“We have consulted our wishes rather than our reason
in the indulgence of an idea of accommodation.”
General Nathanael Greene, Revolutionary War Hero
commenting on the futility of appeasement with
King George III of England during the American Revolution
After he and his wife separated, Tommy wondered just how he was going to extricate himself from their loveless marriage. Initial attempts to “come to some sort of agreement” looked increasingly futile. Prior to breaking up, they had planned to stay together until Livy graduated from kindergarten, and then set up separate residences nearby one another so that they could share in Livy’s upbringing. It was to be a more or less “amicable” divorce at first. However, when certain “revelations” came to light as what was really going on when his wife was supposedly “visiting friends,” Tommy lost it and kicked her out of the house. “Get the fuck out of my house!” were, in fact, the actual words he used to end their cohabitation a year ahead of schedule.
After the separation, there began a brief period of limbo in which an uncertain future lay ahead. That period ended a few months later upon receipt of the suit for divorce, followed by a mandatory period of “mediation” by the family court. The divorce still could have been worked out more or less amicably, despite the bitterness and resentment the two felt. In Japan, a divorce can be attained simply by going to the local ward office and filing a form. But this was not going to happen, and a long and costly road was to stretch out ahead lasting almost three years.
After hiring an attorney, the first step in the arcane Japanese divorce process was mediation. Tommy fully expected that the two parties would sit at a table accompanied by their lawyers to try to arrive at a mutually acceptable way out of the marriage. His first surprise was to learn that he and his soon-to-be ex were not to face each other this way, but instead would meet with the two mediators individually, each in turn. The results of any conversations or demands by each party would then be laboriously relayed to the other through these third party intermediaries – in other words, “the Japanese way”. Nevertheless, Tommy thought that eventually the details could somehow be hammered out in this ludicrous fashion. What alternative was there really than to play the game through this irrational process. It wasn’t until one of the mediators actually told him straight to his face that he could never expect to receive legal custody of his daughter because he “wasn’t Japanese and didn’t have a kosseki (family registry)” that Tommy realized he was well and truly fucked. He was playing this card game against a marked deck, and at this moment he knew that he was never going to win. The best he could hope for was to wear out his adversary and hope to extract whatever meaningful concessions he could manage. That is, if the process didn’t ruin him first.
The next surprise in store for Tommy was learning that in Japan, unlike in the other G-7 countries, kyoudou shinken (joint custody) did not exist. Children born of a marriage are treated as chattel, to be awarded completely to one party or the other. The victorious parent in the divorce proceedings receives exclusive parental rights while the loser is stripped entirely of those rights and becomes, in essence, a non-parent, with no more parental rights than a perfect stranger. The parent who wins in a divorce dispute, then, retains all legal rights with respect to any and all decisions regarding the child’s life. In truth, parental rights in Japan can be divided into shinken (legal custody) and kango ken(physical custody). Realizing he would surely lose legal custody, Tommy during the mediation suggested bifurcating the matter, giving his wife physical custody while he retained legal custody so that he could maintain contact with Livy. The mediators quickly shot that idea down – dishonestly told him it was impossible — and Tommy was left with only one option for staying in his daughter’s life – an enforceable visitation arrangement.
That was his next surprise. While the non-custodial parent can be made to pay child support by law, no provisions for enforceable visitation existed in Japanese statutes. After the farcical mediation phase had broken down, Tommy was told during regular court proceedings that the two issues – child support and visitation – were “separate matters,” and while the court could enforce child support, it could not do anything to compel regular visitation if the prevailing party – the parental rights holder – did not allow it. The only hope he had now was to refuse to permit to the divorce and hope that his ex would eventually, voluntarily provide a legally binding contract with regard to visitation that could actually be enforced in the courts.
Frustrated that Tommy continued to insist on regular, enforceable visitation, however, his mother’s daughter – the term he now used to refer to his soon-to-be ex-wife – got her back up and would only grant visitation “as long as the child did not object.” After nearly three years in the divorce process, it got to the point where the judge was about to render a decision, and Tommy was advised in no uncertain terms that that decision would not – could not legally – provide any enforceable mechanism to ensure that Tommy could maintain contact with his kid. In other words, he was faced with accepting a flawed “agreement” with a loophole so large that a shinkansen could drive through or get no agreement at all.
Nothing Tommy could have done throughout the whole circus, he eventually came to accept, would have changed the outcome. His loss was preordained from the start, and the war of attrition he hoped would somehow compel a sensible parental rights agreement was ultimately a failed and vainglorious attempt, although he had no other course but to pursue it. And so, after three years of exhausting and in the end fruitless “negotiations” with an intractable adversary, Tommy ultimately signed an agreement that was no more substantial than the gossamer of his middle-aged dreams. Tommy signed the sham of an agreement and never saw his daughter again.
tony-and-liliana-delvecchio.com 