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Every newlywed dreams of a lifelong, trouble-free marriage. But sometimes, divorce becomes the only path forward. In Japan, divorce is prevalent, whether due to personality clashes or more significant issues, and its repercussions can be profound for all involved. The complexity intensifies when children are part of the equation, demanding careful legal measures to prioritize their well-being during negotiations.
Historically, Japanese divorce proceedings involving children boiled down to a binary choice – either mom or dad. However, a major shift is on the horizon as the government considers joint custody in Japan as a viable solution in child custody cases. While appearing progressive in response to outdated legal norms, concerns linger about its adequacy in addressing households with unique circumstances, especially those impacted by domestic violence.
Joint custody in Japan: a revision years in the making
This past January, the Family Law Subcommittee submitted a comprehensive proposal for amending the Civil Code. This introduces a brand-new system for divorced couples – a choice between sole and joint custody. When agreements hit a wall, the family court takes charge, factoring in household dynamics. Crucially, the core principle is prioritizing children’s best interests, respecting their lifestyle amidst these significant changes.
Additionally, in a bid to tackle issues around unpaid child support, the draft incorporates provisions like asset seizure for delayed payments, a “statutory child-rearing support” with a mandated financial aid amount, and recognition of grandparents’ visitation rights. Despite opposition from 3 out of 21 committee members, the outline secured approval through a majority vote.
The current setup, detailed in Article 819 of the Civil Code, confines post-divorce child custody to one parent. This process comes with challenges, with heated negotiations as both parents vie for guardianship. The emotional toll is substantial on all parties, often reaching the children. Advocates for joint custody see it as a remedy to sidestep unnecessary family conflicts following already distressing separations.
In truth, discussions around this law have lingered for years. It all started in July 2020 when Japan faced international criticism over cases of foreign parents unable to see their children. Imagine this scenario: a Japanese woman and a foreign man, previously married abroad, now in a custody battle after divorce.
As she takes the child back to Japan amid inconclusive negotiations, international organizations step in.
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Japan eventually ratified the Hague Convention, ensuring a ‘return to habitual residence with visitation rights.’ Problem solved? Not quite, as cases of domestic child removal persist.
In Japan, authorities don’t treat these cases as criminal offenses, but international forums began labeling them as “kidnapping” and “child abduction.” The G20 summit in 2019 saw French Prime Minister Macron visiting Japan and meeting with French nationals who returned home one day to discover they had been cut out of their children’s lives. While each situation is unique, unilateral decisions leave one of the two without a say.
Divorce finalized — what next?
In Japan, divorce is an undeniable part of life. Despite a declining trend since 2003, the year 2020 saw approximately 193,000 divorces with a troubling rise in cases involving minors. In 2020, around 111,000 divorces included underage kids, nearly 60% of the total, impacting roughly 200,000 minors each year.
But once the decision to part ways is made, what’s the usual scenario for divorcing families?
In Japan, fathers face an uphill battle in custody disputes, with a staggering 90% of cases leaning toward mothers. Those seeking legal aid to keep even a modest connection with their children encounter significant obstacles. This pattern might be shaped by societal norms favoring the idea that mothers should be primary caregivers. As a result, fathers often struggle in custody trials, impacting their ability to contribute to their children’s education costs.
Alongside this trend, we observe the common struggle of single mothers facing financial hurdles after divorce. Over about 30 years, single-mother households surged by 1.5 times, hitting 849,000 in 2016, in contrast to the 173,000 single-father households. Despite recent improvements in employment rates, many of them still grapple with insufficient annual income to cover the full spectrum of child-rearing costs.
To complicate matters further, the majority find themselves without any financial support post-divorce. As per the 2021 National Survey of Single-parent Households, a mere 28.1% of single mothers are “currently receiving” the money owed by divorced fathers. And when they do get it, the amount falls dramatically short of the funds needed to raise a child independently – averaging ¥50,485 per month. In nearly 35% of cases, after heated divorces, they even opt to forego the money to avoid dealing with the other party.
In the realm of post-divorce challenges in Japan, a glimpse of hope emerges: joint custody. By dispelling the specter of one parent losing complete access to their child, joint custody could ease disputes and pave the way for mutual agreements.
And it’s not just a remedy for fathers’ legal battles; it’s an opportunity for active involvement in their kids’ lives. This approach might unlock solutions for the widespread issue of poverty among single households. With stronger bonds to their kids, the financial load of raising them could get a fair split – a potential antidote for the sufferings of single mothers after divorce.
Joint custody in Japan: Good intentions, clear gaps
While joint custody post-divorce has its perks, the revision itself isn’t flawless. Opposition swiftly emerged in child-protection circles.
Chairman Naoki Shojiwara, a dissenter in January’s meeting, criticized the insufficient consideration for children’s rights. The Survey on Child Rearing backed her concerns: 60% of kids witnessed heated arguments in their parent’s divorce. To make matters worse, 20-30% saw verbal or physical abuse, raising worries about their mental well-being.
Beyond the psychological load, joint custody poses practical risks to children’s lifestyles. While the revision pushes for parents’ time with the child, it tends to forget the kid’s view. This may lead to long travels between parents’ homes, leaving them feeling rootless and exhausted.
The Japan Society for Infant Mental Health notes a blind spot in the revision — overlooking children’s independent will. Judicial practices sometimes push kids to meet both parents, raising concerns about respecting their autonomy. Children have a voice, and their free will deserves attention.
DV victims on the line
Adding to the concerns is the evident clash between the joint custody revision and the Domestic Violence Prevention Act. In a follow-up press conference, opposing committee members pointed to the absence of a clear path for parties who endured domestic violence. Japan frequently witnesses cases where women, trapped in abusive marriages, see divorce as their only way out. Joint custody could potentially compromise this escape route by requiring regular encounters with their abusive ex-partners.
The outline tackles these scenarios, making sure the pendulum swings toward sole custody. This, of course, hinges on the family court acknowledging the abuse. Lawyers from the Committee to Protect Children from Joint Custody After Divorce stress that in Japan, even with prevalent gender violence, legal recognition of victims’ suffering is far from guaranteed.
Professor Minemae Kaino at Ochanomizu University notes that domestic violence manifests in different forms – physical, mental, economic, and sexual – often challenging to prove in court. The lack of recognition could expose victims to life-threatening situations post-divorce.
Voices from the opposition front
Voices rise as domestic violence victims and activists take a stand. On January 16, a press conference echoed the distress of DV victims and their legal advocates. One woman in her 40s, divorced and residing with her young child, found herself compelled to negotiate with her violent ex-husband. The anguish of this situation also weighed heavily on her child, who struggled with self-harm in the shadow of this abusive reality.
A 30-year-old woman, still awaiting her divorce, shared her fear of being tangled in joint custody due to the struggle to present evidence of prolonged abuse. Domestic violence often hides behind closed doors, escaping notice from family and friends. Once it finally ends, proving its occurrence becomes a daunting task, with survivors often facing skepticism from the courts.
Even within legal circles, opposition stands strong, as revealed by a Lawyer.com survey. Out of 251 surveyed lawyers, an impactful 80% actively opposed or somewhat opposed the outline. When probed about the reasons for their opposition, a majority voiced concerns for the child and the potentially victimized partner.
Additionally, a substantial 77.7% harbored doubts about the extent of discussions before the bill’s submission. Many felt that the proposed system failed to provide clear maps for navigating complex realities.
Dead-end dilemma? Or perhaps not?
The proposal for joint custody carries noble intentions – striving for equal parental rights and financial fairness. Yet, without in-depth discussion and consideration of various scenarios, it risks losing its positive edge. Lacking a sharper focus on the child’s interests, the law might sideline their free will. And even more concerning, it poses a threat to those who sought divorce as their sole escape from violence.
In our modern era, adjusting the outdated sole custody system is imperative. Both parents deserve an equal say. Yet, to achieve this without pitfalls, it must be coupled with accurate recognition of domestic violence, spaces for children to express themselves, and full collaboration with nationwide advocates. Only then can we ensure legal adjustments for human rights don’t end up violating rights in a different way.
Sources
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