draft calling for joint custody in Japanese divorces; The single custody law makes Japan an international anomaly

Aiming to introduce a joint custody system under which divorced parents can share parental authority, the Justice Ministry on Tuesday submitted a draft to use as a basis for discussions on amending the Civil Code to a subcommittee of the legislature. Advisory body to the Minister of Justice.

The bill makes clear that divorced parents should be given the option to share custody of their children on the basis of mutual consent. It also proposes a system in which consideration is given to victims of abuse or domestic violence.

responsibilities

The joint custody system was introduced on the principle that parents must respect each other’s personalities, regardless of whether they are married, in order to fulfill their responsibilities to their children.

The current Civil Code stipulates that married parents share custody of their children, but after divorce, only one of the parents exercises parental rights.

The subcommittee began discussions about revising the sole custody rule after Justice Minister Yoko Kamikawa asked the legislature to do so in February 2021 in light of problems such as non-payment of child support and communication blockages between children and their non-custodial parents.

The Legislative Council will prepare its draft outline by the end of the current fiscal year and submit a proposal to the Minister of Justice. The ministry is considering submitting a bill to review the civil law and other related laws to the regular session of parliament next year.

The draft stipulates that divorced parents can share custody of their children, based on their mutual consent. The law also states that when divorced parents cannot agree on custody terms for their children, family courts will decide whether they will have joint or individual custody, taking into account the relationship between the parents as well as between the parents and their children.

Court statistics for 2022 show that more than 90% of divorced mothers obtained custody of their children after a judgment or mediation related to divorce was issued.

“If joint custody is granted, I might be able to share my children’s education and other matters. It would be a step forward,” said a man in his 40s living in Tokyo, who said his wife suddenly left him two years ago with their three daughters.

Factoring in abuse

There is strong opposition to joint custody on the grounds that domestic violence and other forms of abuse may continue even after a divorce. In public comments the department received through February, nearly two-thirds of individuals opposed joint custody.

The draft states that individual custody must be respected if a parent is found to be involved in domestic violence or other abuse. This is because the ministry aims to remove as much as possible of any harmful effects of joint custody, while accounting for critical voices, according to a senior ministry official. It also states that a family court should be able to re-assign custody at its discretion if a parent is found to have engaged in acts of violence or coercion in connection with the original custody decision.

Currently, parents cannot divorce without specifying who will have custody of their children. To prevent coercive agreements over joint custody through domestic violence, the bill also includes a proposal to separate the issue of custody from divorce proceedings by allowing family courts to decide who will have custody of the children next.

criticism from abroad

In other countries, joint custody is the dominant approach. According to the ministry’s survey conducted in 2020, India and Turkey were the only two countries where sole custody was the only option among a group of 24 leading countries, including the United States, Britain and Germany.

Recently, cases of foreign nationals claiming that their children were abducted by their current or former Japanese spouses after the breakdown of their marriage has become a problematic issue.

In July 2020, the European Parliament criticized Japan by name, saying it was concerned about the rising number of child abductions by the Japanese. Increasing criticism regarding Japan’s position on sole custody abroad has also encouraged discussion about the introduction of joint custody in Japan.

France and Italy support joint custody as a general rule, but allow sole custody in cases where courts decide that joint custody is not in the children’s best interest because it invites a risk of abuse or other problems. It is believed that this served as the basis for the project in Japan.