TOKYO — James Cook wants his four children home in Minnesota. His estranged wife, Hitomi Arimitsu, says they want to stay with her in Japan. And so they have been going around in circles through the courts for almost three years.
If child custody battles are messy, expensive affairs when the parents live in the same country, they’re exponentially more so when the parents live in different countries and are fighting over where the children should live and which place should have jurisdiction.
Japan signed The Hague Abduction Convention, the treaty that governs international child abductions, in 2014 but is struggling to put its provisions into effect.
That is where the Cook family is caught.
“For three years of their lives, these kids have not had their dad. Kids need their dad, they need both their parents,” Cook said via Skype from his home in Minnesota. “I can’t describe to you the hell that this has been.”
Cook, who studied Japanese in college, and Arimitsu, a Japanese woman who attended a university in Minnesota, had lived in the United States for almost the whole time they had been together. But three years ago this week, with their marriage on the rocks, Cook agreed that Arimitsu could take their four children to Japan for the summer — with a notarized agreement that she would bring them back.
When that ended, they agreed that Arimitsu and the children would stay on a little longer, while Cook, who had lost his job, looked for work.
By the end of the year, Cook realized his family wasn’t coming back.
In the past two years, the pair has been going through acrimonious court battles in Osaka and in Minnesota, and each has won some and lost some rounds.
As is common in such cases, they have wildly different versions of events and focus on the rounds they’ve won.
Cook says an order in Minnesota last month, which found Arimitsu in contempt of court and upheld two orders from December that she return the four children to their father, should stand. In that case, the judge awarded Cook temporary sole legal and physical custody of the children.
But Arimitsu, through her lawyer Tomoko Kamikawa, said that because the Osaka High Court in February rejected Cook’s request to have the children returned, there is no valid return order under The Hague Convention. Cook has appealed this ruling to Japan’s Supreme Court.
The children do not want to return to the United States, Kamikawa said.
The crux of the problem, Cook and other “left-behind parents,” say, is that Japan — unlike other signatories — has no way of following through on its Hague commitments.
“Enforcement is one of the key problems,” said John Gomez, an American who heads the Kizuna Child-Parent Reunion group in Tokyo and is helping Cook. “Every country has to create implementation legislation to enforce their orders, but Japan basically cannot enforce their orders.”
The legislation that Japan passed to implement The Hague provision forbids the use of force, and stipulates that the children must be retrieved from the premises of the parent who has taken them. The “taking parent” must be present. The enforcement officers are basically bailiffs who are more used to repossessing washing machines than extracting children from emotionally charged situations.
This essentially means that enforcement involves an official at the gate calling for the children to come out, while the taking parent is inside with them.
“All of this was completely predictable,” said Colin Jones, a law professor at Doshisha University in Kyoto and an expert on child custody law in Japan. “Without dealing with enforcement methods, it was just a matter of time until a case like the Cook case happened.”
The U.S. government has expressed misgivings about Japan’s implementation of The Hague convention provisions. “The [State] Department is concerned about Japan’s ability to quickly and consistently enforce return orders,” it said in its 2017 annual report on international child abductions.
But the Japanese government says that it is making good progress.
“It’s been only three years since Japan entered into The Hague Convention,” said Hajime Ueda, director of The Hague Convention Division in the Foreign Ministry. “It takes time because every case is unique. From that point of view, we have been doing quite a good job.”
Eight children involved in five cases have been returned to the United States since Japan signed The Hague Convention, Ueda said.
The convention was a politically charged issue in Japan, with a substantial amount of opposition to signing it, so even becoming a signatory in 2014 was a major achievement. Experts note that it took other signatories some time to change domestic legislation to allow enforcement of The Hague Convention provisions; Germany, for instance, took about five years.
The U.S. Embassy in Tokyo is dealing with about 70 child abduction cases, 42 of them filed since Japan signed the convention, and 10 of those seeking the return of children to the United States.
The other cases just involve access — another thorny issue in Japan, where there is no concept of joint custody.
The prevailing wisdom in Japan says it is upsetting or disruptive for children to continue to see both parents after a marriage breaks down, so one parent — almost always the mother — gets full custody and the other parent usually has two hours’ access to the children each month.
“Visitation is the most problematic thing with Japan. A lot of cases about return orders are actually about access, about the noncustodial parent being able to maintain a relationship with their child,” said Jones of Doshisha University.
According to Gomez’s research, about 3 million children in Japan have lost access to one parent after divorce in the past 20 years – about 150,000 a year.
Children age out of the system at 16, so time is on the taking parent’s side, according to people involved in custody disputes.
And nothing will change for international custody cases until the domestic system that favors sole custody changes, experts say.
This is difficult because Japan has a family registry system, which operates as the foundation for all documentation. A person can be on only one family registry so after a divorce, children are usually removed from their father’s family registry and placed on their mother’s.
“The parent who becomes noncustodial loses all of their parental rights and effectively becomes a stranger to the child,” said Bruce Gherbetti, another “left-behind” parent who is advocating for change through the Kizuna group.
Until joint custody becomes commonplace in Japan, it will be difficult, if not impossible, to make it the norm in international cases, Gherbetti said.
For now, that leaves Cook, who has found work with a medical device company, sitting in Minnesota, having no contact with his children.
“I’m sad we are in this mess and I’m concerned about my children,” he said. “This is the heartbreak of being a ‘left behind.’ ”
An earlier version of this article misspelled the name of Hitomi Arimitsu. The story has been updated.