DIVORCE AND THE BEST INTEREST OF THE CHILD: DISPUTES OVER VISITATION AND THE JAPANESE FAMILY COURTS
Written by Takao Tanase, Translated by Matthew J. McCauley
20 Pac. Rim L. & Pol’y J. 563
The following is a translation of an article written by Professor Takao Tanase for the December 2009 edition of Jiyū to Seigi, a Japanese legal periodical. Divorce and familial breakdown has become a major problem in modern Japanese society, yet the law does not provide any meaningful protection for the noncustodial parent. Professor Tanase analyzes this issue from a comparative and theoretical perspective, looking at the current Japanese visitation laws in place today, while contrasting those with the system in the United States. He also looks at how those laws affect actual families, and how the courts have implemented and enforced visitation agreements and orders. This article concludes that not only are the rights of the noncustodial parent insufficient to maintain a meaningful relation with their children following divorce, but that they hardly exist at all.
Japanese Version should be here:
DIVORCE AND THE WELFARE OF THE CHILD IN JAPAN
Matthew J. McCauley
20 Pac. Rim L. & Pol’y J. 589
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.
Excerpt from the article:
…Even with the increase in visitation awards, only about 2.6% of the 245,000 children [annually] affected by divorce [in Japan] will be allowed visitation.
This raises the question of whether the remaining 97% of children of divorced couples will be able to have smooth visitation with the noncustodial parent. A lack of reliable studies prevents knowing the absolute truth, but considering that judicial cases epitomize the adversarial nature of parties in a divorce, and that their decisions can be seen as legal norms, the most likely result in these types of cases is that noncustodial parents will no longer be able to meet with their children following divorce. Even if they are able to meet, once a month is an abysmal state for visitation rights.
Basically the articles discuss how the Japanese Family Court has traditionally prioritized the desires of the abducting parent over the true best interests of the child.