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Judges fill the gaps in Japan’s family law

by Colin P.A. Jones

First in a two-part series

Last year was an important one for child custody issues in Japan, with growing international pressure on Japan to sign the Hague Convention on International Child Abduction, and the dramatic arrest of Christopher Savoie in September for supposedly “kidnapping” his own kids in Fukuoka.

I was actually interviewed for a segment on MSNBC’s “Today Show” in connection with the Savoie case. Since the program quite rightly focused on an interview with Mr. Savoie, the footage used of me was quite brief: mostly a clip of me saying it was shocking how easily parental rights are terminated in Japan. But watching my (literally) 14 seconds of fame afterwards, I realized immediately that I had mis-spoken. What is shocking is not how easily parental rights are terminated, but how few parental rights there are to begin with.

While it is common to refer to divorce, custody and visitation as matters of “family law,” strictly speaking Japan does not have such a thing. The principal body of what is generally considered family law is contained in Part IV of the Japanese Civil Code, which is actually titled “Relatives.” In substance, it is concerned mainly with how family relationships are created, modified and terminated, and includes not just the rules by which marriages are formed and terminated, but also those governing the widespread practice of adoption (adult adoption remaining a common practice for households that wish to continue the family name, traditions or business but have no male children to do so).

The code also explains some of the duties of individuals within these relationships, but contains almost no provisions laying down rights, particularly after a relationship has been terminated. Thus, the code is silent on post-divorce child support, visitation and alimony (as distinct from division of marital property). Such relief as is awarded in these areas has effectively been manufactured by the courts according to their own unofficial rules and standards.

In essence, the “black letter” family law that does exist in Japan is concerned more with the form than the substance of familial relationships. This reflects the historical importance of the household rather than the individual as both a social unit and a nexus of responsibility for dealings with society and government. This may be why the government- administered koseki system — officially translated as “family registry” (though “household registry” would be more accurate) — remains an important institution, despite being so anachronistic that the average Japanese person may struggle to explain what purpose it serves in 21st century democratic society.

The family registry has its beginnings in a system implemented by the government at the start of the Meiji Period, designed to help maintain order at a time of great political upheaval. It did so by enabling the new government to keep track of who belonged to which household, and which people were “out of place.” The family registry thus traces its roots directly back to a 19th century community surveillance system. It was also a tool of class warfare: Adopting a registration system that kept track of class was one of the ways the new government eradicated the rigid samurai-farmer-artisan-merchant neo-Confucian caste system of Tokugawa Japan.

Births, deaths, marriages and divorces — and, recently, changes in gender — are all recorded in the family registry. The registry remains a quasi-public record, and a copy of it is still an important identity document, and may be required for a passport application or other purposes. As an identity document, however, the family registry suffers from a number of deficiencies, since it shows little more than who is officially related to whom and how, and possibly where in Japan the family has its roots (it being possible to have a registry that goes back many generations).

The family registry can reveal all sorts of information about people that in many countries would be nobody’s business and, more importantly, that can be the source of various forms of discrimination. For example, only Japanese nationals can have family registries, so ethnic Koreans who have lived in Japan for generations without naturalizing are readily identifiable, as are those who marry foreigners (this involves a special notation in the Japanese spouse’s registry). The document also shows whether children were born out of wedlock, and can be used to trace family origins. While it is possible for a marrying couple to start a completely new registry, this can arouse suspicions that you are trying to hide something about your pedigree.

The fact that the family registry remains a source of a person’s official identity has a number of ramifications, most of which seem negative. Reflecting the “form over substance” character of the registry, the “identifying information” may not actually be accurate. For example, since the registry reflects family origin rather than actual residence, the “domicile” shown in a Japanese passport may be a place where its holder was neither born nor lives.

Another example is the anachronistic legal requirement that a child born within 300 days of the mother’s divorce be registered as the child of her ex-husband — even if she has married the child’s biological father. Thus, the formalistic integrity of the registry system takes precedence over the biological and emotional reality of Japanese children.

Indeed, when form and substance clash in Japanese law, the family registry and outdated provisions of the Civil Code often win. Marriages are not legal until they are registered, and in custody disputes, what the family registry says may be more important than the reality of a child’s living environment and biological or emotional bonds. As a result, fathers of children born out of wedlock — even if it is due to the circumstances of the mother (such as being estranged from but still married to someone else, or not wanting to change her name for professional reasons) — have literally no legal standing over their own children in Japan, even if they are the primary caregiver. Similarly, after divorce a noncustodial father legally becomes a “stranger” to his own children and may be shocked to discover that, without his consent, these children can be adopted by a new husband if his ex-wife re-marries, or by her own parents if she does not.

This brings us back to the Civil Code, which basically says that, absent special circumstances, mothers have custody of extramarital children, that married parents have joint custody over children of the marriage while it lasts, and that if divorcing parents are not able to agree on who gets custody, a judge will decide for them.

At the same time, however, the code contains virtually no standards for custody decisions after divorce other than a reference to the “interests of the child.” Courts purport to use a “best interest of the child” standard, but there are virtually no statutory guidelines as to what that means (that is, unless you include the fact that the Civil Code does not allow joint custody post-divorce — even if both parents desire it). The law effectively assumes that outside of marriage, having only one parent actively involved in a child’s life is better than having both. But since the focus of the law was traditionally on the interaction between households and the rest of society, this restriction may have once made sense: Fewer disputes are likely to arise if after divorce only one parent has the authority to conduct dealings with third parties on the child’s behalf. It is, however, a rationale that has little to do with the best interests of the child. A sole-custody regime is probably also easier for bureaucrats to administer, and changing it might involve a wholesale restructuring of the family registry system, and even lead to thinking about whether it is still even necessary (South Korea recently replaced its family registry with a personal registry system).

Other than the limitation on joint custody, there is essentially no substantive body of “law” on child custody or visitation in Japan, with such matters left to the discretion of Family Court judges. Courts have used this authority to adopt a number of unofficial standards, including a strong preference for the status quo (but only the status quo at the time of litigation; the status quo of children before they are abducted to Japan, for example, is often ignored). Courts are also increasingly open to the once-alien notion of visitation after divorce, but often only if both parents agree to it. And while mothers refusing to agree to visitation is a persistent problem, it is not uncommon for Japanese fathers not to seek it, either.

Another standard invented by the courts is a preference for mothers when it comes to custody orders, though the parties are always free to agree to give custody to the father in the course of the court-sponsored mediation that must precede divorce litigation. According to Supreme Court statistics, in 2008 men got custody in mediated divorces in approximately 10 percent of cases. Interestingly, the court does not appear to publish similar statistics for litigated divorces (i.e., when judges are responsible for the result rather than the parties themselves), reflecting their stated preference for mothers, particularly in the case of young children. A commercially available manual written by and for family law specialists has a chapter on custody determinations that sets forth a single standard: Give custody to the mother, because they are always going to be more attentive than fathers. (In making this judgment, the manual seems to assume that all men work outside the home and all mothers stay at home.)

The preference for mothers would seem to be an impressive feat of judicial legerdemain in the face of provisions in the Constitution, the Civil Code and the Family Court procedural statute that mandate the “essential equality of the sexes.” That jurists can talk openly about mothers as always being the “better parent” without any cognitive dissonance may reflect an understanding of the phrase “gender equality” as actually being about raising the status of women from the legal infirmities they were subjected to under the pre-war Civil Code, rather than actual gender equality. Whether such an understanding remains relevant in the 21st century is questionable.

Of course Japan has laws other than the Civil Code, and it should be possible for courts to look to them for norms and principles that could be applied to fill out the many blanks in the area of child custody and visitation. For example, Japan is a signatory to the Convention on the Rights of the Child, which contains an extensive list of rights that would seem relevant, including the rights of children to be free of various forms of discrimination against them and their parents, to know and be raised by their parents whenever possible, to preserve their name and family relations, and to continue to have contact with a separated parent. Yet none of this seems to count for anything in Japanese courts, where parental contact is easily terminated even before divorce, custody determinations are made based on gender (and nationality, many foreign parents might assert), and a child may grow up forgetting or even never experiencing the love of a caring parent who has struggled in court to prevent this from happening.

Then there is the Constitution. The U.S Supreme Court has held that parents have a fundamental liberty interest in their relationship with their children, meaning that a very high threshold must be met before a government agency can terminate it. Japanese Supreme Court cases tying the parent-child relationship to any sort of fundamental rights, however, are almost nonexistent. In 1984, a father appealed the denial of visitation to the Supreme Court on the basis that it violated his right to the pursuit of happiness under Article 13 of the Japanese Constitution. His appeal was rejected. While this may reflect the reluctance of Japan’s highest court to interfere in family affairs, many parents might question whether Article 13 means anything at all if it does not encompass the happiness of watching your own children grow up.

Colin P. A. Jones is a professor at Doshisha Law School in Kyoto