Who gets parental authority (child custody) in Japan?
Did you know there is no joint custody of a child (sharing child custody) after divorce under Japanese child custody laws? Once a divorce takes place, the parents must decide who will get parental authority (also known as child custody). Often times the couple is unable to come to a decision regarding custody, and then other methods are necessary for reaching an agreement. Read below to learn how custody of the child(ren) is decided and other important information pertaining to parental authority in Japan.
How is custody decided?
Child custody in Japan, meaning the custody of children under the age of 20, is decided based on two primary factors:
- Who is currently living with the child after the separation took place, and
- Who has been the primary caretaker of the child.
In addition, the child’s opinion may be taken into consideration by the court so long as the child is 15 years of age or older.
You should also be familiar with Article 32 of the Act on General Rules for Application of Laws as it concerns the legal relationship as determined by the child’s national law: The legal relationship between parents and their child shall be governed by the child’s national law if it is the same as the national law of either the father or mother (in cases where one parent has died or is unknown, the national law of the other parent), or in other cases by the law of the child’s habitual residence.
Respecting the will of the child
The principle of continuity applies when deciding custody. According to Japanese child custody law, it is best not to alter the child(ren)’s environment because of the parents’ circumstances. The less change in the child’s environment, the better.
The family court will try to understand the intentions of the child by hearing statements from said child in proceedings for adjudication of domestic relations regarding a parent and child, parental authority or guardianship of a minor, or in proceedings for adjudication of domestic relations the outcome of which would affect a minor (Article 65, Domestic Relations Case Procedure Act). Such considerations will take into account the child’s age and degree of development.
Other considerations for custody
Other matters taken into consideration include the physical and mental health of the parents, whether siblings can live together, the existence of custody cooperators, how much time a parent has to take care of the child(ren), the economic situation of the parents, and so on. The parent’s attitude towards visitation will also be considered, and generally priority is given to the female parent (especially if the children are infants/toddlers).
When you cannot reach an agreement
If the couple cannot decide who should receive custody of the child, they may apply for mediation at the family court, whereby the couple will negotiate the custody through mediators at the divorce court. This method, of course, involves a divorce lawyer.
If an agreement cannot be reached even after mediation, then the couple may allow the family court to make the final decision.
Contact an English-speaking lawyer
The facts presented in this article represent an overview of matters concerning child custody and parental authority in Japan. However, they are not exhaustive, and therefore warrant the need to contact an English-speaking lawyer to fully assess your specific case and avoid common pitfalls that can be encountered especially when foreign parents deal with child custody cases in Japan.
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This page is intended to be used for informational purposes only and should not be a substitute for obtaining professional legal advice. For advice from a lawyer, please call the number listed above.