«DIVORCE AND THE WELFARE OF THE CHILD IN JAPAN Matthew J. McCauley† Abstract: Current Japanese legal institutions are ill-equipped to resolve the ...»
Problematic enforcement mechanisms must be reformed to make parenting plans effective. Even if parenting plans were to become mandatory in Japan, it would do little good if they were not accompanied by a stronger enforcement mechanism. This needs to have a dispute resolution mechanism built into the document itself and have the backing of legal institutions that are willing to hold both parties to their agreement.101 These institutions need to be able to serve as an impartial third party mediator that will work with the parents to resolve disputes and issues of noncompliance as well as provide a stronger legal remedy in case this mediation fails.102 While there have been no thorough studies in the area, mediators have proven to be effective at defusing high-tension situations. 103 Requiring judicial affirmation and parenting plans, and actively enforcing agreements DOUGLAS, supra note 92, at 68.
E.g., OR. REV. STAT. § 107.102 (1997).
DIANE N. LYE, WASH. STATE GENDER AND JUSTICE COMM’N AND DOMESTIC RELATIONS COMM’N,
WHAT THE RECORDS SHOW: AN ANALYSIS OF RECENT PARENTING PLANS IN WASHINGTON STATE, (1999)(this is the most recent study on point); Jane W. Ellis, Plans, Protections, and Professional Intervention:
Innovations in Divorce Custody Reform and the Role of Legal Professionals, 24 U. MICH. J.L. REFORM 65 (1990).
Ellis, supra note 98.
LYE, supra note 98, at v-vi, 3-42.
DOUGLAS, supra note 92, at 75-77.
604 PACIFIC RIM LAW & POLICY JOURNAL VOL. 20 NO. 3 would go a long way toward making kyōgi rikon more equitable for everyone, especially young children.
C. Future Reforms Need to Address All Three Areas of Custody, Visitation, and Kyōgi Rikon With the help of citizen groups and private activists, the movement for joint custody and visitation rights has finally started to gain traction among Japanese policymakers.104 On January 29, 2010, Takao Tanase, a lawyer and law professor who is actively advocating for legal reform of Japanese visitation and custody laws, brought a proposal before the Japanese House of Representatives for special legislation that would create a firm right to visitation, establish a joint custody system, and require divorcing parents to create a parenting plan.105 Following Mr. Tanase’s proposal, the Committee on Judicial Affairs has debated issues of custody and visitation on several occasions. 106 Speakers at these hearings raised many concerns about the current system, looking at the issue both domestically and internationally.107 While there was a relative consensus that visitation laws were ripe for reform, Justice Minister Chiba shared some significant reservations toward adopting a joint custody system.108 Her concerns were largely based on the argument that sole custody was better for the welfare of the child because it helped provide stability, and that most of the issues surrounding parental alienation can be solved through stronger visitation rights. 109 While the simple solution proposed by Minister Chiba may sound appealing, reform of the visitation system is not enough. All three relevant areas of the law, visitation, custody, and kyōgi rikon need to change to adequately protect the parent-child relationship after divorce.
An easy way to understand the integrated nature of these reforms is through a hypothetical family. This family is composed of a working father, a stay-at-home mother, and a young son. The father often does not come home until late at night, and the father’s and mother’s constant fighting leads See FATHER’S WEBSITE, http://www.fatherswebsite.com/; KYŌDŌ SHINKEN UNDŌ NETWORK, http://kyodosinken.com/.
TAKAO TANASE, RIKONGO NO KYŌDŌ YŌIKU NARABI NI OYAKO KŌRYŪ WO SOKUSHINSURUHŌRITSU (DAI 3A AN) (2010).
COMMITTEE ON JUDICIAL AFFAIRS, 174TH DIET, MINUTES, 12th Meeting (Mar. 9, 2010), 21st Meeting (April 16, 2010), available at http://www.shugiin.go.jp/index.nsf/html/index_kaigiroku.htm.
COMMITTEE ON JUDICIAL AFFAIRS, 174TH DIET, MINUTES, 12th Meeting (Mar. 9, 2010), available at http://www.shugiin.go.jp/index.nsf/html/index_kaigiroku.htm.
JUNE 2011 DIVORCE AND THE WELFARE OF THE CHILD IN JAPAN 605to a straining of their relationship and eventually divorce. Under the current law, the statistics show a high likelihood that the mother would get sole custody over their son, and that the father would only be able to visit his child about one day per month.110 If the visitation system alone was reformed, as Justice Minister Chiba suggested, the father would probably lose all parental rights and responsibilities, and the son would lose the security and stability of retaining both parents under the law. In addition, the parents would still not be required to make any sort of agreement on how they will continue to care for their child following divorce, and a judge would never have an opportunity to verify that their agreement conforms to the standard of reasonable visitation.
If the custody system alone was reformed, the father would not have any guaranteed right to joint custody or visitation. There is still a chance that the father could lose contact with his son if the mother is strongly opposed to a joint custody arrangement. Also, without reform of kyōgi rikon, a judge would never have the opportunity to verify whether the rights of both parents and their son are all sufficiently protected through an enforceable parenting plan.
If the kyōgi rikon system alone was reformed, the courts would likely be hesitant to award the father anything more than one day of visitation every month, and could even deny visitation if the mother was firmly opposed. This option also fails to provide a way for the father and mother to share custody, even if the parents desire to share custody over their son.
This might even drive a larger wedge between the father and mother if they both try to claim custody over their son.
The Japanese Diet111 has shown an interest in starting the process of reform, but current proposals look to be too limited in scope. In October 28, 2010, the House of Representatives announced it had reached a nonpartisan agreement to draft legislation protecting the visitation rights of the noncustodial parent.112 However, this legislation has yet to be drafted, much less passed into law, and the announcement only talked about visitation reform without addressing joint custody and kyōgi rikon issues. While this 2009 COURT STATISTICS, supra note 24.
The Diet is the legislative branch of the Japanese government, and is composed of the lower House of Representatives and the upper House of Councilors. NIHONKOKU KENPŌ [KENPŌ] [CONSTITUTION], arts. 41-42 (Japan).
Chotōha Giinga Shinhō Jyunbi—Rikonshita Chichioyani mo Kodomo Awasete [Bipartisan Lawmakers Preparing Legislation to Allow Divorced Fathers to Visit Their Children], THE SANKEI SHINBUN (Oct. 29, 2010), http://sankei.jp.msn.com/politics/situation/101029/stt1010290130000-n1.htm (last visited Jan. 4, 2011).
606 PACIFIC RIM LAW & POLICY JOURNAL VOL. 20 NO. 3 is certainly a step in the right direction, effective reform will need to be comprehensive.
This comment has made three proposals to reform the Japanese family law system relating to visitation, custody, and the kyōgi rikon divorce system. These three reforms rely on each other to form a comprehensive whole. Japanese lawmakers have already taken the first few steps down this path, but change will be long and difficult. Any significant change will need to overcome tradition and decades of legislative inaction. Social attitudes will need to evolve with the text of the law itself, and this will require tailoring solutions to specific Japanese social considerations.
Successful reform will not be measured by the text of any new law but rather in that law’s ability to protect the relationship between parents and children.113 The proposals in this comment are not the only way forward, and it is important to consider all options when creating new standards for divorce, custody, and visitation. However, research establishes the fundamental importance of the parent-child bond,114 and any new law must take all reasonable measures to protect this relationship with both parents.
Reform must be based on this fundamental premise if it is to spare the next generation of children from inadequate protections and allow them to receive stable and continuous love and care from both of their parents.