Child Custody and Visitation

Divorce and Child Custody Issues in the Japanese Legal System

Posted on February 7, 2012. Filed under: Child Abduction, Child Custody and Visitation, Divorce, Domestic Violence (DV), Hague Convention | Tags: child abduction, Colin Jones, custody, divorce, DV, Hague |

Colin P.A. Jones
Professor, Doshisha University Law School

Introduction

Professor Colin P.A. Jones
(Photo by Shinchosha)

Japan has developed a growing reputation as a haven for international parental child abduction. Major media outlets in the United States and other countries have brought attention to a number of recent cases of children being unilaterally removed by a Japanese parent from the United States before or after divorce, often in violation of American law and court orders.

Attempts to achieve the return of children taken to Japan through the Japanese legal system tend to be unsuccessful. As a result, some children who were born and raised in the United States have lost all contact with an American parent and other relatives, American friends, and the American part of their heritage as a consequence. The apparent lack of legal remedies for abduction in Japan is due to a number of factors that are discussed in more detail below.

Child abduction as more than just an “international” problem

From the outset it is important to understand that most of the factors which prevent the return of children taken from other countries also affect cases arising entirely within Japan, including some involving Americans married to Japanese nationals and living in Japan, and even the occasional case where both parents are foreign residents of Japan. In these strictly domestic cases also, marital breakdown all too often results in parents losing all contact with their children, notwithstanding the involvement of Japanese courts.

In other words, even though international cases tend to receive more publicity, they merely reflect structural issues in the Japanese legal system which have the effect of limiting the legal remedies of Japanese and non-Japanese parents alike. Thus, just as U.S. and other diplomats have sought change in the way cross-border abductions are dealt with by encouraging Japan to join the Hague Convention on the Civil Aspects of Child Abduction, a variety of Japanese parents’ rights groups have been seeking better protection of the parent-child relationship after divorce by lobbying for amendments to Japanese family law.

Despite the catastrophic earthquake and tsunami of March 11, 2011 and subsequent nuclear crisis in Fukushima, there are encouraging signs that Japan will soon move towards ratifying the Hague Convention. In May of 2011 the Diet also made encouraging amendments to its domestic laws relating to visitation after parental separation. Since these amendments have not yet taken effect (and may have a limited impact), this article will discuss both the law as it was – and had been for decades, as well as the nature of these changes.

The role of law in Japan

The Japanese legal system is based heavily on foreign models – German and French codes and institutions in many instances, but the United States as well in the case of its constitution and many areas of business law. Indeed, it is possible to describe Japanese family law and how Japanese courts resolve child custody issues in terms that make it seem quite similar to the United States or other Western countries. However, the law in Japan is much more “top down” than it is in the United States, where many important doctrines have been built through the ground up through litigation. By contrast, in Japan the law is more likely to be a medium for expressing and exercising authority, and judges (authority figures themselves) are less likely to question the exercise of that authority. The top-down character of Japanese law can be seen in statutes and procedural regimes which preserve maximum flexibility for judges and other government officials in terms of what they may do, while limiting the range of things that they must do.

Is parental child abduction a crime?

U.S. citizen parents whose children who have been abducted to Japan are likely to be told by Japanese officials that under Japanese law it is not a crime for parents to “abduct” their own children. However, there have been instances of Japanese and foreign parents being arrested, even convicted – for kidnapping their own children. Article 224 of the Japanese Penal Code describes the crime of “abduction of a minor” in very sparse terms: “[a] person who kidnaps a minor by force or enticement shall be punished by imprisonment with work for not less than 3 months but not more than 7 years.” An American lawyer reading this would probably seek more information on how the terms “kidnap,” “force,” and “enticement” are interpreted and would probably look to case law for guidance. But court precedents are not likely to be as useful for interpreting statutes such as this, at least not to the same degree as they would in the United States.

As a result, both the characterization of parental abduction as a non-crime and the arrest of some parents for criminal abduction can co-exist as “correct” interpretations of Japanese law. An abduction which disrupts public order (a father grabbing his children off the street) may be treated as a crime, while those which do not (a mother getting on a plane or a train with her children to go live with her parents, or merely refusing to return to the United States after a visit to Japan with the children) probably will not. Japanese law enforcement authorities have a basic policy of not getting involved in “civil disputes” but also wide discretion in deciding if a particular dispute is a civil one or not, meaning that the most important determination about whether a particular case of abduction is a crime or not may be made at the police station rather than the courthouse.

Custody determinations as an administrative disposition

Similarly, with respect to decisions regarding parental authority, custody, and visitation involving children in divorce, there are no statutory guidelines which a court must follow, such as the principle found in U.S. law that frequent and continuing contact between a child and his or her parents after they separate is presumed to be in a child’s best interests. Furthermore, since there is also no Japanese constitutional jurisprudence establishing a fundamental interest in having and raising children or otherwise recognizing a constitutionally-protected dimension to the parent-child relationship, decisions about children made by Japanese judges are essentially a form of administrative disposition made in the absence of law. As discussed below, many of the most important decisions a judge may make about children are likely to be rendered in the form of “decrees” following non-public, non-trial proceedings.

Japanese family court judges thus have tremendous discretion when it comes to making decisions about children and may do so by, for example, completely reversing a foreign custody, refusing to award any visitation to a non-custodial parent, awarding visitation for only a few hours once a year, or ordering the custodial parent to send a few photographs of the child every year in lieu of visitation.

Divorce and child custody as part of a consensual process

In Japan, both divorce and what happens to the children afterwards are presumed in the first instance to be determined through consensual arrangements. Japan’s Civil Code provides for divorce by agreement with judicial divorce being available only when the parties cannot agree and a limited range of grounds for divorce are applicable. Furthermore, unlike in the United States where even a consensual divorce involves court filings and possibly a judicially-approved parenting plan or separation agreement if children are involved, a Japanese cooperative divorce is accomplished by simply filing the relevant paperwork with a local government authority which will reflect the change in marital status and allocation of parental responsibility in the parties’ family registry. Since approximately 90% of divorces are accomplished through this process, courts only become involved in the small minority of cases where parties cannot agree on a cooperative divorce or where there is a dispute over children or other matters arise after divorce, including situations where one parent abducts the child or refuses to allow visitation after divorce.

Under Japanese law, parties seeking a judicial divorce or other judicial relief relating to child custody must first attend family-court sponsored mediation. Mediation sessions take place in a family court mediation room in front of a mediation panel composed of a judge, two mediators chosen by the court, and court personnel. Mediation continues at a pace of about one session a month until the parties agree on a result or the judge decides that further sessions are pointless. Although the court takes the lead in administering the mediation, its primary purpose at this stage is to encourage the parties to agree on a result.

Approximately 8% of Japanese divorces – most of those which are brought into court – are achieved through the mediation process. The remaining 2% are either judicial divorces resulting from litigation commenced after mediation has failed, or divorces by settlement after such litigation has commenced but before a divorce judgment. Therefore, one aspect of divorce proceedings that may be confusing is that there are a variety of procedures which vary depending upon the scope of the court’s involvement and responsibility. There are cooperative divorces which involve no court action whatsoever, mediated divorces and divorces by settlement where the court is involved but not responsible for the result, and judicial divorces where the court is involved and responsible for the final result (technically there are two additional types of divorce which are rare and not discussed in this article). Judicial divorces account for only about 1% of all divorces. These differing procedural regimes are also relevant to child custody proceedings.

Because Japanese law provides for court proceedings which in many cases lead to a result for which the court is not responsible, there may be a significant gap between what U.S. citizen parents expect from family courts and what family courts consider their role to be. A party seeking the return of or at least visitation with a child usually wants the court to “do something” as soon as possible. Since most cases are going to start with mediation, however, the family court may view its role primarily as one of encouraging the parties to agree upon a mediated result. Furthermore, since at the mediation stage the court is supposed to be playing only a supporting role, it may be reluctant to provide interim remedies (including ordering the handover of the child) unless they are clearly in the best interests of the child.

Other aspects of Japanese family law may also come into play at the mediation stage. Although divorce is exceptionally easy in Japan so long as both parties agree to it, obtaining a litigated divorce unilaterally over the objections of one party is exceptionally difficult and time consuming. In addition, just as there is little formal law specifying what should happen to children after their parents separate, Japan’s Civil Code is similarly sparse when it comes to providing for property distribution, alimony, and child support. Accordingly, courts have developed a variety of doctrines to protect the financially weaker party from being divorced on unfavorable terms.

A number of amendments to the Civil Code were made in May 2011, though it is unclear what effect they will have on current family court practice. First, the amendments make it easier for public authorities to temporarily suspend parental authority in cases of child abuse and neglect. Under prior law the only remedy was permanent termination of parental authority. Second, under the amended law, parents seeking a cooperative divorce will be required to provide for visitation arrangements and other forms of contact as well as allocate child-rearing expenses, in each case giving priority to the welfare of their children. If they are unable to do so then a family court may make the determinations in their place. While it may seem a minor change, the fact that visitation is now even mentioned in the Civil Code could be said to represent significant progress, since before this amendment it was nothing more than a judicially-created disposition.

However, it is not clear that courts (as opposed to parents) are required by the new law to make decisions in the best interests of children, or that visitation is presumed to be good for children. Combined with the addition to another part of the Civil Code which imposes upon all parents a statutory duty to act in the best interests of their own children, it is not clear whether family courts will regard the new amendments as being anything other than a codification of their existing practice.

Parental authority and custody

Although determinations relating to children are generally made in the context of divorce proceedings, an important procedural difference emerges if mediation fails. To understand this, however, it is necessary to briefly review the concepts of parental authority and custody. Under Japan’s Civil Code, married parents jointly exercise parental authority over minor children. Parental authority includes both the rights and duties of the parent relating to the care and upbringing of their children, but also the management of the children’s property and the taking of legal actions (such as applying for a passport) on their behalf, or even consenting to the child’s adoption. Because parental authority can be relevant to commercial transactions and dealings with government agencies, it can be confirmed through the family registry system. An extract from a child’s family registry may be required for passport applications or other dealings where proof of the parent-child relationship and the parental authority of the person making the application are required.

Under the cooperative divorce regime, parents simply make a notation on the divorce form as to which parent will retain parental authority over which children after divorce. One significant limitation, however, is that Japanese law does not allow for the formal continuation of joint parental authority after divorce even if both parents agree to it.

Procedurally, court involvement makes custody and parental authority more complicated. This is because it is possible for courts to separate the “care and custody” element of parental authority from the property management/legal representative aspect and award them to different people. Thus, a mother could be awarded custody over the child, who she would live with and raise, while the father would be awarded parental authority (minus the custodial element), which though being reflected in his family registry, would be limited to only the authority to manage the child’s property and engage in legal acts in the child’s name. In reality, this type of split custody is rare. The true significance of a court’s ability to deal with these two elements of parental authority separately is more important for procedural purposes rather than the end result.

Judicial determinations of parental authority are generally only made (or changed) by courts at the time of a judicial divorce following a trial. If divorce mediation fails, the onus is on one of the parties to proceed with divorce litigation. If neither does so the parties will simply remain married under the law but live apart. Parental authority will nominally remain with both parents.

However, with respect to matters relating to the custody portion of parental authority ( i.e., who will live with and raise the child, visitation, child support payments, and whether a taken child should be returned), if mediation fails the court will automatically proceed with making a determination, even if neither party proceeds with divorce litigation. These determinations may also be made (or changed) by courts after divorce, in the case of disputes over visitation after a cooperative divorce, or when a child is abducted to Japan after a divorce has taken place in the United States or elsewhere.

Procedurally this is significant because to the extent they are decided by a judge at all they are likely to be decided through the issuance of a judicial decree after mediation fails. Decrees are issued through “non-trial” proceedings, with very loose procedural and evidentiary requirements. Accordingly, what for most parents is the most important part of the proceedings – the part in which the fate of their children is decided – involves a process which seems like a trial (since there is judicial involvement) yet lacks many of the procedural or evidentiary protections that the average person is likely to expect from a trial.

Decrees can be appealed, and if the case advances to divorce litigation, a judge granting a judicial divorce can also make decisions relating to children ancillary to the divorce. In reality, however, it is probably unlikely that judges will second guess a prior decree on custody issues absent blatant mistakes or a change in circumstances.

Limited enforceability

In cases involving child abduction or interference with visitation, even a complete “win” in court may prove meaningless. Japanese civil law struggles with the enforcement of judgments in many contexts, but it is a problem that is particularly evident in disputes over children. Japanese courts lack marshals with police-like powers that can facilitate enforcing civil judgments. Similarly, Japanese judges do not have broad powers to sanction or imprison recalcitrant parties for contempt of court. Nor is there a mechanism for courts to require the police to become involved in such cases.

The first step in enforcement of a family court decree may be for a family court to issue a “compliance recommendation.” This may involve further inquiries by a family court investigator to confirm the circumstances behind the refusal of the parent having custody to cooperate with visitation. Even if a compliance recommendation is issued, however, there are no sanctions for non-compliance. In fact, compliance recommendations are considered to be a form of casework that is an extension of the courts’ role as a social welfare institution rather than a judicial one. As such, they have no legal force whatsoever.

In terms of actual legal remedies for enforcement, Japanese civil law does not contain any provisions which deal specifically with enforcing orders relating to the compulsory transfer of a child from one parent to another. One remedy is for the court to impose a non-penal monetary fine on a party who refuses to comply with a court order to return an abducted child or cooperate with visitation. However, this type of “indirect enforcement” may be of limited efficacy against parties who do not have a regular income or identifiable assets subject to forfeiture.

In the case of a court order for the return of a child who is young enough that they can be deemed not to have the capacity to form their own intent, it is also possible to seek “direct enforcement” of the order. This involves a district court bailiff attempting to physically accomplish the return of the child. Although the bailiff may request police accompaniment if there is a fear that the abducting parent may become violent, the police will not get involved if there is no crime. The bailiff himself does not have the power to arrest a non-cooperating parent. Thus, although direct enforcement is sometimes successful, it can also sometimes be frustrated by a taking parent through the simple expedient of stubbornly refusing to let go of the child or even just hiding.

Failing any of these remedies, the final arrow in the judicial quiver is habeas corpus. Based on the ancient common law remedy for unlawful detention by government officials, habeas corpus in Japan is used to order an abducting parent to bring the child to court for an inquiry into why they have been “detained.” A parent who refuses to follow a habeas corpus summons and bring an abducted child to court may be subject to imprisonment and/or penal fines. It is thus the only remedy for abduction available to the judiciary where there is the possibility of criminal sanctions for non-compliance.

While it is not uncommon for left-behind parents to immediately file for habeas corpus for children who have been taken to Japan, there do not appear to be any cases where a Japanese court has found the detention of a child to be “significantly unlawful,” even if it involves the violation of a foreign court order or has resulted in criminal proceedings in that country. There have been a number of cases where Japanese courts have both recognized the validity of a foreign court order awarding custody to the foreign parent while refusing to grant habeas corpus relief.

Domestic violence, legislative amendments, and the Hague Convention

The Japanese government is often criticized for appearing to drag its feet on adopting the Hague Convention. As the above discussion shows, however, meaningful implementation of the convention would involve significant amendments to Japanese domestic law. That this process may require a wide-ranging debate is understandable in a democratic society such as Japan.

In the course of the debate over the Hague Convention, one concern that has been expressed repeatedly is how to deal with situations where a Japanese mother residing abroad unilaterally returns to Japan with her children out of fear of domestic violence in the United States or other countries. While domestic violence is a legitimate policy concern, it is also an issue that can be assumed dealt with adequately through the legal system of the United States or other Hague Convention signatories. While it would be easy to view the concerns about domestic violence as primarily reflecting a lack of faith in the judicial systems of potential treaty partners, domestic violence is also controversial in strictly domestic custody cases. Japanese law defines “domestic violence” in exceptionally broad terms and it is often interpreted even more broadly so that not only physical violence, but verbal abuse, psychological “violence,” and even “economic violence” is sometimes included.

It has been suggested by some in Japan that the Hague Convention be signed, but with implementing legislation providing for exceptions that would prevent the return of children in cases involving domestic violence or abuse. The Japan Federation of Bar Associations has gone further in proposing that any legislation implementing the Hague Convention, if adopted, not only prevent return in such cases, but also if the taking parent would be subject to criminal prosecution if they returned with the child. Given the expansive definition accorded to domestic violence and abuse, it seems possible that virtually any instance of a child being taken to Japan could be characterized so as to fall into this exception. But this involves speculating on legislation that does not yet exist.

Going forward

As noted in the introduction to this article, recent events in Northeastern Japan will have dramatically shifted the focus of policymakers in Japan. What can be expected in the immediate future in terms of the Hague Convention and further changes to Japanese family law remains to be seen. But natural disasters notwithstanding, Japanese people will continue to get married, have children and, in some cases, get divorced. So long as no changes are made, Japan will also continue to be regarded as a haven for abduction. This would be a sad thing since it is ultimately children – the ultimate resource in Japan, the United States, and everywhere else – who will continue to suffer.

Colin P.A. Jones is a Professor at Doshisha University Law School, a Life Member of Clare Hall, University of Cambridge, and has been admitted to the bar in New York, Guam and the Republic of Palau. He received his A.B. from the University of California at Berkeley, an LL.M. from Tohoku University, as well as a J.D. and LL.M. from Duke University School of Law.