Overview Of Family Court

I will put this page in order later, but these assorted notes might be useful to you in the meantime.  Obviously we need more info than this.  So if you have an experience in Family Court, please contribute.

Transcribed Comments by Yano Haruko, mediator, Osaka Family Court, from a seminar held at the International Counseling Centre, Kobe in XXXX, 200X.

Haruko Yano has been a mediator with the Osaka Family Court for 12 years, since 1988.  She has a Master’s Degree in Counseling Education from the Colorado State University.  Although almost the only formal requirement to be a court mediator is to be over 40 years old.  The family court uses the “Conciliation System”.  Divorce, inheritance, custody and other family disputes are handled in the Domestic Affairs division.  Most divorces are handled by filling out forms at the city office.  Only about 10% of divorces use the family court.

 The judge designates 2 mediators out of the available pool, a man and a woman.  Together with the judge they form the committee.  At the first meeting the committee hears both sides separately.  One party waits in the waiting room while the other is with the committee.  The committee then tells each party what the other one said and asks them to consider carefully what the other side says about their problems.  They are told to prepare answers for the next meeting.  They are also told if they need to bring any documents, or other things to the next meeting.  The second meeting is usually three weeks to one month later, at a time convenient for both parties.

At the second meeting the mediators attempt to persuade the couple to reach a compromise agreement.  If this is not possible, then a 3^rd meeting will be arranged.  Prior to the 3^rd meeting the committee will develop its own recommendations.  There is no particular limit on the number of meetings, and they can sometimes go on for 1-2 years.

If an agreement is reached, it is entered into the court record and is a final and binding judgment.  If no agreement is reached, the applicant can withdraw the case from family court and go to the district court.

 Enforcement is a problem.  Although the decisions of the family court are binding, there is in fact no way to enforce them.  You can try to involve the local police, but they cannot force an uncooperative parent to follow a court order. 

For non-native speakers of Japanese, there are some mediators who speak English and a few who speak Korean or Chinese.  It is up to the applicant to bring a translator with them.  Sometimes people use a lawyer for this purpose.  The court itself is not required to provide an interpreter and there is no training for interpreters. 

Lawyers are generally not used for the mediation process.  It would be very unusual for both parties to use a lawyer at this stage, and in fact might work against them, as the committee tries very hard to be fair and may overcompensate for the party that does not have a lawyer.

Financial decisions are based on certain set guidelines as well as income.  The average maintenance, or child support, is Y30000/month per child.  Divorced mothers with no income can apply for child welfare allowance from the city.  In Osaka the allowance is Y45000/month. An agreement about child support reached with the committee has the same effect as a judicial decision.  If the husband refuses to pay, the court can order him to pay or order the man’s employer to attach his wages.  This would usually be at least 25% of his income.

Alimony is usually not paid in Japan.  Instead, a lump sum is paid as compensation.  The amount is based on the individual circumstances of each case.  Incomes as well as the reasons for the divorce and other individual factors are taken into account.  In addition, if there has been adultery, violence or abandonment compensation is also paid for those things specifically.  The amount is based on the income of the offending spouse.  A divorce becomes valid after the lump sum compensation is paid.

 The Japanese court considers its orders for maintenance or other financial compensation to be in force even if the children reside outside Japan. If both parties are foreigners, the agreement is valid as long as at least one of the parties is residing in Japan.  Japan would make no effort to enforce an agreement outside the country, especially if there are no Japanese nationals involved.

Either party can return to family or district court at a later date if they wish to change or add to the original agreement.

Children do not lose their inheritance rights if their parents divorce, even if they are not living in Japan.  The custodial spouse can take the children out of the country any time. It is illegal for the non-custodial spouse to take the children out of the country without the agreement of the custodial spouse.

The most useful way to try to get an order enforced is to go to the local police station.  Sometimes it will be helpful and sometimes it won’t.

Many foreigners want something more formal than the form with check marks that is available from the city hall with its’ boxes stipulating the divorce, financial and custody arrangements.  Although this document is binding in Japan, a person can go to the family court and meet with a committee so that a formal court document can be created and given to them.   They may have to insist some as this is not common, but it is not unheard of. 

Question period—Mrs. Yano finds the whole idea of shared physical custody odd.  She doesn’t feel that in Japan it would be seen as a good thing for children because they need more stability.  They should stay in one place.  Children are consulted about custody decisions when they are a little older.

From a posting at www.friij.net

I really do think that the word "family court" is a gross misrepresentation of what is actually done at the katei-saibansho. Here's why.
(1) The Japan family courts have the AUTHORITY to make rulings and set them in a legally binding format, but they are NOT a "court" in any sense of the Western definition, because no ruling or agreement can be made unless it is consented to by both parties. (2) The "judge" doesn't even show up until after the case is nearly concluded. (3) There is no jury, and the sessions are held in a totally private room. (4) The "defendant" and "plaintiff" don't even see each other until the so-called "ruling" is pronounced. (5) Legal representation is not even required for family court sessions.
As I've said before, family court is for people who WANT TO NEGOTIATE, people who want to talk and reach some kind of conclusion. It is NOT for the purpose of LITIGATION - that is what the district/high/Supreme courts in Japan are for. But if the two parties were able to effectively communicate and end their matters in a mutually agreeable settlement, then they would have no need for assistance in negotiation... and would not even be going to the family court in the first place.
...HENCE... the Japan Family Courts are primarily, by definition and function, nothing more than a place to let off steam and grind away your time, until you or the other person gets tired and cries uncle, or the case is thrown out ("torisage"), or either you or the other person just decides to quit showing up.
Don't get me wrong - some people have been able to reach a settlement in family court. But the whole process is, by its very nature, irrelevant for two people who cannot negotiate or effectively reach an agreement in the first place. And it CERTAINLY holds little to no promise for fathers who want guaranteed, enforced visitation rights.

To add to your description of family court (which I agree with in whole), there is the issue of tatemae and honne and how it works in Japanese Family Courts. The tatemae shows that the mediators are fair and balanced in their view, and are keenly listening to both sides. THe honne shows up in the last session of mediation where they tell you what will be. If you are not Japanese, there's no way you will win custody in a Japanese family court, even if the Japanese parent is a proven physical abuser (let alone mental). They act as the bouncers who usher one parent out of the family.

Another foreign parent writes:

An overriding factor that does make this problem much worse in Japan than in Western countries, and that is the complete non-confrontational attitude prevalent within Japanese culture. Japanese culture is like an iceberg. What you see on the surface is only a very small part of their reality. The vast majority of their reality occurs below the surface and is never spoken of.

I would give just about anything to go into mediation in an American style court, where you actually get to sit face to face with your spouse and discuss real issues. Mediation in Japan is unbelievably incapable of solving any issues because of its complete non-confrontational style. During the entire mediation process you never even see your spouse. First you go in to talk to the mediators and a judge with your lawyers, then after you leave, your wife goes in with her lawyers to talk to the mediators and judge, and it goes back and forth and nothing gets accomplished. You never see your spouse face to face. You even sit in different waiting rooms with frosted windows so you cannot see inside your spouses waiting room. At my first mediation session, I wanted two simple issues addressed: 1) What will our parenting plan be while mediation is ongoing, since mediation will last several months and we both deserve to spend time with our daughter; and 2) why did my wife leave me and take my daughter last July without explanation.

To date, I have been through 5 hours of Japanese “mediation” over the course of the last three months and have absolutely no answers to either of my original two questions. To date, nothing has been accomplished. Supposedly, the next mediation session will be our last, and we have not even really gotten started, nor have I even seen my daughter yet. Additionally, in Japan, divorce is still considered “shameful”, so many times by mutual consent, Japanese parents never see each other again, and the non-custodial parent never again sees his children because then they do not want to ever confront that “shame”. Avoidance is the norm, and confrontation is avoided at all costs. I know that is human nature, but in Japan, it is magnified by tenfold over other countries I have visited.

I know that western countries are not perfect, and many fathers are denied access to their children in western countries, but due to the general openness of western societies in confronting issues, progress can be made more quickly to enact change. In a society like Japan, which is closed and completely discourages confrontation of any kind between two parties in disagreement, change is unbelievably slow. To put it simply, this cultural anomaly in Japan really ends up leaving Western parents “bewildered”. That is the only word I can use to describe how Westerners in Japan feel who encounter this aspect of Japanese culture during a divorce process.