Photo/IllutrationThe Asahi Shimbun

The trial of an estranged Australian husband who is charged with trespassing after trying to check on the safety of his two children is putting an international spotlight on Japan's lack of a joint-custody system after divorce.

In the trial that opened at the Tokyo District Court on Jan. 10, the defendant, a 45-year-old journalist, argued that his wife taking their children without his consent constitutes abduction.

The man is charged with trespassing at an apartment building in Tokyo where the parents of his Japanese wife reside.

The Australian news media is covering the case, noting that Japan is one of only a handful of advanced nations that reject the right to joint child custody. Major newspapers in Britain and France are also reporting on the trial.

The man married his wife in 2007 when they were in Australia. He began living in Japan in 2015. But his wife took the couple’s children to live separately in May 2019 and their whereabouts have been unknown to him since.

The man and his wife remain legally married, with their divorce not finalized yet.

He was arrested in October when he entered the lobby of the building by following in a resident who unlocked the door.

In the trial, the defendant testified he entered the complex to ask his in-laws if his children were safe. He said he became very concerned after a powerful typhoon hit the Kanto region.

Prosecutors are seeking a six-month prison term for the defendant, contending that he used violence against one of the children.

In Western countries, parents are typically granted joint custody of their children after they divorce. If an ex-spouse lives separately with their children without permission from the other, the former can be charged with abduction.

Japan ratified the Hague Convention on international child abductions in 2013, becoming one of 101 countries to sign the treaty.

The treaty spells out guidelines for cases in which children are taken by one parent outside the country where the child lived without the other parent’s consent. Under the guidelines, when a child under 16 is taken outside the country, the child must be returned to the country they originally resided, in principle, at the request of the other parent.

But the treaty is not applied to a dispute between the parents who live within Japan even if one of the parents is non-Japanese. It has been a source of growing resentment among foreign parents.

Fumio Tokotani, a professor of family law at Nara University, called for discussion on the Japanese judicial system under international law.

“As the number of international marriages increase, we need to discuss how to integrate the treaty with the Japanese legal system,” he said.