Decision concerning whether the Family Court may order appropriate measures for negotiation for visitation by a parent not living with the child in such case that parents have been in separation due to broken matrimonial relation

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Title: Decision concerning whether the Family Court may order appropriate measures for negotiation for visitation by a parent not living with the child in such case that parents have been in separation due to broken matrimonial relation

***JCRN NOTE: This case name does not seem to match the title.  But this is what was at the source.  I leave it this was as a reminder to try to figure out what is going on here, and to find the original Japanese and/or a correct translation.  But the rest seems to match the title....

Case name: Abduction for the purpose of performing an obscene act, murder and abandonment of corpse
Result: Decision of the Second Petit Bench, dismissed
Second instance court: Tokyo High Court, Judgment of May 9, 1996

Summery of the decision:
In case negotiation for visitation does not reach an agreement between father and mother living in separation or it is not possible to hold such negotiation, the Family Court may apply Article 766 of the Civil Code by analogy and order proper measures for such negotiation in accordance with Article 9, para. 1, category Otsu, item 4 of Law for Adjugement of Domestic Relations.

References:
The Civil Code
Article 766
In case father and mother effect a divorce by agreement, the person who is to take the custody of their children and other matters necessary for the custody shall be determined by mutual agreement. If no agreement is reached or possible, such matters shall be determined by the Family Court.
2. The Family Court may, if it deems necessary for the benefit of the children, change the person to take the custody of them or order such other measures as may be appropriate for the custody.
3. The provisions of the preceding two paragraphs shall not cause any change in the rights and duties of father and mother outside the scope of the custody.
Article 818
3. While father and mother are in matrimonial relation, they shall jointly exercise parental authority. However, if either of father or mother is unable to exercise parental authority, the other parent shall exercise it.
Article 820
A person who exercises parental authority has the right and assumes the duty to provide custody and education for the child.

Law for Adjugement of Domestic Relations
Article 9, paragraph 1, category Otsu, item 4
The Family Court shall hear and determines the following matters:
Category Otsu
4. Measures regarding the designation of the person who is to take the custody of the child and other matters related to the custody of the child set forth in the provisions of Article 766, paragraph 1 of paragraph 2 (including the case where the said provisions are applied mutatis mutandis under Article 749, Article 771, and Article 788 of the said Code)

Main text of the decision:
This KOKOKU-appeal is hereby dismissed.
The cost for the KOKOKU-appeal shall be borne by the Appellant.

Reasons:
With regard to the reasons for KOKOKU-appeal presented by Counsel Akio Higuchi, Counsel Hisakazu Oowaki and Counsel Yoshihiko Ota:
Father and mother, while in matrimonial relation, are responsible for jointly exercising parental authority and the person with parental authority has the right and assumes the duty to provide custody and education for the child (Article 818, para. 3, Article 820 of the Civil Code), and even if the marriage breaks down and father and mother live separately, it can be construed as a component of the child custody for either parent not living with the child to negotiate for visitation. It is appropriate to construe that in case such negotiation for visitation does not reach an agreement between father and mother living in separation or it is not possible to hold such negotiation, the Family Court may apply Article 766 of the Civil Code by analogy and order proper measures for such negotiation in accordance with Article 9, para. 1, category Otsu, item 4 of Law for Adjugement of Domestic Relations. Hence, we affirm the second-instance judgment ruling to the same effect as above, while the argument made by the Appellant's side cannot be accepted.
Thus, the decision is passed unanimously as described in the text.

Presiding Judge, Justice FUJII Masao
Justice ENDO Mitsuo
Justice IJIMA Kazutomo
Justice OHDE Takao
Justice MACHIDA Akira

(This translation is provisional and subject to revision.)