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“Sleeplessness comes when my thoughts outweigh the night.”
― Terri Guillemets

                  Tommy stared off once again into the darkness, the silence of the night defeaning in its intensity. And he knew that once again the fight to attain sleep, to gratefully fall into the arms of Morpheus, had begun anew.

                  It was at these times that he knew there was no respite from the insistence of memory, that the clarion call for reflection was relentless, and that he was defesneless against its demands. The line that seemingly separated the then from the now was illusory at these times, and that despite his efforts to the contrary, he would be once again be transported to that place of long ago, as fresh in its palpability as if those decades past had occurred only yesterday.

                  And he knew that it was only a matter of time before the tears were to fall anew.

                  During the day, his life was full of the distractions necessary to overcome the sadness that dwelt in his heart, waiting like a thief in the ngiht to ambush him from the carefully sequestered recesses of his mind. In the day, there was work, there were friends to banter with, there were bills to pay and plans for the future to be made. But lying in bed at night, there was nothing to stop him from the haunting reminiscence of those days gone by.

                 Sometimes he was able to put up a valiant fight against the onslaught of the bittersweet memories of the fatherhood that was denied him by practicing a sort of Zen absence of mind. But more often than not, “thinking about nothing” would lose out to the inevitable exhortations of his own mind to replay again and again the times when he was not the shadow of a father that he had now become. In this relentless pursuit of peace, he knew that he was going to try yet again to figure out what went wrong and what he could possibly have done to prevent it, despite the fact that ultimately there would be no answers to the questions that plagued him in the quiet and lonely hours of the night.

                In these moments, he knew that he was ultimately powerless against the tide of remembrances that would sweep him out into that sea of despair that he sought to avoid. In the light of day, he could pretend that he had long since built up an immunity to the pain of the loss that he had experienced when Livy’s mother took him out of her life. At these times, he sometimes wished he could erase all traces of the kid that had once been the entirety of his life. At these times, he wished he could “wipe the slate claen” and live a life unencumbered by the multitude of still frames of he and his daughter together that flashed before his mind.

               Nevertheless, he knew also that these memories, however sad and injurious they had become to him now, were all that he had left of her. And so he clung to them even as they tore at his soul, hoping that somehow he would be able to smile at the thoughts of the happy times he shared with Livy. He hoped that somehow he could find a path that led him not to the torment of that loss, but instead to a reconcilation that would allow him to accept the unacceptable, to what the Emperor Hirohito described as “enduring the unendurable.”

             And so he waited in the silence for the exhaustion of the effort to make sense of the past would eventually overwhlem him, until the tears dried up and he would at last drift off into a state of blissful unconsciousness, ever mindful that even then the dreams might come to rouse him from the tranquility of his slumber. And that with the rising sun, he could somehow, some way, construct anew a fortress against the pain of the night that would visit him. And as the morning light hit his eyes, he held out hope that he could shield himself against the onslaught of memories that should comfort him, but which instead sought to diminish him.

“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.