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Child visitation is not a legal right under Japanese law
There is no provision for visitation rights under the Japanese Civil Code. Article 766, paragraph 1 of
the Japanese Civil Code, which is used to determine custody and visitation
rights, reads as follows. “In cases where the father and mother effect a
divorce by agreement, the person who is to take custody of their children and
other matters necessary for the custody shall be determined by
their agreement, and if no agreement is reached or possible, such
matters shall be determined by the Family Court.” This gives no
assurance of any visitation at all.
Even if it is specified by a Japanese court, it is incredibly limited, usually only a couple hours per month. The
responsibility to ensure regular visitation is a direct consequence of the United
Nations Convention on the Rights of the Child, which was ratified by Japan in its entirety on May 22nd 1994.
Article nine of this treaty obligates Japan to "Respect the right of the child who is separated from one or both parents to
maintain personal contact with both parents on a regular basis."
Solutions We Want To See
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Enact national laws requiring adequate visitation between a child and his or her
non-custodial parent. This should include visitation guidelines including but not limited to (i) minimum unsupervised
visitation hours per week; (ii) weekly overnight stays; (iii) separate vacation time per year allowing overseas travel when
one parent is not a Japanese citizen, subject to adequate protections to ensure return; and (iv) permissible conditions for
denial of any of these guidelines. These should be based on consultation of the many publicly available reference guidelines, such as these
sample of child visitation guidelines.
Finally, the law should require that all judicial visitation determinations state specifically why the
determination is “in the best interests” of the children it affects.
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Combine visitation proceedings with custody proceedings. Require it to be
standard practice that preliminary visitation rights are awarded immediately upon commencement and enforced throughout.
Absent special circumstances, a child should not go without seeing a parent for more than two weeks while proceedings are
under way. Whether the parties respect such rights must be a key factor in the ultimate custody award.
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Completely separate custody and visitation determinations from divorce, to
prevent access to children from being used as a bargaining tool in divorce.
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Sanction lawyers who persist in recommending that their clients deny child
visitation with the other parent as a bargaining chip in a divorce or tolerate this sort of behavior in their clients.
- Unless there is strong and verified evidence indicating abuse has taken place, as noted in Article 19 of the United
Nations Convention on the Rights of the Child, courts should approve mandatory unsupervised visitation throughout
a divorce or other custody or visitation related case. Even with strong and verified evidence, visitation in a supervised
environment should be considered.
Documented Cases
Articles
- Child custody
in Japan isn't based on rules; San Francisco Chronicle; August 27, 2006. A law professor discusses why
institutional reasons rather than cultural ones are to blame for bad family law in Japan. Much of Japan's family law is
based on the need to cover up the fact that Japanese courts are powerless to enforce their own decisions. It contains an
example of culturally biased opinions regarding visitation made by a prominent "family expert" in a book on visitation, as
well as descriptions of apparently mainstream anti-visitation opinions expressed by family court mediators. Both of these,
until now, were only available in Japanese. (cached
copy)
- Parents' rights a demographic issue; The
Japan Times; July 18, 2006; Law professor from Doshisha University in Kyoto postulates that prejudices against men in the
family law and courts might be effecting Japan's plummeting birth rate. (cached
copy)
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