Types of Child Custody in Japan: Shinken and Kangoken

Note: This page and the Japanese page are not the same.  We will be working on consolidating them in the future.

The word most often used with the meaning of "child custody" in Japanese is shinken (親権) which is often translated as "parental power."  Some Japanese will explain that the word consists of the characters for “Parent” and “Right” but that the real meaning of “shinken” in is not “Parent’s rights” but is legally more similar to “Parent’s duty” and thus means an obligation for the parent to protect the child and bring him or her up in a proper environment. But be as that may, shinken has a specific legal meaning which even many Japanese parents fail to understand until a parental separation.

In marriage, Civil Code Article 818 says that both parents, ostensibly, share the rights of shinken both jointly and individually.  Thus, the common use of the term is as applied during marriage, which includes both the physical custody (known as kangoken) and the the right to engage in legal acts on behalf of a child.   But outside of marriage, Civil Code Article 819 does not permit joint shinken.  Only one parent may hold shinken.  A common reason given to justify the prohibition of joint custody of a child is that the belief that that divorced parents are not able to cooperate in executing their duty in harmonious way.  But not all Japanese believe this, in particular the ones who each year try to obtain joint custody.  A more practical reason is that it would require significant and contentious changes to the Civil Code, not only to the articles discussed here, but in powers of enforcement and dispute resolute of the judiciary. [ref Jones article]

So in the case of a divorce, the couple must agree on who gets it, else a court must decide.  In cases of a child born out of wedlock, the mother automatically gets shinken, without any consent by the father or approval by a court.  It is also possible to assign shinken to grandparents or other relatives.

Separating shinken and kangoken

But there is another type of custody called kangoken, which can loosely be translated as "physical custody".  The separation of shinken from Kangoken can be ordered by a court under Civil Code Article 766 and each can be held by a different parent or other person.  But separating shinken and kangoken is not the same thing as joint custody.   In this case, kangoken is the duty to live with the child and take care of the child, providing proper education in everyday life.  shinken then becomes, what could be translated as "legal custody", although it is not exactly the same as legal custody in western law. (Also the meaning of these terms in English will also vary from country to country, so it is best not to attach too much meaning to the English terms.) In particular, shinken does not include visitation rights or even the right to know where one’s child is living or going to school.  But shinken is recorded in the family register, and so it is provable and it is required for certain legal events, such as applying for a passport.  Approval of the person with shinken is also required for adoption.

For example, the mother could have kangoken and would live with the child on a day to day basis.  The father could then have shinken.  These roles could also be reversed.  The mother could have shinken and the father could have kangoken, or even another relative or court appointed guardian could have one of these duties/rights.

One thing to note is that although you must go to court to change shinken, kangoken arrangements can be changed by the parents just by changing the child’s living arrangements.  See the Family Registration Law, Articles  78-79 which discuss the registration of changes in legal custody required in a divorce.

Danger of Not Having Either Shinken or Kangoken

A parent who loses both physical and legal custody in a divorce has virtually no rights whatsoever with respect to his or her own children. He or she may not know where his children live, and the custodial parent can change the child’s name and have the child adopted by either a grandparent or a new spouse without his consent. 

Adoptions usually require the involvement of the family court, except in cases where a child is adopted by a grandparents or spouse of a parent.  (Civil Code Article 798.)　“Special Adoptions” involving children under the age of six (or eight, in certain cases) require the involvement of the family court and the consent of the natural parent of the child being adopted, unless the natural parent is “unable to declare [his or her] intention or where there is cruel treatment, malicious desertion by the father and mother, or any other cause seriously harmful to the benefits of a person to be adopted."  (Civil Code,  Article 817-5, 6)  Since a non-custodial parent does not even have a right to know where his or her child is, he or she would be unable to express their intentions.

Why do you want shinken?

It may be worth your time to ask for shinken in a foreign court decision. In this case, you should ask the judge to make any travel to Japan dependent on having a reciprocal order issued in Japan granting you shinken and having it registered on the Japanese parent's koseki.  This might prevent a Japanese parent from getting a Japanese passport, and perhaps  if you notified a Japanese embassy/consulate that you had it and proved it with a copy of a koseki, you could stop, using Japanese law, them from issuing a temporary travel document back to Japan.

In Japan, it may also be worthwhile to ask for this for the same reason, and also because you may be able to prevent adoption of your child by a relative or future spouse of the other parent.

Applying for Shinken or Kangoken

TBD

How To Change Shinken or Kangoken

TBD

References

• http://www.fukazawa-office.com/rshinken.htm
• http://www.rinku.zaq.ne.jp/bkaqx509/sinken.html
• http://www.geocities.jp/chouwanokai/kodomonosinnken.html