«DIVORCE AND THE WELFARE OF THE CHILD IN JAPAN Matthew J. McCauley† Abstract: Current Japanese legal institutions are ill-equipped to resolve the ...»
Compilation © 2011 Pacific Rim Law & Policy Journal Association
DIVORCE AND THE WELFARE OF THE CHILD IN JAPAN
Matthew J. McCauley†
Abstract: Current Japanese legal institutions are ill-equipped to resolve the
complicated issues surrounding visitation, custody, and divorce. Japanese views toward
family and society have changed greatly since the post-World War II family law was
enacted in the 1950s, but the law has not evolved accordingly. This is especially clear in the methods used to determine custody and visitation, as well as the kyōgi rikon, or divorce by mutual consent system. Policy makers and activists are both working to resolve this problem, but their ongoing struggle has yet to produce any tangible results.
This comment argues that the Japanese legal system must be reformed to allow for joint custody and to create a presumption for reasonable visitation, and the kyōgi rikon system must be changed to grant greater protections to all parties, including requiring a detailed parenting plan to provide for the children’s welfare and continued relationship with both parents.
Cory to find them.4 She and the children stayed at the shelter before moving to subsidized housing, where she reportedly abused the children emotionally and physically.5 Mr. Cory continued to search for his children during this † Juris Doctor expected in 2012, University of Washington School of Law. The author would like to thank Professor Kate O'Neill, Naoko Inoue Shatz, and all the members of the Pacific Rim Law & Policy Journal for their guidance and help in writing this comment. Any errors or omissions in this analysis are solely the author’s own.
Richard Cory, Battling a Broken System, JAPAN TIMES, Sept. 21, 2010, available at http://search.japantimes.co.jp/cgi-bin/fl20100921zg.html [hereinafter Cory, Battling a Broken System];
Richard Cory, Behind the Facade of Family Law, JAPAN TIMES, Sept. 28, 2010, available at http://search.japantimes.co.jp/cgi-bin/fl20100928zg.html [hereinafter Cory, Behind the Facade of Family Law].
time, but the government workers refused to tell him where his children were, and even refused to pass on a simple message on his behalf.6 Three weeks after being taken from home, Mr. Cory’s daughter, the eldest child, found a pay phone while her mother was out and called Mr.
Cory for help.7 She told him where she was going to school and that she just wanted to go home.8 The next day, Mr. Cory went to his daughter’s new school after class and took her home, where she stayed throughout the remainder of the custody dispute.9 After a lengthy court battle, the court eventually decided to award custody of the two boys to the mother and custody of the daughter to Mr. Cory, reasoning that the children were happy with their current living situation and thus relocation was unnecessary— essentially custody by capture.10 While this case was more contentious and dramatic than most, it is emblematic of the Japanese family law system, which fails to consistently make decisions that protect the welfare of children, respect the rights of parents, and facilitate healthy interaction between parents and children following divorce. Divorce is rarely an easy process, requiring the family to divide everything that was shared in marriage, including custody and visitation rights for children. In Japan, this problem is compounded by the inadequate protection of visitation rights, the lack of a joint custody system, and a divorce system that features a procedure called kyōgi rikon, which allows the husband or wife to unilaterally determine all the conditions of their divorce without any oversight or guidance.11 These institutions must be reformed because they often fail to protect the fundamental rights of children and noncustodial parents.
Part II of this comment will outline the current Japanese divorce system, showing how visitation is not protected as a fundamental right under the law, which results in extremely limited contact between children and their noncustodial parents. It will also show how the current law does not provide for joint custody, requiring parents to fight over who will exercise sole custody over each child. It will further show how the kyōgi rikon system lacks substance, provides no oversight, and does not allow for the creation of enforceable divorce agreements.
Cory, Behind the Facade of Family Law, supra note 1.
See infra Part II.
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Part IV will advocate for reform of the Japanese family law system in three key areas: 1) recognition of the right of visitation for the noncustodial parent, 2) creation of a preference for joint custody over children, and 3) reform of the kyōgi rikon system to mandate the creation of a detailed parenting plan when minor children are involved, require judicial approval of any divorce agreement, and provide access to mediation and litigation for the enforcement of valid divorce agreements.
II. JAPANESE LAW DOES NOT PROTECT VISITATION, ALLOW JOINT
CUSTODY, OR PROVIDE EFFECTIVE OVERSIGHT OF DIVORCECurrent Japanese family law, largely unchanged since 1959, does not recognize visitation as a right for the noncustodial parent and requires divorcing parents to decide which parent will exercise sole custody over each child. 12 Furthermore, the kyōgi rikon system does not provide a substantive framework for creating a fair divorce agreement and does not provide an effective mechanism for enforcing these agreements. This section will examine how each of these areas function under the law today.
Part A will look at the current visitation system. Part B will examine the limitations of the custody system. Part C will explain the kyōgi rikon system and how it is used more than any other type of divorce.
A. Japanese Law Does Not Recognize Visitation as a Legal Right
Japanese law does not provide any constitutional or statutory protections for the right of the noncustodial parent to see his or her children following divorce.13 Instead, all decisions regarding custody are left entirely MINPŌ [Civ. C.] arts. 763-71, 819. See also Mojuro Tonooka, Kaisei Minpō to Shinkensha, 25-3 WASEDA HŌGAKU 61, 68-75 (1950) (explaining the changes in the law relating to child custody);
Masakazu Ueno, Kyōgi Rikon no Mondaiten, 1059 HANREI TIMES 57 (1995) (noting how the laws relating to kyōgi rikon effective today were enacted in 1959).
Saikō Saibansho [Sup. Ct.] July 6, 1984, Sho 58 (ku) no. 103, 37(5) KATEI SAIBAN GEPPŌ [KASAI GEPPŌ] 35 (Japan) (restrictions on visitation do not violate the Constitution); TŌRU ARICHI, KAZOKUHŌ GAIRON 291 (2003).
592 PACIFIC RIM LAW & POLICY JOURNAL VOL. 20 NO. 3 to the discretion of the parents themselves in divorce by mutual consent, or to the courts in divorce litigation, resulting in visitation awards that are insufficient for facilitating meaningful interaction between parent and child.14 These court decisions have evolved in their reasoning over time, yet still do not provide any assurance of reasonable visitation.
The Japanese courts first recognized the value of visitation in 1969, but have since refused to treat it as a fundamental right.15 The first Japanese Supreme Court case on this issue was decided in 1984, which rejected a noncustodial father’s argument that the right to visitation is protected as a right to pursue happiness under Article 13 of the Constitution.16 The only other major Supreme Court decision was in 2000, which affirmed the authority of the courts to award visitation under Article 766 of the Civil Code but explicitly rejected the argument that a parent had a right to visitation under the current law.17 Courts will often deny visitation when the custodial parent protests on the grounds that allowing visitation would place an undue burden on the child.18 However, critics assert that this “burden” is often a manifestation of the animosity between parents rather than a true desire to protect the interests of the child.19 Even when visitation is granted, the noncustodial parent’s time with the child is often highly restricted in frequency and scope. For example, court statistics from 2009 show that only 14% of cases allowed overnight stays and only 52% permitted visitation once or more per month, which is generally interpreted as visitation rights of only one day per month.20 The Colin P. A. Jones, In the Best Interests of the Court: What American Lawyers Need to Know About Child Custody and Visitation in Japan, 8 ASIAN-PAC. L. & POL’Y J. 166, 234-35 (2007).
See Tōkyō Katei Saibansho [Tōkyō Family Ct.] May 22, 1969, Sho 44 (ie) no. 2262, 22(3) KATEI SAIBAN GEPPŌ [KASAI GEPPŌ] 77 (Japan).
Saikō Saibansho [Sup. Ct.] July 6, 1984, Sho 58 (ku) no. 103, 37(5) KATEI SAIBAN GEPPŌ [KASAI GEPPŌ] 35 (Japan); Jones, supra note 14, at 241.
Saikō Saibansho [Sup. Ct.] May 1, 2000, Hei 12 (kyo) no. 5, 52 SAIKŌ SAIBANSHO MINJI HANREISHŪ [MINSHŪ] 1607 (Japan).
See e.g., Tōkyō Kōtō Saibansho [Tōkyō High Ct.] Feb. 29, 1990, Heigan (ra) no. 537, 42(8) KATEI SAIBAN GEPPŌ [KASAI GEPPŌ] 57 (Japan) (justifying denial of visitation as a burden on the child); Ōsaka Kōtō Saibansho [Ōsaka High Ct.] Feb. 3, 2003, Hei 17 (ra) no. 1023, 58(11) KATEI SAIBAN GEPPŌ [KASAI GEPPŌ] 47 (Japan) (denying visitation because the child was living in a stable environment with father and adoptive mother, and visitation would place a burden on the child); Yokohama Katei Saibansho [Yokohama Fam. Ct.] Apr. 30, 1996, Hei 6 (ie) no. 3582, 49(3) KATEI SAIBAN GEPPŌ [KASAI GEPPŌ] 75 (Japan) (holding that it is best to deny visitation when there is conflict between the parents).
Takao Tanase, Ryōshin no Rikon to Kodomo no Saizen no Rieki [The Best Interest of the Child During Divorce: Disputes over Visitation and the Japanese Family Courts], 60 JIYŪ TO SEIGI 9 (2009). A translation of this article precedes this Comment.
SUPREME COURT OF JAPAN, HEISEI 21 NEN SHIHŌ TŌKEI NENPŌ, KAJI JIKEN HEN [ANNUALREPORT OF CASE STATISTICS FOR 2009, FAMILY CASES] 41 (2009), available at http://www.courts.go.jp/sihotokei/nenpo/puff/B21DKAJ41.pdf, cited in Jones, supra note 14, at 234-35.
JUNE 2011 DIVORCE AND THE WELFARE OF THE CHILD IN JAPAN 593remaining half of cases saw even less frequent visitation, with many cases only allowing visitation a few times a year or not at all.21 Visitation can become even more difficult when the non-custodial parent is not a Japanese citizen. Marriage-based visas terminate after divorce, sometimes leaving divorcees with no way to remain in the country legally to support their children.22 Non-Japanese parents are sometimes able to remain in the country after divorce if their children are Japanese citizens under a special program established by the Japanese Immigration Bureau, but research by the Asian Women’s Fund has shown that education and economic issues prevent many parents from taking advantage of the system.23 B. Japanese Law Does Not Recognize Joint Custody Almost 60% of all divorces in Japan involve minor children, yet the law does not provide a framework for parents to share custody of their children.24 This makes it necessary for the parents themselves, or in some cases the courts, to determine which parent will exercise sole custody.25 The Civil Code divides custody into two distinct rights, shinken (parental rights) and kangoken (physical custody). 26 The law does not provide an explicit definition of either right, but shinken is generally interpreted as the right to administer assets, legally represent the child, and make major parental decisions while kangoken encompasses the everyday “care and education” of the child.27 These rights are generally vested with SUPREME COURT OF JAPAN, supra note 20.
Yorimitsu Masatetsu, Gaikokujin Rōdōsha no Sedaikan Rigaini Kansuru Jirei Kenkyū,
HITOTSUBASHI UNIVERSITY INSTITUTE ECONOMIC RESEARCH 4 (2001),OF http://hdl.handle.net/10086/14451. “Status of residence” is a term used in Japan to designate a nonJapanese citizen’s status in the country, and is commonly referred to as a visa.
SETSUKO LI, JOSEI NO TAME NO AJIA HEIWA KOKUMIN KIKIN [ASIAN WOMEN’S FUND], ZAINICHI
GAIKOKUJIN JYOSEI NO DOMESUTIKKU BAIORENSU HIGAINI TAISURU SHAKAITEKI SHIGEN—SONO GENJŌ
TO KADAI [SURVEY ON SOCIAL RESOURCES REGARDING DOMESTIC VIOLENCE FOR FOREIGN WOMENLIVING IN JAPAN], 48 (2004), available at http://www.awf.or.jp/pdf/0160.pdf.
Ministry of Health, Labour, and Welfare, HEISEI 21 NENDO “RIKON NI KANSURUTŌKEI” NO GAIKYŌ [2009 OUTLOOK ON STATISTICS RELATING TO DIVORCE], tbl.3 (2009), available at http://www.mhlw.go.jp/toukei/saikin/hw/jinkou/tokusyu/rikon10/index.html (last accessed Dec. 26, 2010), [hereinafter 2009 COURT STATISTICS] (Out of a total 250,136 cases, 143,834 involved minor children.);