Joint Custody Is Illegal In Japan

After divorce, and in cases of children born out of wedlock, Articles 818 and 819 of the Japanese Civil Code clearly does not allow joint custody. The following translations of Japanese law are from “The Civil Code of Japan” published by Eibun-Horei-Sha, 2001, as the official translation of the Ministry of Justice.

A.     (Article 818, Paragraph 3) While father and mother are in matrimonial relation, they jointly exercise the parental power.

B.     (Article 819 Paragraph 1) If father and mother have effected divorce by agreement, they shall determine one of them to have the parental power by agreement.

C.     (Article 819 Paragraph 2) In cases of judicial divorce the Court shall determine father or mother to have the parental power.

D.     (Article 819 Paragraph 3) If the father and mother have effected divorce before the birth of a child, the parental power is exercised by the mother.  However the father and mother may determine the father to have parental power by agreement after the birth of a child.

E.      (Article 819 Paragraph 4) The parental power over a child recognized by its father shall be exercised by its father, if and only if the father and the mother determine the father to have the parental power by their agreement.

These Articles show that although Japanese Civil Law recognizes the concept of joint custody, it is only permitted during marriage.  After a divorce, or when a child is born out of wedlock, legal custody must be awarded to a single parent.  In the case of a birth out of wedlock, it is automatically awarded to the mother, without any kind of court or other legal procedure being necessary.

Despite this, due to the desire for shared custody by Japanese citizens, government websites, such as the one in Okayama City have statements such as, “We will not accept applications for joint child custody between mother and father after a divorce.” (* See footnote.)

Although joint custody has been deemed the solution most beneficial to children in a number of countries, Japan rejects it, even when separated parents desire it.

Of course, when one parent is non-Japanese, shared custody also requires the legal ability to live and work in Japan.

(*) This was translated by CRNJ. The original was available as late as on December 31, 2005. Should the original ever disappear, a cached copy of the source page is available here.  The original text is ( 注意 : 離婚する夫妻の間に未成年の子供がいるときは、夫妻のどちらか一方を親権者と定めてください。離婚後も夫妻の共同親権とするお届けは受理できません。)

Solutions We Want To See

• Shared custody for non-married parents, whether divorced or never married, must be legalized in Japan in order to ensure the covenants of Article 18 of the United Nations Convention on the Rights of the Child.. This requires Articles 818 and 819 of the Japanese Civil Code to be modified to permit joint custody of any child, regardless of the marital status of his or her parents.
• A non-married or non-custodial foreign parent of a Japanese child should qualify for a long-term residency visa permitting employment. In particular, sustaining the non-Japanese parent and living in the same country as his or her Japanese child should be an acceptable reason to grant a long term residency visa, even if that parent is not the custodial parent.
• A non-married or non-custodial foreign parent of a Japanese child should be granted permanent residency under the same accelerated time frame and favorable conditions applicable to the spouse of a Japanese citizen.

Articles

• TBD