Calls are mounting that Japan allow for joint custody of children after the divorce or separation of their parents — as opposed to awarding sole custody to either parent, which is currently the only option under the Civil Code. The Justice Ministry has launched a study group comprising experts and relevant officials to look into the matter. Last month, a group of people who lost custody of their children through divorce or separation from their spouses filed a lawsuit seeking damage from the government for being denied the right to raise their children due to the lack of a joint custody system.
In a set of recommendations in February, the United Nations Committee on the Rights of the Child urged Japan to take legislative steps to allow for shared custody of children after divorce, including for foreign parents, and “ensure that the right of the child to maintain personal relations and direct contact with his or her non-resident parent can be exercised only a regular basis.”
There are pros and cons in Japan about introducing joint custody, which is prevalent in Europe and North America. Discussions on the matter should proceed in ways that put priority on protecting the interests and welfare of the children involved.
Under the Civil Code, the custody rights of children are shared by parents only when they are married. When they are divorced, only one parent gets sole custody of their children. In a divorce by agreement, which accounts for most cases in Japan, the custodial parent is determined by the consent of the parties, while the courts make the decision in a divorce by trial.
Joint custody is based on the rationale that it is in the interest of the children for both parents to be responsible for raising them even after divorce. Sole custody is believed to make it easier for the custodial parent to make decisions about the children’s upbringing, such as education. However, it is pointed out that the parent who holds sole custody often fails to keep to the arrangements made in the divorce for the other parent to regularly see their children, thus denying this parent the opportunity to be involved in their upbringing.
On the other hand, there is concern that when child abuse or domestic violence lie behind the divorce, the conflict between the parents will be carried over into the joint custody of their children, possibly destabilizing the environment in which the children are raised and running counter to their best interests.
Custody disputes have increased as more than 200,000 divorces occur each year in Japan. The number of family court mediations and proceedings on feuds between divorced and separated parents concerning child custody topped 44,000 in 2018, an increase of 11,000 from 2009. And the proceedings are becoming longer — they now take an average of 6.8 months to conclude. The disputes over child custody are reportedly growing more intense as both parents hold jobs in more families and the parents’ sense of attachment to their children become stronger as each family has fewer kids.
Attempts to improve the situation surrounding child custody are complicated by the fact that arrangements for visitation rights by noncustodial parents or child support payments are often not honored. In a 2016 survey by the Health, Labor and Welfare Ministry on single-parent households, only 24.3 percent of mothers living with their children and 3.2 percent of such fathers polled said they continue to receive child support payments from their divorced spouses. Only 29.8 percent of the single mothers and 45.5 percent of the single fathers said their divorced spouses continue to regularly see their children. There are calls that parents should be obligated to devise a plan for their children’s upbringing at the time of divorce. There are also concerns, however, that such a requirement would make it difficult for mothers suffering from domestic violence to escape from their abusive husbands.
The 12 men and women in their 40s to 60s who filed the lawsuit with the Tokyo District Court last month lost custody of their children through divorce or separation from their spouses or in a breakdown of common-law relationships with partners. They charge that the sole custody system violates their right to raise their children and runs counter to equality under the law and the right to pursue happiness under the Constitution, and accuse the government of negligence for its failure to take legislative steps to introduce joint custody. The plaintiffs say that as a result of their divorce arrangements, they are allowed to see their child at most twice a month, each time for a mere two hours.
Behind the rising calls for joint custody is the problem that noncustodial parents are not given enough time for interactions with their children — a matter that will reportedly be on the agenda for the Justice Ministry study group. Measures need to be taken to ensure the rights of children to maintain a relationship with their nonresident parents after divorce.