Why do custody fights happen? Can’t they be avoided?
1 Background
Battles for children, custody battles are most difficult and stressful for the parents involved in family disputes. It is very hard for lawyers working for them especially in Japan, where the sole custody is the only legal solution in the end after divorce.
They know that the only one will be granted and they want to win.
It is natural that parents want to win the battle.
Even if a couple cannot get along for some reason, the children are very important for each parent.
For children, the best is to be loved by each parent, but it is difficult to build a cooperative parenting system if the husband and wife are on bad terms with each other.
Especially in Japan, one parent will be given the custody or shinken (parental rights) under the current civil code of Japan. The cooperative parenting system is not, unfortunately, expected in the legal system and there is no real legal or public supports for parent to build up such system for children.
Parents who lose their parental rights have the right only to meet their children, visitation rights, but there is a lot of legal uncertainty regarding such visitation rights. Basically, the courts think that parents may meet their children to support the child’s rights to know and meet their parents. Although the common form of parental rights after divorce is joint custody system, in most of developed countries, Japan has just formally started a study group on joint parental authority after divorce.
As a result, the custody battles tend to intensify, reflecting the parents’ feelings that their parental fights may be lost and their relationships with their children may be cut off. However, long conflicts often hurt children’s feelings, making it more difficult for parents to find a reasonable solution.
2 How is the parental rights given to one parent in Japan?
In the case of divorce by agreement, one of the parents must be agreed as the one holding parental rights (Please refer to article 819, para.1 of the Civil Code of Japan). Divorce cannot be allowed unless the person with parental authority is stated in the divorce notification after deciding this.
If such agreement cannot be reached, the family court may make a ruling in lieu of such agreement.
It is prescribed by Article 819, para.5 of the Civil Code of Japan.
The real legal procedure is as follows. When the divorce mediation is tried by one party and cannot be concluded, the family court will be able to give the ruling in the divorce trial (See article 819, para.2 of the Civil Code of Japan and Article 284 of Domestic Case Procedures Act of Japan). However, in actual disputes, disputes over the custody have already been settled by the legal procedure during the separation.
In addition, there are many cases where a mother or father leaves the home with the children to start the separation, and in such a case, legal dispute commence in such a way that the parent who has been left behind try to get the children returned by the court order.
This is famous Japanese custody battle which may look as chaotic situation without reasonable legal treatments. Child Abduction in Japan is normally handled by the family court not by the police. The child abduction in Japan is deemed not to constitute a criminal offense if the actor is one parent.
In another typical form, a father or mother is driven out of the matrimonial home and is not allowed to reenter their by the lock-up, and thereafter cannot see the child. They often try to recover the physical custody by a court order.
3 Who is granted the parental authority? The mother only?
In 2013 data, 84 % of cases were the mothers who get the parental authority of all the children. There were also 3.6% of unusual cases in which multiple children were divided between parents. (Source: Statistics of the Ministry of Health, Labour and Welfare). So, there are cases where the fathers are entitled for the sole parental rights.
4 How is the parental rights or custody legally granted to one parent?
The Civil Code of Japan stipulates in Para 1 of Article 819, that when a parent divorces by agreement, they must agree that either parent will exercise the parental rights. And the para 2 of the same article states that the Family Court will decide if it is not agreed by the couple to be divorced.
Accordingly, only one parent can exercise the parental rights under the current Japanese law.
However, as to the Custody, it is possible for the couple to agree that one parent will hold the custodial rights and the other will exercise the parental rights.
The relevant article 766 is provided as follows:
Article 766
Para 1 If parents divorce by agreement, the matters of who will have custody over a child, visitation and other contacts between the father or mother and the child, sharing of expenses required for custody of the child and any other necessary matters regarding custody over the child, shall be determined by that agreement. In this case, the child’s interests shall be considered with the highest priority.
Para 2 If the agreement set forth in the preceding paragraph has not been made, or cannot be made, the matters set forth in the preceding paragraph shall be determined by the family court.
Therefore, the custodian can be determined by agreement separately from the parental rights holder, but this is not what must be done. Most couples only decide who will hold the parental rights upon divorce, which means that the parental rights holder will exercise all the rights including custodial rights. However theoretically, they can agree that father exercise the custodial rights and mother will exercise the parental rights. As to visitation and child support, quite many Japanese parent separated from the children do not conduct any visitation and they never make agreement on the visitation.
5 When can a parent be appointed as custodian by any court order?
In the order of a divorce trial, normally one parent is given the parental rights and no order is given as to the custody, which means that the person given the parental rights will exercise the custodial rights as well. This way, joint custodial arrangements are not normally achieved in Japan. However, if parents want it, it is possible to realize joint custody by such agreement entered by the divorcing parents.
If a husband and wife live separately and there is a dispute over the custody, the para 2 of article 766 is normally applied mutatis mutandis by the relevant court. In legal practice in Japan, the majority of cases in which a person is given the custodial rights by court order, are cases in which a husband and wife are separated and one parent live with the children.
Since the divorce trial will conclude who will be given the parental rights, it may be unnecessary for the court to give the custodial rights to one parent but often, the court gives it if the parent living with children apply for the order on the ground that the other wants the custody and therefore, there is a dispute between the separated parents, who cannot be cooperative and the court must appoint the custodian during the separation.
<Judicial precedents regarding custodial rights before divorce>
In one case as to the custody of a child of separated parents, the High Court concluded that the custodian should be appointed by the court, because “there is a high necessity for the court to participate in custodial issues since it is directly related to the welfare of the child, and there is a conflict between the parents regarding the fundamental matters, and it takes some time for the conclusion of pending divorce trial is finalized (January 22, 2007, Hiroshima High Court). This is the mainstream attitude of the current Japanese court of cases over the custody battles, including those happening after the child abduction.
On the contrary, there was a case in which parental authority was contested in divorce trial proceedings and the mother wanted to be appointed as a custodian during separation, and the relevant High Court found that there is the possibility that the decision of the custodian during separation could be made inconsistent with the decision by the divorce trial and that, designation of a custodian during separation should be made, only when, from the viewpoint of the welfare of the child, the court cannot wait for the outcome of the divorce trial (November 27, 2008, Fukuoka High Court) .
6 Will Japanese family court give, upon divorce, the custodial rights to one parent when the other is granted the parental rights?
Upon divorce by divorce trial, the person with parental rights will normally have the custodial rights but in exceptional court cases, the separation of parental authority and the custodial rights are achieved.
Then, the person who has parental rights has the right to administer the property of the child, and the custodian has the rights to live with the child and give the daily care. However, the scope of parental rights are not very clear under the Civil Code of Japan. Such cases are very rare.
If the joint custodial arrangements can be agreed by parents, it may be a good result that one has the parental rights and the other custodial rights, recognizing that both parents are jointly responsible for upbringing of the child. However, in cases where an order is issued, the ex-husband and wife often face severe conflicts and are unable to raise their children in a cooperative manner. Therefore, majority of current judges would not deem it appropriate to give the custodial rights to one parent who does not hold the parental rights.
If the parents look cooperative, it is possible to settle in the middle of the divorce trial and draw up a record of settlement in which the joint custodial arrangements are stipulated or the parents can utilize the Japanese mediation at the family court to get divorced by mediation and draw up a record of conciliation.
Such amicable resolution is useful for children because such parents will be able to build a system in which they cooperate for the interests of children.
In some cases, this method is used as a compromise for serious custody battle, but if they are not ready for the cooperation, further conflict may arise, for example, because important matters cannot be discussed between them. Accordingly it is necessary to devise ways to prevent the recurrence of conflicts, such as utilization of support from NPOs or some ADR method. Unfortunately the Japanese Family Court may not have the function to intervene in such conflicts since the joint custody is not legally set out in the Civil Code. Fathers and mothers, if joint custody is agreed, will need to forget the past and communicate with the ex-wife or husband, effectively to achieve the common goal.
< Precedents of Japanese Family court as to appointment of custodian separately from the parental rights holder>
Case Study of Tokyo High Court, issued on September 6, 1993
The older daughter was 9 years old, the son was 7 years old, and the younger daughter was 3 years old. The Family Court found it desirable to form a cooperative relationship when parents are able to work together in order to develop the sound personality of minors. This was the case in which the mother was living with minors and separated from the father. On March 31, 2005, the Family Court ruled that parents could do so, and that mother was granted the custodial rights and father was granted the parental rights of two children of three.
However, in the appeal, the High Court found that, even if the parents are divorced, it may be appropriate to divide the parental rights and custodial into two parents for the purpose of creating a sound upbringing of the minors. However, in view of the nature of the two parties and relations thereof , it will be hard to recognize that it is appropriate to separate the right rights of custodian from the parental rights and grant it to the appealer who should be untitled to the full parental rights. As already recognized, the relationship between the appealer (father) and the minors is good at present, so even if the appealer is not granted such rights, it is considered possible for him to contact the minors and maintain a good father-child relationship through the contact. The appealer (the father) was not granted the parental rights and the mother was granted it.
The above case can be disappointing to the readers since the high court turn down the Family Court decision which believed that they would be able to cooperate to raise the children.
However, in this case, the father’s past violence against the mother had an adverse effect on the children, and it may have affected on the high court outcome that the father did not pay appropriate maintenance to the mother for his high legal income.
Therefore, there seem to be some possibility that the order of the above by the family court may be issued under certain circumstances. It seems desirable that a decision should be flexible and does not uniformly grant parental authority to one side.
The current legal system in Japan, however, considerable number of couples can form cooperative relationships but the cases handled by the court in the trial procedures are highly conflict and the Japanese court is reluctant to issue the order in which some cooperation is expected to comply with since the court in general, tends to like to end the disputes by the ruling.
Case Study of Sendai High Court, issued on February 27th, 2003
In this case, the father had parental rights of a 6 years old girl and a 3 years old boy by divorce agreement, but the mother was living with and caring them.
The Family Court dismissed the petition for the change of the parental rights and give the return order the father.
However, the High Court made a ruling that the petition to change the parental rights holder can be the petition to appoint as custodial rights holder and the mother should be therefore appointed as the custodian due to the children’s emotional stability and the father should contact the children.
7 What criteria do the courts use when ruling parental rights holder and custodian?
In many cases, parents living separate from the children apply for the appointment as a custodian, or custody holder.
Since he or she wants to live with the children, , such petition is filed together with the petition to request for return of the child.
If you are awarded the custody, the child will be ordered to be return to you.
In this type of custody battle, provisional order prior to the ruling will be necessary since the child return must be realized as soon as possible for the interests of the child. So such petition is filed at the same time.
In such case,, the procedures are normally developed in a hurry, but the judge deem that there is such need for the quick procedure the petition for the provisional order will be tune down.
Sometimes, the provisional riling is issued at the same time as the ruling of the merits. Merits are under this circumstances, cases for the return and appointment of custodian.
The court therefore often rules the appointment of custodian if the petitions are filed before the divorce trial, or the parental rights holder if the divorce trial is heard in front of it as the case may be.
When the custodian is appointed before the divorce trial ruling, you can again contest the parental rights in the divorce trial but since the children will be living with the other parent for some time, it would be extremely hard to obtain the ruling to be granted the parental rights, since the court would not think it good for the child to change the residence many times,
When the parental rights or custodian are the legal issue, the court will consider variety of matters relating to the parent and the child evaluating importance of them.
The paramount matters is always “the interests of the child.” Teehe interests of children however, differ from those of children three years old to those of ten years old, and it is not easy for the court to understand the characteristics of each family and parties to conclude the ruling.
In many cases, the husband and the wife are fighting each other for the parental rights which cannot be jointly exercised in court, and both of them have strong affections on the child and are appropriate parents who can raise the child properly. The court evaluation regarding the parenting often conclude that both of the mother and father are eligible for raising the child with parental rights..
Nevertheless, under the Civil Code of Japan, only one parent can obtain parental rights at the time of divorce, so the court cannot divide. In addition, Japanese court is reluctant to give a part of custody to the other parent unless the parties agree to such arrangements. .
Most of the work regarding who is the right parent to be entitled the parental rights is done by family court investigators, chosakan, who compile it into a report. Tthen
The judge reads it and reach his or her conclusion but the report is extremely influential to the conclusion.
The key matters related to the parents to decide on the parental rights holder or custodian
・ Ability for the care
・ Who was the main care taker (who had been taking care of the child mainly)?
・ Emotional connection with the child and affection for the child
・ Parent’s employment status and economic strength
・ Parents’ health, personality, and attitudes toward living
・ Has there been any violence or abuse?
・ Living environment and childcare environment
・ Is assistance to the child care by some other person necessary?
・ How much depending on the assistant?
・ The illegality of the commencement of separation (if the child was abducted by violence or fraud, etc. or any other wrong activities)
・ How friendly can she or he be to the other parent or acceptability of the visitation by the other??
With regard to violence and abuse, since the cases are operated by confrontational legal structures, the parties often assert that the other party has committed an abusive act. However, there is often no evidence, and such action is not found by the court.
The key matters related to the child to decide on the parental rights holder or custodian
・ Age and gender of the child
・ Stage of physical and mental development
・ The adaptation to the new environment
・ Continuity of the environment and adaptability to changes in children
・ Child’s will and emotional links between the child and parents or related relatives
・ Relationship with brothers and sisters
Such matters related to the child will also be examined by the interview of the child and other related parties and the prepared written statements.
The parent is normally requested to prepare a written statement regarding specific matters and it is important to prepare it precisely and honestly.
8 What is emphasized in judgments on parental rights and custody?
8-1 Continuity of physical custody
In court decisions, importance is given to “the continuity” and “past main caretaker.” The gender aspect is less and less important.
However, since in Japan abduction of child or taking away the child by a parent at the commencement of the separation is not deemed a criminal offence if there is not violence or fraud is involved, such attitude toward faces a lot of criticism. If one parent wants to be separated, under the current Japanese legal system, she or he tends to take away the child with her or him to restore the custody and in the end, to win the parental rights in the divorce trial.
However, such taking away method or abduction by one parent in Japan, may adversely affect the child upbringings if the healthy relationship with another parent can be cut off.
The parent who took the child away would not be legally negatively sanctioned in the family court cases thereafter if nor violence or fraud is involved. There seems that more and more parent use this strategy to restore the custody, which may cause a chaos to the children.
Even if the parent was not a main caretaker, he or she would try the abduction hoping that the other parent will not file the return cases and settle the custody battle by another agreement. It may be successful if the other parent does not afford legal fees to file the return cases or the other parent wants to avoid the legal disputes for the sake of children or relationship with another parent., his wife or her husband.
The reason for the fact that almost 90% of mothers is able to obtain parental rights and no custody is granted to the fathers is that, since before they were separated, mothers were main caretaker and the Japanese court would reluctant to give any custodial rights to another parent by its ruling.
If the father was not a main caretaker and abduct the child to commence the separation it is likely that the return order if such case is filed by the mother promptly, will be issued. However if the father was heavily involved with the care, he may not be ordered to return the child and the mother must give up the custody and seek for the visitation.
This way, the custody battle in Japan tends to be chaos especially there was no main caretaker and both parents are involved. However if the main caretaker is the mother, the mother may be able to keep the life she started by separation even by the abduction and then will be granted the sole parental rights by the divorce trial.
8-2 Intention and feelings of the child
Another important matter for the decision is the feelings of children are very important. Especially if the child is older, what the child want is highly valued in the family court decision.
In the past, there was an idea the mother was important for infants, but not any more. The court will put importance on the custodial circumstances and someone like a grandmother who can assist the upbringing and support the emotional development of the child may be deemed important.
Sometimes a grandparent is evaluated as having a important positive role when the father is granted parental rights.
9 How the child abduction is treated in the custody battle?
By the Japanese legal precedents, the cases of child abduction by a parent must be handled at the family court, not as criminal cases since the interests of children must be fundamental aspects to be considered at the decision regarding with which parent the child should live.
In the family court, the court must decide if the child must be returned or not, after considering the interest of the child if a return case filed. Often the parent left behind is reluctant to file the case and avoid the confrontational cases but then he or she wants it later because the negotiation does not work and can not see the child at all or only for a little time, 3 hours per month or so. However, the late filing would often lead to the lose of the case. Therefore the confrontational procedures often seen in Japan.
Whether the abduction or taking away of a child is illegal or not is often argued in the cases. The way the child was take away is normally found illegal if the taking parent used lies or violence.
If at the commencement of separation, the child was taken away from the father, who started the separated life from the wife and live with the child, without his consent such action will possibly be deemed as illegal abduction especially if any lie or fraud id involved. If the mother uses her parents and the parents violently had taken the child from the father would be also deeded the same.
However, in the case of talking away with no violence nor fraud, but without consent of the other parent, and a lawyer is retained by the taking parent’s side, it would not be illegal. In this way, consent is not the key.
In Japan there is no legal norm that a parent cannot live with her or his child without the consent of the other parent, which seems to lead to the child abduction increasing in Japan.
If the abduction is deemed illegal, the return order is normally granted quickly by the provisional procedure but then the merit case will be ongoing afterwards to decide if the child should live with who.
“Then, wouldn’t it better if I took the child away first?”
Lot of people may think so under this chaotic legal system.
The background reason of such situation would be that after divorce, the child becomes under the sole parental rights in Japan and one parent will be likely to be cut out from the life of the child if another parent is not friendly.
If the visitation after separation is very frequently granted by the court the custody battle may not be so severe as now.
If any third party could be involved to the child life after separation and listen to the voice of the child to organize the best visitation arrangements, it would be better. However it would not be such system at the commencement of the visitation.
Of course, there are couples who separate from each other after having discussions, and it is possible to start living apart from each other in such a way that the child is not victimized or shocked. Under such circumstance, it is better to prepare for the written agreement about the visitation or parenting using proper lawyers. For the children it would be the best.
However, there are cases in which it is difficult to do so by emotional background or so.
Anyway, child case should be handled on a case-by-case basis. It is for this reason that it is always a “difficult case” even for experienced lawyers who act as representatives of parents.
