mikako could not be located. But her sister, Mariko, who was interviewed by phone, said that the marriage was a mistake and that Graham was much better off living with his mother. Mikako’s mother, Toya Takezawa, also contacted by phone, said joint custody is an unrealistic notion in Japan. “I don’t think the American way is the best way,” she said.

In Japan’s historically non-litigious society, the family court is designed to provide ways for problems to be resolved amicably, with the help of a court-appointed mediator. Attorneys said there is no legal mechanism to award joint custody of children, but the noncustodial parent may be given visitation rights.

Japan is one of a handful of developed countries that has not signed the 1980 Hague Convention on the Civil Aspects of Child Abduction, which establishes legal remedies to ensure that a child taken to or hidden in another country will be returned to the country of primary residence. The U.S. and 41 other countries have signed the agreement.

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Kunio Koide, a Japanese Foreign Ministry official, said his government does not see the need for signing the treaty because Japan’s Protection of Personal Liberties Act prevents an individual from being illegally restrained. But Koide acknowledged that it would be difficult to prosecute a parent under that act.

U.S. Consul General Wayne Griffith said the Clinton administration has urged the Japanese government to sign the Hague convention. Unless a country is a Hague signatory, the United States can do little to help parents caught in a custody battle.

The U.S. Embassy will conduct a child welfare check if the custodial parent agrees. In that case, a consular official will meet the parent and child, usually in neutral territory such as a hotel or park, and report back to the aggrieved spouse.

Still, many angry parents don’t think the U.S. government tries hard enough.

Since Charles Talley’s wife, Yumi, and daughter, Lea, disappeared from their Palmdale apartment three years ago, he has sent letters to the State Department, the U.S. Embassy in Tokyo and California politicians seeking help.

A consular officer met with Talley’s estranged wife and child in a hotel in western Japan and sent the California man a letter stating that Lea appeared healthy and happy. But a frustrated Talley said the information was of little value, since the U.S. official did not visit his daughter’s home and got most of the information from his estranged wife, whom he later divorced.

When reached by phone in Japan, Yumi said she will never return Lea to her ex-husband, whom she accused in court papers of physical abuse. “I’m very scared,” she said, requesting that her location be kept secret.

Talley, who has custody of his two sons, Robert and Ellis, from a previous marriage, vehemently denies the abuse charges. He said he wants Yumi to come back to the U.S. and face him in court, where she has been charged with parental child abduction.

Like many parents in similar straits, Talley admits to having toyed with the idea of kidnapping his child back. “Every book I’ve read on re-abduction says it’s not good for the child,” he said. “I’m not for that. But sometimes, I’d like to threaten that.”

Dale Martin, a British citizen, has spent countless hours and thousands of dollars trying to get access to his 4-year-old daughter, Lina, allegedly kidnapped by his wife, Tamie Kakuta, in 1992. Tamie could not be reached for this story.

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Martin, a former travel industry executive who lives in Tokyo, claims his wife tricked him into signing a divorce agreement. He took his case to family court and after 11 months of negotiations, his wife signed a court-approved agreement giving him visitation twice a month.

That arrangement worked pretty well, Martin said, until he asked to see Lina more often. In April of this year, a frustrated Martin kept his daughter overnight against Tamie’s wishes. After that, his angry ex-wife cut off all contact. When Martin went to the police with a copy of his court-approved visitation agreement, they told him it was a voluntary arrangement and they could not intervene.

Martin has refused to give up, going back to family court to renegotiate the visitation agreement and filing a separate civil claim requesting damages for mental distress.

While Martin hopes to return to England, he said he won’t leave Japan until he is assured of seeing his child regularly. Meanwhile, he is supporting himself by teaching English and looking for a new attorney. His first one quit, after telling him the case was hopeless.

* Makiko Inoue of the Times’ Tokyo bureau contributed to this article.