Birth Out of Wedlock in Japan

See also our sections on Nichi - Acknowledgement of Paternity and Birth Out Of Wedlock Outside Japan.

Under Japanese laws, the father of a child born out of wedlock has no rights whatsoever by default. The mother is automatically declared the custodial parent upon birth and he has no rights whatsoever by default. It is a clear case of gender discrimination in the law. I can reference the exact code where it says this, and can provide both Japanese and English versions quickly. <add reference to Japanese civil code in English and Japanese>  (Search the website, as it is already here somewhere, I think in the report to the United Nations on the Convention on the Rights of the Child treaty.

Important notes on Japanese law

• Civil Code Article 772.  A child must be born at least 200 days after the parents marry to be considered legitimate under Japanese law. That is, unless the child would be deemed legitimate under the laws of your country, in which case it's not a problem... Confusing, no?  If you got married less than 200 days ago, it may be that the child is simply listed as son or daughter rather than 1st, 2nd, 3rd son or daughter.
• Civil Code Article 772.  Children conceived during wedlock are considered the legitimate offspring of the husband. If your husband is not the father, you can go to court to have the father-child relationship annulled.  But this is unlikely to be healthy for your marriage. Likewise, a husband can contest his paternity in court.
• Civil Code Article 772.  If a woman has a child within 300 days of getting divorced, s/he will still be considered the legitimate offspring of her ex-husband. This relationship can be annulled in court.  In fact, it MUST be annulled before another man is able to submit a ninchi-todoke.  If the wife is not willing to bring this lawsuit, the real father can also bring this lawsuit and via that require DNA testing for the child.

Citizenship

For information on how your child might acquire Japanese citizenship, see our page on Japanese Citizenship and the Nationality Law.  Note that the situation is very much different for a foreign mother and for a foreign father.

Child's Name on Family Registration

But....I thought that the indication of "First Son" etc appearing on the koseki was gong to go away anyways? Didnt the law very recently change? If not, Im sure it will. Most Japanese want to change this. But Ive never understood anyways. The only way to see this is to get a copy of the koseki. If you have a copy of the koseki, you can tell if the child was born out of wedlock, even without the indication of "First, second, etc" being missing. So you gain nothing. Do why does anyone care. Finally, there are loads of children born out of wedlock in Japan every year. Thousands. (I can get stats if you like. I think its 22,000 some.) I dont see why anyone cares.

A newspaper reports that from this summer (2004?  2005?) the fact that the child was born outside of marriage will stop appearing on the koseki, which is very important in Japan where all sort of discrimination is rampant.

Why would a nefarious father want to do ninchi?

This whole process would also legalize the parent-child relationship, and thus give the Japanese father the chance to succeed at defacto abduction of the child. There is no official "right" to take a child away. But you have to look at what happens in the process when one parent does it anyways. Basically, the right of the custodial parent to *not* have this happen is not enforced, even between two Japanese.  If you are a foreign parent, a court is likely to enforce the status-quo of the child remaining with the abducting parent, even if they did not have legal custody before the abduction.

Rights of the father

• Father may have right to get custody if mother dies.  Depends on adoption status, etc.  Not sure what happens if the father wants the child and it has been adopted.
• As you may be aware, when a child is born out of wedlock, the mother automatically gets custody by Japanese law. This is by default and there is no Family Court negotiation etc required. Of course it could later be challenged in court, but that would be hopeless unless the mother was a demonstrably a delinquent of some kind or in jail. Even in a divorce, mothers get custody 80% of the time.
• Father gets right to sue for visitation in court, even though they may never be upheld.

Obligations of the father?

• apart from succession obligation, it gives the father the obligation of paying money every month (only 20% of fathers do anyway, because they are not taken to court. Only a trial obliges the father to pay).  About child support, I hope to have a chart of amounts required based on salary someday on the web site. Such is available from court houses in Japan. Apparantly it *is* enforcable in Japan if you work for a Japanese company. They can now deduct it from your salary. I have this from a recently divorced father.

Why would a mother NOT want a father to acknowledge a child?

I would be very interested in knowing a reference to a law saying that the father gets the child if the mother dies, even if the child has been living with the mother. A court is likely to try to uphold the living environment the child has been in, and so would likely give the child to the parents of the mother, if the mother is Japanese. If the father got there fast enough and grabbed the child, he might have a chance to delay things in court and establish a new status quo. This more likely in your friend's case of being a foreigner in Japan, where I assume her parents are not there in Japan. In this case, yes, my guess would be that if she is not married, then the child would go to the father. If she is married, she can prevent this by having the husband adopt the daughter. The natural father cannot prevent this, as the mother has legal custody. Then, custody would be shared with the new father, and he would have custody on her death. Nothing the natural father could do. If the husband was not Japanese and there was no koseki to validate all of this, then the natural father may indeed have a chance. If the child is a Japanese citizen, though, you can have the new relationship entered on the child's koseki, and so even a foreign father would be indicated as the custodial parent.

So I guess the moral of the above is that if the child is a Japanese citizen, make sure it has its OWN koseki, and is not on the Japanese father's koseki. That way, you could actually have someone else adopt the child as well and take custody in the event of the foreign parent's death. This is how the Japanese do it. (I think, but am not sure, it is possible to have a parent adopt your child, just in case. Its trivial and requiires no consent of the other natural parent, for a new spouse to adopt the child. But Im not sure if the other natural parent needs to consent if the adopter is a non-spouse.)

Since neither courts or police will return children to one parent, in general, the father might be able to get away with kidnapping the child, even if he is not the custodial parent. Im not sure what would happen here as Ive never heard details of such a case. But Im pretty sure that it could happen and likely has happened. Since the father is a natural parent, perhaps they would not intervene directly, and a court case would be necessary. (Note the case of Sam Lui, documented in full on www.crnjapan.com, where he had complete custody by US law, and it was even eventually accepted by the japanese Supreme court. The mother kept the child.) If the courts did not give the child back, as above, he could establish a new status quo by dragging it out.

The uncertainty of this and the response of the Japanese courts seems to me like the biggest danger.

From an email to a non-Japanese mother whose father is doing ninchi now that the child is 7 years old.

One idea you could look into, would be getting your child on her own koseki after the father does a ninchi.  Not on her father's.  Her own koseki would still list him as the father, and you/she would get all the benefits.  This may very well be possible since you are the custodial parent, and are not a Japanese, hence have no koseki yourself.  It should even make sense from a Japanese point of view, of who should be on whose koseki.

Although the legal benefits of the above are likely small, they may be some psychological ones.

What are you doing about the citizenship issue?  I think its possible that she can have him listed as the father, yet not be a Japanese citizen.  I dont think ninchi after birth automatically gives her citizenship.  (I could be wrong on these facts though...)  I do know that E-chan was listed on Y-san's koseki before she was a citizen.  In fact he had to do a special request to make her a citizen.  This may defeat your purpose of doing this in the first place though, if your purpose is to get a visa based on being the custodial parent of a Japanese citizen.  (Does this work for being the custodial parent of a child of a Japanese citizen even if the child itself is not a Japanese citizen??)

Resources

• TBD - References to laws on Nichi
• TBD - References to laws on mother getting custody of child born out of wedlock
• TBD - References to adoption

Press Articles

• Ex-husband dragged through court system over paternity of post-divorce baby; Mainichi Daily News; January 18, 2007. Japanese fathers must go to court and give intimate details of life before divorce to prove they are not fathers of children born after a divorce. (cached copy)

• New divorcees push for DNA testing to be allowed to prove paternity of newborn children; Mainichi Shinbun, January 8, 2007.  Japanese mothers want DNA testing to be recognized as conclusive proof of teh father even if child born within 300 days of divorce.