Recently, I wrote a little about why joint custody in Japan is rare. By law and precedent, Japan grants legal custody (parental rights, or 親権; shinken) to a single parent after divorce. In practice, this means that one parent – usually the non-custodial father – rarely sees their children post-separation.
Now, Japan is considering a change to the law – and activists worry that women and children will suffer as a result.
There have been challenges to the law before. As President Online’s Mizuno Noriko (水野紀子) reported in January [1], a 40-year-old father sued the government in 2018 on the grounds that the law violated his constitutional rights. And a bipartisan group of legislators in Japan’s Diet’s sponsored a joint parenting bill recently, with the aim of reducing child abductions inside the country. However, none of these efforts bore fruit.
But Nikkei and other sources broke the news recently that Japan’s Ministry of Justice is considering introducing joint parenting as an alternative to the traditional sole-custody approach. The change would bring Japan in line with most other developed nations that recognize joint custody. The change is a potential boon for Japanese dads, who would now have legal tools to avoid complete separation from their kids post-divorce. [2]
Safety in Joint Custody is a Huge Concern
However, activists on Twitter were quick to point out that this change brings the potential for abuse. As I noted in my previous article, some 14% of marriages cite physical or emotional abuse as key reasons for divorce. And then there’s the issue of child abuse. Recent high-profile cases of abuse have highlighted large gaps in Japan’s child protection system. A joint custody law, advocates say, potentially opens the door to even greater abuse.
These concerns have led some activists to take action. The group Committee for Parents and Children Living in Safety and Happiness (あんしん・あんぜんに暮らしたい親子の会) started a change.org petition asking for “a studious debate” on the issue of joint custody. The petition argues that, unlike many Western countries, Japan lacks the necessary support services – such as child support collection systems, rehabilitation programs, and child advocacy agencies – to safeguard the safety of mothers and kids. [3]
Others, such as lawyer Takaki Ryohei (高木良平), echoed this sentiment on Twitter. Takaki argues that the current system already supports a form of joint custody if both parents agree to it. He also batted against proponents of the change who claim it could reduce child abuse:
Exes who can make joint parenting work can do it perfectly well under a system of sole custody. But exes who can’t have that sort of relationship can’t make joint custody work if they’re forced into it. This will only enable harassment from the parent who moved out.
Furthermore, joint custody won’t prevent child abuse. We need to extend the rights of child protection workers and increase manpower to prevent abuse.
Old Law, Old Problems
The lack of joint custody in Japan is a historical artifact dating back to the Meiji era. During Meiji, the politicians and intellectuals restructuring Japan into a modern society largely patterned the country’s laws on French and German legal concepts. However, says Mizuno Noriko, the Meiji founders viewed European family law as too complicated, and too heavily reliant on the intercession of the state. The result was a system that emphasized consensual divorce. As a result, almost 90% of couples in Japan divorce sans mediation and litigation.
Because of these Meiji-era laws, argues Minuzo, there is little civil intercession in family issues. As a result, women and children terrorized by an abusive spouse find themselves with little legal recourse. Cases like the death of Kurihara Mia show that this lasseiz-faire approach can have deadly consequences. Even after telling her teachers that her father abused her, authorities return Mia to his custody. She died at her father’s hands shortly after. “In reality,” writes Mizuno, “the weakest members of the family trapped in power relationships are abandoned.”
Mizuno argues that Japan’s parenting laws shouldn’t change until Japan breaks its habit of non-litigated divorces. “If France tried to implement the Japanese system of divorce,” she argued, “it’s likely that it’d be judged an unpardonable violation of human rights.”
Unfortunately for Japanese families, the country doesn’t appear ready to discuss such a full-scale restructuring of the divorce system. Given the current legal climate, joint custody, far from being a bandage, is likely to open new wounds.
Sources
[1] 「離婚しても子に会いたい」は親のエゴか. https://president.jp/articles/-/27273
[2] 選択的共同親権、法務省が本格検討へ. https://www.nikkei.com/article/DGXMZO41264900U9A210C1EA1000/
[3] ＤＶ・虐待被害者の安全を守ってください！加害者との面会交流・共同親権に慎重な議論を求めます. https://bit.ly/31AcWGb
