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Visitation
If you are currently being denied visitation with
your child in Japan, go to the Non-Japanese Law page
for your country and look for the essay on "What to do if I am being denied
visitation with my child in Japan."
Visitation is not a legal right in Japan. But the concert is usually referred to using one of the following terms, which appear to be rights, since the final character ken, is usually used for legal rights: mensetu koushouken (), menkai kouryuuken
(), menkai koushouken (). The "right" of visitation is entirely based on precedent and the ability of a judge to use Civil Code Article 766 to order
"other dispositions as may be appropriate." The following law journal article (page 245) describes a 2000 Japan Supreme Court decision which effectively declares that "Visitation is not a right of the child or of the parent; it is a right of
the judiciary, a prerogative of judges to confer a privilege on worthy and cooperative parents, parents who will agree to visitation without giving rise to the potentially embarrassing issue of enforcement."
Jones, Colin P.A (2007) "In the Best Interests of the Court: What American Lawyers Need to Know about Child Custody and Visitation in
Japan"; Asian Pacific Law and Policy Journal; University of Hawaii. Volume 8, Issue 2, Spring 2007.
In reality, without the ongoing cooperation of the custodial parent, visitation is impossible. In some cases, the result is an exchange of money (child support) designed to ensure for time (visitation). This necessity to keep the
custodial parent in constant need of financial support in order to ensure visitation is hardly a situation one could claim to be in the best interests of any child.
The Issues
- Child visitation is not a legal right under Japanese law
- Visitation, even if ordered by a court, is inadequate
- Court orders for visitation cannot be enforced by the
courts
- There is no provisional visitation during divorce or other family
court proceedings
- A non-custodial parent may not be able to get a visa to
stay and work in Japan to maintain a relationship with their child
Solutions We Want To See
-
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.
-
Completely separate custody and visitation determinations from divorce, to
prevent access to children from being used as a bargaining tool in divorce.
-
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.
- 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.
-
Enact national laws that criminalize denial of visitation, interference with
custody, and concealment of children from a natural parent. These national laws must require government agencies to
assist a natural parent in finding his or her child.
-
Gather and make public a breakdown of statistics with regard to visitation
awards based on citizenship of the parents involved, as Japan does for marriages, divorces, births and deaths.
-
Amend the Law for the Prevention of Child Abuse to establish within the national
framework, that denial of a child’s access to a parent constitutes a form of child abuse.
-
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.
- Amend immigration laws so that a foreign parent of a Japanese child can qualify for a residency visa, either long term
or permanent residency, without the letter of guarantee currently required for the granting of such visas. This should
apply towards a spouse visa, a non-custodial parent of a Japanese child visa, or permanent residency for any parent of a
Japanese child.
- Amend immigration laws so that a non-married or non-custodial foreign parent of a Japanese child qualifies 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.
- Amend immigration laws so that a non-married or non-custodial foreign parent of a Japanese child qualifies for
permanent residency under the same accelerated time frame and favorable conditions as the spouse of a Japanese citizen.
- Barring documented national security concerns, immigration regulations should explicitly permit a non-custodial parent
to enter Japan to get a visa to attend court proceedings regarding his or her child.
- Barring documented national security concerns, immigration regulations should explicitly permit a non-custodial parent
to enter Japan to get a visa to visit his or her child several times per year.
Essays
Documented Cases
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Osaka Family Court case #7017 of March 19 Heisei 13, which granted the legally recognized custodial parent only one
three hour visitation per year, is a particularly egregious example of inadequate visitation.
-
Mother, Yamila Castellanos was denied the right to work
in Japan and visa extensions during court proceedings in Japan for forgery on an application for Divorce By Mutual Consent
and for the custody battle for her daughter. She existed only by the charitable graces of others, including that of
friends and a convent which provided lodgings during several years of court battles.
-
Father, Khawar Ali Shah, while resident outside of Japan, was summoned by a
Japanese court for divorce proceedings by Japanese wife and custody of their child. He was
granted a visa to Japan by the embassy, but refused entry by Japanese
Immigration. Twice.
-
Ken Massey had lived in Japan for 17 years and been married to a Japanese
women for 10 years. After their divorce, he was working at a steady job and making regular
child support payments until immigration refused to issue him a visa and eventually deported him under suspicious
circumstances.
-
Shizuoka District Court case H10 (WA) #548 (ID
#00100337) on December 21, Heisei 11 (Japanese original). This case is powerful in two ways. First
this is a proven strategy that could be used to
pressure a spouses into allowing visitation. Second it is a prototypical
example of the ineffectiveness of the Japanese courts at enforcing visitation, since in the end, we have been told by a
non-official source, the father was paid the money, yet has not been able to see his son.
Reportedly, this was payable over a stretch of 20 years in monthly installments, so the real burden on the mother was
small, and likely viewed simply as an unavoidable but bearable cost necessary in order to continue restricting access to the
child.
Resources
Articles
There are many articles not specific to Japan, and based on research done outside of Japan showing the harmful effects of
losing contact with a parent. But these statistics would be more convincing if they were from studies in Japan. Please
let us know about any Japan specific articles you find on this subject.
Non-Japan specific articles can be found here. Also see
Joint Custody in Japan for additional references.
- Troubleshooter: Girl hates visiting divorced father; The Daily Yomiuri; February 25, 2007. This advice column by a lawyer named Sachiyo Dohi, showed
extreme naivety about why children sometimes claim to “hate” a non-custodial parent and about the realities of the Japanese legal system. The advice seemed more directed at provoking a legal dispute than at solving the problem in a way that was in
the financial and psychological best interests of the child. (cached copy)
- 14-year-old girl arrested for attempted murder after stabbing father;
Mainichi Daily News;
December 26, 2006. 14-year-old girl stabs divorced father because he would not let her see her mother." (cached copy)
- 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)
- Center planned to help single mothers collect payments
from ex-husbands; The Asahi Shimbun; September 8, 2006. Contains some interesting statistics from a
government survey, giving rates of child support payments by fathers, single mothers, child visitation. Also says that
"Some 20.6 percent [of single mothers] said they wanted their former husbands out of their lives...". If you would
expect a single mother to be more likely than a remarried mother to want help from the natural father, this gives us a
conservative estimate of the overall rate of denied visitation.
-
Schools battle bad
behavior of first-graders; The Daily Yomiuri ; 17 May 2004. The Tachikawa city government in western Tokyo
has attracted attention for assigning active or former kindergarten and nursery teachers to primary schools to deal with
difficulties arising from unruly first-grade primary students. (cached
copy)
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Serious Juvenile Crimes Soar; Yomiuri Shinbun; July 18, 2003. This
article notes that stricter laws may not be the answer to reducing juvenile crime in Japan. Comments from Justice
Minister Mayumi Moriyama that the environment surrounding juveniles must be improved. (scanned
image copy)
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Joint
Custody Discourages Divorce; Washington Post; Page CO5; Sunday, 25 January 1998. (Not specific to
Japan) This is an online transcription from an article in the Washington Post. I'm not sure if it is the whole
article or just a part of it. Basically, divorce rates go down when joint custody is the law. As divorce rates
rise in Japan and birth rates lower, perhaps this would be an argument for changes in Japanese law that the
politicians would listen to. (cached copy)
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Troubleshooter / Woman Misses Grandchild; Daily Yomiuri; October 12, 2003. A translation (I think) of letter
from a woman who wants to see her grandchild, but her son's ex-wife has custody. The reply by a lawyer sadly talks
about how the welfare of the child may be best served by watching him only from afar. (cached
copy)
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Judge rules mother still
faces indictment; The Roanoke Times; February 15, 2002. U.S. District Judge James Turk denied Yoko Mizuno's request
to drop the charges of kidnapping her two daughters. (I cannot find
the online reference so only the locally cached copy is available.)
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Frozen
out, frustrated father refuses to give up; Asashi Shinbun; January 27, 2002. Article about a Japanese family
trying to negate the father and subsequent in ability to see his child. The father, David Brian Thomas is a
co-founder of CRC Japan. (cached copy)
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For Japanese, a Typical
Tale of Divorce Washington Post; May 19, 2001. A good discussion of how the non-custodial parent in Japan is
often denied visitation with their child -- and often prefers it that way. Quotes from
Kayoko Miyamoto, who is Prime Minister Junichiro Koizumi's ex-wife. (I
cannot find the online reference so only the locally cached copy is available.
It originated here.)
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Divorce, Japanese Style; The Los Angeles Times; Oct 2, 2001. Another article on divorce in Japan
using Prime Minister Junichiro Koizumi as an example. Talks more about the Japanese who are trying to change the laws
also. (Original also available at www.latimes.com) (cached
copy)
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Divorced dads demanding right to
see kids; Mainichi Daily News; August 1, 2001. Articles says that "from 1998 to 2000 there was a 42 percent
increase in requests for courts to recognize visitation rights," so the government is looking into it. Also says that
there are no fixed rules for length of visitation. (cached
copy)
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