Monday May 28, 2012

DwightVanWinkle's past comments

  • 0

    DwightVanWinkle

    I meant:

    Japan's lack of strong enforcement of court orders is not a justification for exercising Tennessee jurisdiction that does NOT otherwise exist.

    Posted in: American arrested in Fukuoka for kidnapping own kids from ex-wife

  • 0

    DwightVanWinkle

    Igotchu, you're talking the language and strategies of American divorce litigation, which are reflected in the documents you read. The bigger question is whether the Tennessee court should have asserted jurisdiction in the first place. Jurisdictional rules are there for a purpose, and this case is not comparable to cases such as the Wood case. Yes, Japan needs to make reforms - we know that. But Japan's lack of strong enforcement of court orders is not a justification for exercising Tennessee jurisdiction that does otherwise exist.

    Frankly, if I were a Japanese judge, this case would not increase my trust of American courts. I don't think this case helps the cause of urging reforms in Japan, which is a good one. I think it hurts the cause.

    http://www.newschannel5.com/Global/story.asp?S=11250386

    Please stop speculating about the motives and character of the children's parents, because that is not the issue and it only harms the children.

    Posted in: American arrested in Fukuoka for kidnapping own kids from ex-wife

  • 0

    DwightVanWinkle

    Here is the order granting Mr. Savoie full custody. Now, the mother's February 2009 email about "being on the edge of a cliff," which the court previously found was a reflection of the stress of her situation at the time, is now seen as evidence of mental instability. She is also accused of such things as threatening suicide and not getting medical treatment for her son. The father was already asking to be the primary parent before she left for Japan. He apparently thought that this order justified his actions in Japan.

    http://wtvf.images.worldnow.com/images/incoming/Investigates/SavoieOrder.pdf

    Posted in: American arrested in Fukuoka for kidnapping own kids from ex-wife

  • 0

    DwightVanWinkle

    DerekJ, what do you make of a Tennessee court exercising child custody jurisdiction over children that arrived from Japan the day before the divorce action was filed? It seems like Japan would be the home state under the Uniform Child Custody Jurisdiction and Enforcement Act, because the children had been living with their mother in Japan.

    I don't think the money is an issue, except in asking the question of why she needed to come to the U.S. to get a divorce and property settlement which seems fair. I don't see how she can be criticized for that - it's the husband that wanted a divorce so he could remarry.

    I think the Tennessee court may have overstepped its jurisdiction on the child custody issue, and by doing so, created a serious mess. The mother is not responsible for Japan's legal system, and the Tennessee court shouldn't base its jurisdiction just on what might happen in Japan.

    Ultimately, it's not in the children's interests to vilify and criminalize either parent. Mr. Savoie may or may not be a cad. Regardless, he is the father and has a lot to offer his children. The children will most benefit from parents that can work with each other and can travel freely between the U.S. and Japan. I hope the Tennessee court and the Japanese government can wind this mess back.

    Strategic, competetive lawyering, as espoused by one of Mr. Savoie's current lawyers, has failed.

    http://www.international-divorce.com/strategicinternationaldivorce.htm

    "The analogy to a game is not inappropriate. Any serious competitor plays a competitive game strategically. Is the process of divorce any less serious than that?"

    Wrong. Play games with money, but not with children's lives. Analogizing the parenting aspects of divorce to a game is indeed inappropriate.

    Forcing the mother to live in Tennessee under court orders was inherently unstable and unfair to the mother, and should not have been necessary with the kind of cooperative lawyering DerekJ says he did. I can only imagine how difficult it was for the mother and children to be thrown into American divorce litigation, especially with the complication of a new marriage by the husband.

    The Hague Convention is designed to prevent children from being uprooted from their habitual environment. Arguably, that's what the Tennessee court did in asserting child custody jurisdiction. This was not the way to introduce the children to life in the United States.

    Posted in: American arrested in Fukuoka for kidnapping own kids from ex-wife

  • 0

    DwightVanWinkle

    According to this article, the landlord says that Noriko still wanted the marriage to work when she got to Tennessee.

    http://www.tennessean.com/article/20091001/NEWS03/910010361/

    There was a slight language barrier, but Nokiro was friendly, said Daniel Gardner, who rented the Franklin Greens house to Nokiro.

    "I rented the house to Christopher and Nokiro," he said. "She wanted the marriage to work, but he left. She was in the house for a year and two months. The best tenant I ever had. When the police called me for a wellness check, they told me to either open the door for them or they would knock it open."

    Posted in: American arrested in Fukuoka for kidnapping own kids from ex-wife

  • 0

    DwightVanWinkle

    So the Tennessee court said $800,000 was fair, given his assets. That doesn't answer the question of whether she should have had to go to Tennessee to get that, and more importantly, it is irrelevant to the question of whether the Tennessee court had jurisdiction for child custody issues. Problems with the Japanese system are also irrelevant unless the Tennessee court has jurisdiction. This question relates to the very purpose of the Hague Convention - preventing removal of a child from its habitual environment.

    But what if Nashville was the new habitual environment? Whether or not it was fair to make her come to Tennessee for a divorce, the mother did bring the kids there, agreed to the parenting plan, and they had lived there a year.

    There's no easy answers, and we don't know all the facts. We know more than CNN and MSNBC, though. If they are going to make a private matter public, they should be more thorough and balanced. Even then, we'd just be talking about shadows on the wall of a cave. Maybe that's why Japanese TV thinks it shouldn't report on this case.

    Press reports in Japan leave out the names, which is probably a good thing, at least for that society and for those kids. There's lots of comments at Yahoo if you want to see shadow talk in Japanese:

    http://headlines.yahoo.co.jp/hl?a=20090930-00000030-jij-int

    Posted in: American arrested in Fukuoka for kidnapping own kids from ex-wife

  • 0

    DwightVanWinkle

    http://www.international-divorce.com/strategicinternationaldivorce.htm

    "The differences between one divorce jurisdiction and another are far more than the difference between a soccer team playing at home or playing away. It is instead a difference between playing one game at home and a totally different game with totally different rules away.

    "The analogy to a game is not inappropriate. Any serious competitor plays a competitive game strategically. Is the process of divorce any less serious than that?"

    Posted in: American father arrested in Japan had asked Tennessee court for help

  • 0

    DwightVanWinkle

    It's not clear that the Japanese Civil Code doesn't allow joint custody, and 90% of divorces are non-judicial anyway. I wonder if there is more room for crafting enforceable contractual divorces with property settlements and parenting plans than people think. I also think that Japanese culture is changing rapidly and the younger generation is more open to post-divorce co-parenting. A consensual divorce by contract might be more effective and easier on the kids than dragging a mother and kids living in Japan to a foreign court for a parenting plan and property settlement.

    Posted in: American father arrested in Japan had asked Tennessee court for help

  • 0

    DwightVanWinkle

    Japanese people are talking about joint custody.

    http://www.youtube.com/watch?v=iyUR-sKgvzg

    Posted in: American father arrested in Japan had asked Tennessee court for help

  • 0

    DwightVanWinkle

    Tekiru, it's not so much citizenship as which state is the "home state."

    http://en.wikipedia.org/wiki/UniformChildCustodyJurisdictionAndEnforcementAct

    Here's an explanation by Mr. Savoie's lawyer:

    http://www.international-divorce.com/uccjeachildcustody.htm

    Posted in: American arrested in Fukuoka for kidnapping own kids from ex-wife

  • 0

    DwightVanWinkle

    Tekiru, thank you for your insightful comment. Igotchu, you say: "do you think he would have gotten a divorce in Japan when he lived here for 7 years with Noriko, had Japanese law granted visitation rights and enforced those rights, as well as allowed his children to travel to the U.S.?" I agree that the reforms you suggest are necessary, and I can understand why the father wanted a divorce in the U.S. But the state of Japanese law is not the mother's fault, and as Tekiru suggests, it does appear that the mother was under duress - the only way she could get a divorce and money for her and her children was to do it in the U.S. It's not clear to me that Tennessee really should have been the home state for parenting under Tennessee law, and the nation state of habitual residence under the Hague Convention. The kids being U.S. citizens doesn't answer that question, and nor does dissatisfaction with Japanese law. Seeing how this has turned out, I agree with Tekiru that this should have been handled differently. Ultimately, both parents have to act in good faith for each other and the children. It's not clear to me that the father has done that, and not clear that the Tennessee court considered these issues. Forcing a Japanese mother to move to Tennessee to get a divorce was inherently unstable.

    Posted in: American arrested in Fukuoka for kidnapping own kids from ex-wife

  • 0

    DwightVanWinkle

    Laguna, good points, and I basically agree. What bothers me, though, is that his demand for "certain[ty] that his visitation rights would be respected" is something that she personally couldn't give, to his satisfaction, without moving to the U.S. I agree that the solution is for Japan to change its laws, and not just signing the Hague Convention but reforming the domestic family law system. But she can't make that happen. I don't think it's clear that she "wanted the whole enchilada," because moving to the U.S. just for a divorce is a lot to ask. They were married a long time and she had a right to a property settlement. So they are both victims.

    Posted in: American father arrested in Japan had asked Tennessee court for help

  • 0

    DwightVanWinkle

    Actually, if you read the transcript of the hearing at newschannel5.com, the wife went to the U.S. knowing that her husband had a girlfriend, and she was served with divorce papers the day she arrived in June 2008. They had been married 14 years, and it sounds like they had been separated for a year or more, and the judge said that she did not come to Tennessee thinking they would reconcile the marriage. It seems to me that she went to the U.S. because that was the only way to get him to make a property division, and he wasn't going to agree to a divorce in Japan because it wouldn't guarantee him enforceable parenting rights. It's not clear to me that Tennessee should have been the home state for parenting jurisdiction, but I guess both sides agreed to it. If Japan had enforceable family law orders and more openness to joint parenting, it could be the home state without forcing the mother to live in the U.S.

    I'm more sympathetic to the wife, because it can't be easy to move to the U.S. just for a divorce and to deal with a foreign court system, because it's not her fault that Japan's family law system doesn't work well, and because it's not necessarily fair to assume that she wouldn't let him see the children in Japan. Yes, that is the case for many and it is a reasonable fear, but it wasn't necessarily her intent. The husband acknowledges in a video that she said he could see the kids in Japan, but he did not want to be "beholden to the other side" and see them "as long as he is nice." That rubbed me the wrong way, because being nice is a good thing and the legal regime in Japan is not her fault. But still, he has a legitimate interest, leaving the morality of divorce aside as law should.

    It also bothers me that he has made this into such a public case, and it really bothers me that his new wife repeated, on CNN, a grandmother's claim that she was "tortured" by Japanese police.

    He does have a point that his rights in Japan would be very hard to enforce, even for someone with his economic resources and language ability. One can question whether "rights" or "being nice" is the best way to deal with these issues, but there are economic and parenting rights on both sides and Japan has a modern legal system with rights commonly litigated.

    This is a gray case, and I think it is sad and counterproductive for the wife and mother, and now the father, to be turned into criminals. Ultimately, the problem is Japan's weak enforcement regime for family court orders of parenting and property division. But grandstanding won't change that. The father is a Japanese citizen with strong ideas about problems in Japan's legal system, with money, language ability, and apparently plans for law school. Maybe he could make his arguments to a Japanese judge on why the Tennessee order should be enforced or a fair Japanese order of joint parenting put into effect. The father said he would be OK with the kids living in Japan if he had enforceable rights - Japan should make that possible so the kids can benefit from the love and heritages of both parents.

    Posted in: American father arrested in Japan had asked Tennessee court for help

Follow us

Facebook
Twitter

View all