Posted 07/06/2024 by Dr Adam Broinowski
Revision in custody law
Japan is one of the only
countries in the world that protects and maintains a sole custody system. On 17
May 2024, however, Japan’s House of Councillors, in a plenary session of
parliament, passed a revision to the country’s Civil Code that now allows
divorced parents to choose either joint or single custody while requiring them
to cooperate in ensuring their children’s rights and wellbeing.
The sole custody law has been criticised for
incentivising child abduction. This is because a Japanese parent can relocate
their child or children to Japan from Australia (or other country) without
permission of the other parent and then claim sole custody under Japanese law. They
can ignore a foreign court ruling as it has no jurisdiction.
As the first major change regarding parental authority in 77 years, the revision follows a 2012 amendment to Article 766(1) of
the Civil Code to prioritise the child’s interests in custodial disputes, and
an August 2023 proposal for custodial reform by the
Family Law Subcommittee of the Legislative Council.
Social change in family relationships in
Japan, including shared child-rearing and increases in divorce rates, has seen an
increase in child custody cases from 300,000 in 2012 to about 1.1 million in 2022. Some 70% of those children in Japan
who are cared for in sole custody reportedly do not receive visits or child
support from their non-custodial parent.
Given that the burden rests
with the court in custodial disputes, there is
concern that the increased pressure on the family courts may undermine their
capacity to properly determine the existence of coercion, domestic violence or
child abuse. The revision is to take effect by 2026, and rulings
will be applied retroactively to those who have already divorced. The revision
is to be reviewed 5 years after it takes effect.
As economic,
political and security ties grow closer between Australia and Japan, as is
evident in the Reciprocal Services Agreement (RAA) signed in 2019, custody
cases are likely to increase in future.
Sole and joint custody law
Under the legal regime of sole custody (art. 819) in Japan’s
Civil Code (Minpo), unless there is a ruling for joint custody in mutual
divorce agreements (kyogi rikon) (which is rare), sole custody rights (shinken) are most
often given maternal preference in divorce
cases. To determine preference, the courts typically prioritise the
child’s welfare and consider the child’s ‘habitual place of residence’ and the ‘primary
caretaker’ (kangoken). As many divorced mothers have low incomes and do
not receive regular child support from the divorced fathers, in cases where
there is a threat of danger the sole custody law is also intended to give the
mother the opportunity to begin a new relationship involving shared parenting.
The legal options available to non-custodial parents (‘left-behind
parents’) to enforce meaningful visitation arrangements are limited, with minimal
penalties for non-compliance. Judges in family law courts in Japan have no
enforcement powers in civil cases and police are reluctant to become
involved in domestic disputes.
Proponents of joint
custody (including many non-Japanese
citizens) contend that shared child-rearing between divorced parents and
their extended families will reduce the incentive for a parent to abduct their
children.
Opponents of the revision claim that it will make it harder to cut ties with or
obtain restraining orders against abusive spouses, destabilise the child’s situation, and reduce
the custodian’s agency in court decisions. For example, the Japan Times reported that ‘a 2022 survey carried
out by a support group for single mothers found that 80% of single parents in
Japan were against or disinclined toward joint custody’.
As such, the revision included a
clause to ‘confirm the true intention’ of each parent.
However, critics consider its vague wording on
shared parenting, and the lack of a guarantee and enforcement of visiting
rights, as insufficient to address underlying social and cultural norms.
International implications
In recent decades, the number
of cross-national marriages (kokusai kekkon) in Japan significantly
increased to reach a peak of around 44,000, comprising 6% of all marriages in the country in 2007,
which is lower than other countries in East Asia. The majority of these marriages
in Japan involve citizens of East and Southeast Asian countries. While
hundreds of abducted children from
Europe, the UK, the US, and Australia have been reported, divorces concluded with Japanese
citizens overseas are not officially recorded and are only made known through foreign
governments. It is likely, therefore, that the total number of abducted
children in Japan is underreported.
The Government of Japan signed the 1980 Hague Convention on
the Civil Aspects of International Child Abduction in April 2014. To handle
such cases, a specialised branch within the Ministry of Foreign Affairs was set
up, and Japanese courts have recognised some Hague Convention orders.
However, Japan has not reformed its family law system to be
compatible with the international convention. Japan does not officially
recognise multiple nationality and the legal relationship between parents and
their child is governed by the law of the country of which the child and one of
the parents are citizens (art.
32).
This situation is aided, in part, by the family registry
system (koseki tohon) in Japan. Under the koseki system, the basic unit is the family and not the individual. As such, a
Japanese national may only be registered to one family and must de-register
from their current one when making a new family through marriage. Non-Japanese spouses
may not register their own koseki, and so there is no official
registration of their child as independently belonging to them.
Visitation, where it is permitted to a non-custodial parent,
is often limited to short, infrequent, online sessions with an independent
third-party monitor, and without supplementary physical meetings.
In recent years, several countries and institutions,
including Australia, have criticised
the laws. Recent Australian Government initiatives have included: