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«DIVORCE AND THE WELFARE OF THE CHILD IN JAPAN Matthew J. McCauley† Abstract: Current Japanese legal institutions are ill-equipped to resolve the ...»

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598 PACIFIC RIM LAW & POLICY JOURNAL VOL. 20 NO. 3 with both parents is important for healthy development and growth, and proper communication and harmonious interaction between parents can overcome any undue stress or hardship resulting from separation from the mother. 59 There is also evidence that the relationship between the noncustodial parent and child can thrive through visitation even when their relationship was strained prior to divorce.60 When Japan ratified the Convention on the Rights of the Child61 in 1994, it agreed to “use [its] best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of their child,” 62 and to “ensure that a child shall not be separated from his or her parents against his or her will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interest of the child.”63 However, Japan has not reformed its domestic laws to conform to the Convention’s mandates.64 Japanese law embraces neither the spirit nor substantive provisions of the Convention. The only relevant law in Japan provides that “[a]ll children who have not reached the age of majority will be subject to the authority of their mother and father.” 65 The Convention takes a more child-centered approach, protecting the right of the child to “know and be cared for by his or her parents.” 66 The Convention also extends this responsibility to the state by requiring it to facilitate and enforce these obligations and exercise due process when severing contact between parent and child.67 This issue is attracting increasing international attention, even prompting the United States House of Representatives to pass a resolution condemning the Japanese family law system because it “does not recognize joint custody nor actively enforce parental access agreements for either its Younger, supra note 54, at 201-04.

Novinson, supra note 56, at 149-50.

The Convention on the Rights of the Child, opened for signature in 1989, was the first comprehensive international agreement on children’s rights, and creates a binding obligation for states to protect “the right to survival; to develop to the fullest; to protection from harmful influences, abuse and exploitation; and to participate fully in family, cultural and social life.” Convention on the Rights of the Child, Sept. 2, 1990, 1577 U.N.T.S. 3, available at http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en.

Japan became a signatory on September 21, 1990, and ratified the convention on April 22, 1994.

Id. at art. 18.

Id. at art. 9.

Shizuyo Kawashima, The Rights of the Child and Joint Parental Authority—Joint Custody, 17 KITAKYŪSHŪ SHIRITSU DAIGAKU BUNGAKUBU KIYŌ (NINGEN KANKEI GAKKA) 1, 3 (2010).

MINPŌ [CIV. C.] art. 818. The age of majority is twenty in Japan. MINPŌ [CIV. C.] art. 4.

Convention on the Rights of the Child, supra note 62, at art. 7.

Id. at art. 9, 18.

JUNE 2011 DIVORCE AND THE WELFARE OF THE CHILD IN JAPAN 599

own nationals or foreigners.” 68 This system does not protect children or parents, and does not meet Japan’s obligations under international law.

B. Joint Custody Helps Ensure that Both Parents Are Held Equally Responsible for Their Children After Divorce Joint custody arrangements provide a valuable tool allowing both parents to take an active role in raising their children. For children, joint custody can provide a sense of security and continuance, providing the child with free access to both of their parents and helping to resolve issues of divided loyalties.69 For parents, joint custody can help equalize power in their relationship and solve the problem of “overburdened” mothers and “underburdened” fathers.70 While there are many benefits to joint custody arrangements, research has shown that they are not appropriate in every situation.71 Some joint custody arrangements result in high levels of conflict between parents, causing more harm than good for the child.72 Joint custody arrangements also increase stress by requiring the children to travel long distances and adjust to two different households with two sets of rules, schedules, and activities.73 The very schedules used to ensure equal access can also cause repeated scheduling difficulties and conflicts of interest.

Although joint custody is not the solution for all families, those families that are willing to put in the effort and cooperate for the benefit of their children are able to reap great reward. Parents are able to lessen the burdens of childrearing by shifting some of the work to the other parent, and children are given a greater sense of security, community, and family.74 Joint custody creates an atmosphere where “two committed parents, in two separate homes, car[e] for their youngsters in a post divorce [sic] atmosphere of civilized, respectful exchange.”75 There are several factors that can suggest whether a family would be well suited for joint custody, such as parents who are committed to make the plan succeed, have a willingness to communicate, and are flexible to make H.R. Res. 3240, 111th Cong. (2010) (enacted).

Meyer Elkin, Joint Custody: In the Best Interest of the Family, in JOINT CUSTODY & SHARED PARENTING 11, 12 (Jay Folberg ed. 1991).





Id. at 12-13.

ELEANOR MACCOBY & ROBERT MNOOKIN, DIVIDING THE CHILD: SOCIAL AND LEGAL DILEMMAS

OF CUSTODY (1992); MASON, supra note 35.

MACCOBY & MNOOKIN, supra note 71, at 284.

MASON, supra note 35, at 39-64.

WALLERSTEIN & KELLY, supra note 52, at 308-09.

Id. at 310.

600 PACIFIC RIM LAW & POLICY JOURNAL VOL. 20 NO. 3 changes to accommodate the child’s needs.76 However, families with abuse issues, intractable opposition to joint custody by both parties, or logistical issues that work against joint custody might not be appropriate. 77 Joint custody is not a fix-all solution that will make a divorced family whole, but it is an important legislative affirmation that both parents are equally responsible for their children after divorce.78 C. The Kyōgi Rikon System Is Open to Abuse Under Current Law While kyōgi rikon may be seen as the ideal of contractual and personal freedom, it allows for divorce without proper planning or protection. Often these simple divorce agreements are completed without any consideration for child support payments or visitation rights, resulting in low rates of payment and a loss of a sense of moral responsibility by the non-custodial parent.79 This laissez-faire approach to divorce also introduces problems of coercion, especially when there is a power imbalance between the parties.80 While a system has been established to prevent outright unilateral divorce against the will of the other spouse,81 there are many cases where one parent wants a divorce, and the other parent conditions their agreement on unfair concessions regarding custody, visitation, and child support.82 This creates the potential for one party to escape child support duties and gain other concessions that would otherwise not be allowed in a court-supervised dissolution.

Even when the parties make proper post-divorce plans regarding visitation, there is no way to enshrine this agreement in the divorce papers.83 Some divorce guidebooks recommend creating a separate notarized agreement to get around this deficiency. 84 However, enforcing these agreements still requires action by the family court, 85 and judicial enforcement power is often insufficient to force the noncompliant party to

–  –  –

abide fully by their agreement. 86 For example, court fines for noncompliance are capped at ¥100,000,87 and the court is not required to levy any fine given a finding of “justifiable cause” for noncompliance. 88 Courts are able to impose ongoing civil penalties against custodial parents who do not comply with visitation but are hesitant to use this tool out of a fear that it would impoverish the custodial household. 89 Not only does Japanese law allow divorce without proper planning, it is also ineffective at enforcing the agreements of parents who choose to create such an agreement.

IV. JAPANESE DIVORCE LAW NEEDS COMPREHENSIVE REFORM

Japan should reform its Civil Code to recognize visitation as a right for the noncustodial parent and allow parents to exercise joint custody over children. In addition, the kyōgi rikon system needs to be reformed to require the judicial oversight of parenting plans, and to create an effective mediation and enforcement system to resolve disputes. While these reforms target three separate areas of the law, it is important to pursue all of these changes as one comprehensive package. Part A will argue for changes to the Japanese custody and visitation laws. Part B will propose a series of reforms to the kyōgi rikon system. Part C will show how these three reforms are all necessary to effectively protect the rights of children.

A. Japan Should Support and Expand Efforts to Reform Its Visitation and Custody Laws Japan should create a rebuttable presumption for reasonable visitation between the child and the noncustodial parent that is sufficiently flexible to account for the particular circumstances of each family. This would help provide a greater sense of balance in children’s lives, and will keep custody disputes from devolving into a “winner take all” contest with the children caught in the middle. To be effective, a presumption for visitation should mandate reasonable visitation consisting of unrestricted contact at least two weekends per month unless one parent can prove that it would be against the Kaji Shinpanhō [Domestic Causes Inquiries Act], Law No. 152 of 1947, art. 15 no. 5, 6 (Japan);

Kawashima, supra note 64, at 6; Jones, supra note 14, at 248-49.

Approximately US $1200. As of May 10, 2011, the U.S. Dollar to Japanese Yen exchange rate was approximately 81 Yen to the Dollar. See Yahoo Finance, Currency Investing.

http://finance.yahoo.com/currency-investing (last visited May 10, 2011).

Kaji Shinpanhō [Domestic Causes Inquiries Act], Law No. 152 of 1947, art. 28 (Japan).

MINPŌ [CIV. C.] art. 414; MINJI SOSHŌHŌ [MINSOHŌ] [C. CIV. PRO.] art. 172; Jones, supra note 14, at 250.

602 PACIFIC RIM LAW & POLICY JOURNAL VOL. 20 NO. 3 welfare of the child for the noncustodial parent to be with the child in an unsupervised setting.90 These decisions must be made on a subjective basis in each case without entirely relying on unalterable schedules and guides.91 Japan should also create a preference for joint legal custody, while recognizing that joint custody arrangements are not appropriate for all families. A preference for joint custody does not rise to the level of a presumption, where joint custody is mandated unless one parent can prove such an arrangement would not be in the best interest of the child. However, it does create a broad policy assertion supporting joint custody arrangements and makes joint custody an accessible and encouraged post-divorce family arrangement. 92 This policy would ensure that both parents retain a legal right to remain involved in their children’s lives, while permitting the creation of individualized plans that can best protect the welfare of the child.

B. Kyōgi Rikon Reform Should Mandate Judicial Oversight and Parenting Plans The kyōgi rikon system would benefit greatly from judicial oversight.

This would allow a judge to look at the divorce terms and ensure that the terms are fair to all of the parties involved. Requiring parents with children to create a parenting plan is essential to this process because the plan could be used to enforce the custody and visitation reforms addressed above.

Requiring the parties in divorce to submit a detailed plan, especially with regard to their children, can reduce the potential for abuse in kyōgi rikon. The current system permits many divorces with no standing agreement on visitation or child support, creating the potential for further conflict and misunderstanding in the future.93 The parties should be required to mutually draft a parenting plan and submit it to the court along with their divorce petition.94 The judge would then be able to accept, reject, or modify the plan if it is incomplete or obviously unfair to one of the parties.95 The parenting plan must clearly establish each parent’s relationship with his or her children after divorce. These plans typically contain: 1) who will have custody and where the child will live; 2) when the child will see his or her parents; 3) who will pay what amount for child rearing; and 4) MACCOBY & MNOOKIN, supra note 72, at 288.

Younger, supra note 54, at 207-08.

EMILY M. DOUGLAS, MENDING BROKEN FAMILIES: SOCIAL POLICIES FOR DIVORCED FAMILIES:

HOW EFFECTIVE ARE THEY? 117-18 (2006).

Ueno, supra note 12, at 59-60.

Id.

Id. at 60 (judges will need additional training and guidance to help create a uniform standard for divorce).

JUNE 2011 DIVORCE AND THE WELFARE OF THE CHILD IN JAPAN 603

who will make decisions about medicine, education, and religion. 96 As detailed as this may seem, there are other jurisdictions that allow for much more complex plans, such as the State of Oregon, which allows for determinations such as holidays, vacations, telephone access, and methods for resolving disputes.97 These plans would not mandate shared parenting or joint decision-making but would require the parents to properly plan their post-divorce relationships.

Studies conducted in the United States show that parenting plans are very effective at facilitating post-divorce interaction.98 One of the earliest studies looked at a revised law in Washington State and found that parenting plans significantly boosted shared parenting and joint residential planning among respondents.99 A later Washington study, known as the Lye Report, found equal shared parenting agreements and shared decision making to be less frequent than the previous report, but recognized the value of the parenting plan itself and advocated for more detailed and structured plans containing a sturdy conflict resolution mechanism.100 While these studies were not uniform in their results, they both show the value of a strong parenting plan that can serve as a baseline for future interaction.



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