Hat tip to Tony over at his website. I didn’t know Maryland had ruled late last month.
Tony is one of the “work with Japan” faction of the Left Behind Parents. These, as you know, are the fathers (mostly) who had children by Japanese spouses, where there was some sort of split in the relationship, and the father was left out in the cold.
To review, this is Navy Commander Toland’s predicament: sometime in the last decade, he was going to split with his wife in Japan. Because he is “under SOFA”, which has nothing to do with furniture, but rather Status of Forces Agreement, he could have received a divorce in Washington state, where he was form. Custody of his daughter would have been determined in Washington state, under American law.
What Toland has said, however, is that the JAG (military lawyer) in Yokohama advised him to work through the Japanese courts. This looks to have been a big mistake for advice, and, frankly, I think it was a big mistake. I am surprised that U.S. government would have any lawyer telling a military guy to “use the Japanese court system”, especially when the Defense Department fights so damn hard with the Japanese about every little point of SOFA. Even in situations where it’s clear that the Japanese are making a very good case. (For example, a rule of having the Alien Registration or the new Zairyu Card when you are a serviceman living off base.)
Because Commander Toland initiated his divorce in Japan, and it carried a certain number of steps along the way, it created “issue and claim preclusion” in Washington state courts. Issue and claim preclusion, sometimes known as collateral estoppel and res judicata, are common law rules that bar the litigant from bringing a case in one jurisdiction, when, in fact, it has already been litigated—sometimes, even, under litigation—in another jurisdiction. This is very important law to know; and, as I say, if you are reading me, do your own homework about it.
Since the time of Toland’s divorce, his wife passed away, and the grandmother (Mrs. Futagi) was given custody guardianship of Toland’s daughter by the Japanese courts. So Commander Toland, now in Maryland, instituted action to see if he could get custody from the [guardian-]grandmother, since the initial litigation was versus the (late) wife.
However, Maryland is one of the jurisdictions that adheres to the American “Uniform Child Custody Jurisdiction and Enforcement Act” (UCCJEA). This act generally leaves jurisdiction in the place where the child is located. So, even though Mrs. Toland passed away, the daughter is still in Japan with the grandmother, who is guardian. Under UCCJEA, this means, again, that Japan has jurisdiction over who has custody of the daughter.
To correct a couple of people out there, Commander Toland’s Maryland case was not a “frivolous” case; it was, however, a losing case. This was because UCCJEA, by its own definitions, treats a foreign country as another “state”. So Japan is treated the same as next-door Delaware.
This is why it is very important to get your Japan-related case into the right court. That is not forum shopping. Had that JAG only advised Commander Toland correctly, he wouldn’t have to deal with the Japanese court as sole decider. It would have been more like the Moises Garcia case, where Japan would (i.e. should) honor the decisions of the Wisconsin court (especially, when the abducting wife is sitting in the pokey for trying to spirit the kid back to Japan).
Personally, I think there is too much grief in the world, and a shame, it is, that all these marriage separation decisions can’t be worked out amicably. But the world does not work that way, and you really need to be educated if you find yourself in these not-so-good situations. Knowledge can bring happiness sometimes. Spread the joy, not the grief.
[Update: A link to an ABC News site, with video featuring Paul Toland’s story.]
[Update #2: You know, most international relationships in Japan go on like Old Man River. There are no problems, and, if there are, the couple works it out. I am talking about the particular situations when things go wrong.
I’m not a practicing lawyer, but I did go to law school—and I passed the bar. And keep my admissions up. Besides the law training, I keep a CPA. So, maybe, doubled-up on the regulatory soup. But even more, I have always been somebody who believes in the modern regulatory state. Regulations are good.
Some people do not believe in regulations at all. If everyone were honest, though, that number would be very few. Most people really believe in regulations when it benefits them, but not when it’s to their disadvantage. That’s really a lot of the Japan-side expat community, too, isn’t it?
To me, the whole tragedy–besides a relationship going–is the JAG lawyer. The JAG lawyer should have been up on the jurisdictional rules. It’s a shame, because no way was a Japanese court going to give anything to Paul Toland, and that’s why the SOFA is such a negotiated thing. There are so many unprofessional screw-ups over in Tokyo.]
[Update #3: Tony DelVecchio looks to have taken down his original blog entry, dated March 30. Not sure why, even though I sense that he realized the point he was making (only use Japanese courts) wasn’t the best.]
[Update #4: Oops, now it’s back up.]
[Update #5: Commander Toland testimony before a congressional subcommittee, a few years ago. Since that time, of course, one child has been returned to America. (This was Moises Garcia’s girl.) All the 180 or so others, though, no.
[Update 4/23/12: If you would like Patrick Braden’s perspective on the extensive thread below, past this date PM, contact him directly at Global Future, which you might find on a Google search.]
[Update 4/24/12: As I review the comments made, I am particularly disappointed by some statements, especially in light of this litigation, from California in 2008 . . . How would suing ANA airlines for selling a ticket to an absconding mother and her son make anyone in Japan feel positive about the Left Behind Parent issue?]
[Update 5/14/12: Some of the comments below have been redacted, because one of the parties decided to move the dispute off this blog and to the “Hog Wallow” law school itself. Because that person mischaracterized some of Mr. Savoie’s statements, Mr. Savoie asked me to remove comments that pertain to Mr. Braden’s lack of a legal education. To be fair, I am also reviewing what Mr. Braden (who has been banned as a commenter for other remarks made) has said on this thread, with a critical eye to the fact that he follows Mr. Savoie around the internet, saying things that are or can be similarly skewed, to mean something defamatory about the target, or to paint Mr. Savoie (Mr. Toland, etc.) in a bad light.]
[Update 4/20/13: a partial victory in Washington State. My comments from September, here.]
Hoofin 