Japan will introduce major reform to its family law legal framework following the first significant legal change regarding parental authority in 77 years, removing the current sole custody system in favour of allowing divorcing couples to negotiate joint custody of their children.
In May 2024, Japan’s House of Councillors approved changes to Article 819 of the nation’s Civil Code, which currently requires divorcing parents to determine which one of them is to be the person having ‘parental authority’ in that agreement. This move, which will come into effect in 2026, has multipartisan political support in Japan, including from the incumbent Liberal Democratic Party. The change makes Japan the last G7 nation to legally recognise joint custody.
Most divorces in Japan are consensual with both parties coming to an agreement over custody and visitation arrangements. However, under Japan’s current system, when divorce proceedings ensue, if the parents cannot come to mutual agreement, the court will award custody to the parent who has been the primary caregiver. The courts generally determine the child’s best interest as being where their ‘usual place of residence’ is. In most cases, the primary caregiver happens to be the parent who took the children at the time of the divorce.
Annually, over 200,000 children are affected by divorce in Japan; a third of whom lose contact with their non-custodial parent. Although the change will not come into effect until 2026, the decision exemplifies the nation’s readiness to place paramount considerations on the best interests of the child.
Critics have long feared that a parent’s exclusive custody over their children limits the non-custodial parent from partaking in the growth and development of their children. Many fear such dissociation between children and the ‘left behind’ parent may cause the children to have significant psychological issues.
There have been suggestions that these changes to the law may conversely incentivise parental child abduction, particularly for mothers who were previously subjected to domestic violence. While the current system deprives many innocent parents from being involved in their child’s life, it does act as a legal barrier to allow victims of family violence to escape those who have caused harm to them or their child. When the law is changed to permit joint custody arrangements, it does open the door for abusers to remain in contact with both their ex-partner and child.
Parental abduction is made easier by the fact that law enforcement seems to view family disputes as a private matter and seldom intervene. In fact, in many cases parental child abduction is not considered a criminal offence in the eyes of Japanese law. In 2014, Japan joined as a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
The extent to which Japan enforces Hague abduction cases where the child is wrongfully removed to Japan is an ongoing conversation among other contracting states.
Nicholes Family Lawyers have expertise advising and representing parties in matters involving one parent seeking to relocate from Australia to another country with a child or children. We can also provide assistance in cases where children have been abducted from Australia or brought to Australia following an abduction. Please contact our office at 03 9670 4122 to arrange an initial consultation.
By Nicholes Family Lawyers