The current legislation in Japan is of concern to some of the highest international authorities. So much so, that foreign embassies have even started warning expats wanting to start a family in the country. Indeed, in the case of a divorce child custody can only be given to one parent in Japan. This has given rise to several cases of “child kidnapping”.
The law and its application
Article 819 (Chapter IV) of the Japanese Civil Code defines parental authority as an authority over a child that can not be shared, even in cases of divorce by mutual consent. Divorcees may, on the other hand, agree to designate the person who will retain parental authority (parental agreement). However, if there is no agreement, the family court decides who the custody goes to. Usually, parental authority is conferred on the mother (in 80% of cases).
Article 766 of the Japanese Civil Code allows divorced parents to decide, by agreement, on the right to custody. Once again, it is a matter of designating the person who will have the right of custody. Shared custody is not recognized. Again, if the parents can not agree, the Family Court grants custody to one of the parents.
The parent who loses parental authority and the right of custody may, however, still according to article 766, obtain a right of visit. But the legislation remains vague: this right of visit does not appear on the koseki, official document of the divorce. There is no way for the parent who does not have custody to enforce it.
In practice, access does not exist. The courts do not do anything to enforce the law. The police are equally passive: Japanese law provides for no penalty for the parent who does not comply with the law.
In the case of a separation between a Japanese spouse and an expatriate, it is often the expatriate who is aggrieved: he loses his parental authority, even if the Japanese parent would have broken the law. We are talking here about kidnappings, a real scourge in Japan. A scourge long hidden - and impacting primarily the Japanese themselves - which, in recent years, is more widely highlighted, in particular, under the pressure of associations and international bodies.
A ray of hope?
In 2014, Japan has ratified the Hague Convention on International Child Abductions and the world hoped that children's rights would be more closely considered in Japan. In practice: the Hague Convention is not respected. Many expatriate parents - often fathers - are running out of means to make their voices heard. In France, in June 2019, President Macron received aggrieved expat fathers and promised concrete action from France to help assert their parental rights.
In Japan too, voices are rising. Many Japanese protested against exclusive parental authority, and its perverse effects: the kidnapping of children, the breaking of the bond between the child and the excluded parent, who becomes a real stranger.
Should we see a glimmer of hope? Last September, Justice Minister Katsuyaki Kawai held a press conference where he mentioned that he would study the issue of shared custody. The minister is giving himself a year to write a report on this subject with a ministerial college. He hears voices promoting shared custody, beneficial to the child. The examples of the United States, or European countries, in which this principle has been applied for a long time, have been cited as examples.
Others, on the other hand, want to maintain exclusive parental authority, precisely on behalf of the child. For those opposed to shared custody, it is essential to maintain stability; a sharing parental authority would be detrimental to child development. They also mention the risk of a resurgence of domestic violence and abuse.
As for expats, they keep hoping that the report of the Ministry of Justice favors shared custody. And that, above all, it leads to concrete measures, allowing expat parents find their children.
