Groundbreaking bill brings changes to custody decisions in Japan

Image by Alexandra Nakamitsu Japan, 2023.

Sitting in a café next to one of Tokyo's busiest train stations, Naoto Matsumura recounts one of the most difficult experiences of his life: the moment he realized he had almost lost his daughter.

His social media bio describes him as many things: a freelance IT technician, an entrepreneur coach, and a representative of the joint custody movement in Japan.

In 2018, Matsumura and his ex-wife filed for divorce. After a bitter custody battle, Japanese family courts only granted him 48 hours of visitation rights per month for his two children. He considers himself lucky because, according to Matsumura, that period can drop to one to two hours per month. The Japanese Civil Code has no formalized system for enforcing visitation rights, making it difficult for parents to see their children and exercise their visitation rights.

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“I spoke to child welfare services, lawyers and the police, but none of them did anything. I quickly realized that this was what was going to happen and that there was nothing I could do,” Matsumura said.

Matsumura's ex-wife still has custody of their child. Based on his experience with the Japanese family court, he took it upon himself to campaign for joint custody, as it is a basic right for children of divorce.

“The root of the problem in Japan is that in the event of a divorce, sole custody is the obvious choice; that a child never sees either parent is the natural course of things,” Matsumura describes the status quo.

In fact, Japan is unique among most developed countries (and the only country among the G7) in not having recognized joint custody at all and has been internationally criticized, particularly in cases involving a foreign parent.

However, this is set to change. In March 2024, the government passed a bill that introduces joint custody, changing the decades-old practice of sole custody. Supporters of the bill hope that it will be fully passed and implemented by 2026.

The bill represents a fundamental change to Japan's family court system and gives parents the option to choose between sole or joint custody.

The bill states that if parents cannot reach a joint decision on custody of a child, the family court will weigh various factors to make a decision in the best interests of the child. It also states that in cases of domestic violence, the court will make exceptions and enforce sole custody. It also proposes strengthening child support provisions, which both sides agree need improvement.

Some experts say the previous, long-standing system of sole custody stems from Japan's traditional family and gender dynamics, which are deeply rooted in the country's culture. According to estimates by the National Institute of Population and Social Research, Japanese women do about 80% of household chores, indicating the deeply ingrained notion that they are responsible for childcare and housework. In 2022, 90% of divorced mothers were granted sole custody of their children.

Critics and supporters, including lawyers and divorced parents, alike voiced their opinions on social media.

Supporters of the law, such as Matsumura, say it will strengthen family ties and improve children's welfare. Critics, such as lawyers and NGOs that support single mothers, argue that joint custody would open the door to domestic violence and give unsuitable parents access to their children.

“The percentage of single mothers who actually receive child support is extremely low, around 24%,” says Kidsdoor founder Yumiko Watabane in response to the changes in child support law. Kidsdoor is a non-governmental organization that supports children in need who face problems such as poverty, domestic violence and bullying. Many of the children it supports live in single-parent households, the vast majority of them in the care of single mothers.

However, Watabane remains skeptical of dual custody. She believes the government's top priority should be to support single parents, who already face disproportionately high poverty rates. According to a 2021 study by Japan's Ministry of Welfare, 44.5% of single-parent households in Japan live below the poverty line, although that number is declining. Watanabe points out that this is a gendered issue, as the majority of these parents are single mothers.

“Those who do not pay child support will not face punishment from society or the law,” says Watanabe. “We have all these problems, but now they want joint custody and the right to make all decisions about the child.”

This view is shared by other opponents of dual custody, who point out the irony of demanding parental rights when many people cannot pay child support.

Critics of dual custody also say the bill will have a detrimental impact on parents and children who are victims of domestic violence.

Harumi Okamura is a lawyer and member of the Association of Lawyers Who Want to Provide Accurate Information on Joint Custody, an association made up of 423 legal experts who oppose dual custody. She believes that the introduction of dual custody in Japan will increase the number of domestic violence cases and make it even more difficult to protect victims.

“Even in cases of abuse, courts still grant visitation rights. Then when we allow joint custody, we give abusive parents the power to make decisions about their children,” Okamura said.

She is deeply concerned that potentially unsuitable parents are being awarded joint custody, thereby perpetuating the vicious cycle of financial exploitation and child abuse.

“I can imagine a situation where victims of spousal abuse are forced to pay their ex-spouses money to make certain decisions regarding their children,” she says.

Although the bill states that joint custody can only be granted with the mutual consent of the parents, critics fear that victims could be coerced and threatened into agreeing to shared custody.

In 2018, about 31% of women and 19% of men reported experiencing intimate partner violence. This number has increased sharply during the COVID-19 pandemic. Experts also believe that the strong stigma surrounding reporting domestic violence causes many victims to suffer in silence.

Most supporters of the law do not dispute this. But they say there is still a place for dual custody in Japanese society. Mori Meguri, a dual custody activist and a single mother herself, believes finding a way for shared custody is essential for the welfare of children. Meeting her at a community center in central Tokyo, you can sense her tenacity and ambition.

Their views on the benefits of shared custody have a distinctly conservative undertone, pointing to men's rights and family values. Most politicians and organizations that support shared custody belong to the right-wing camp.

“When the courts deal with a couple who are fighting, they simply give one parent sole custody and say it's in the best interest of the child,” she says, exasperated. “We don't give the child the opportunity to learn from the ordeal and become stronger, we simply prohibit them from seeing either parent. I don't think that's in the best interest of the child.”

She believes that Japanese courts have done what was easiest for them to enforce – even in cases where both parents were able to care for the children.

According to Meguri, another advantage of this bill is that men would have to take responsibility for the children, thus relieving women of housework.

“I was a single mother myself. I was also a single mother who experienced poverty. When my daughter was one year old, my then-husband told me, 'I can't imagine making you or our child happy, so please divorce me.' Since Japan has sole custody, he was free again, no longer a father, no longer a husband.”

Meguri also advocates for parents who genuinely want to see and care for their children but cannot do so under the current Japanese system. She wants people on the other side to recognize those who divorce amicably and are willing to share custody of their children. Like Matsumura, she notes that the current visitation arrangements are far too inadequate.

Others argue that the current lack of joint custody is a violation of international human rights law. John Gomez is the chairman of Kizuna Child-Parent Reunion, a non-governmental organization that advocates for children's rights and emphasizes the importance of a good relationship with both parents.

He is particularly concerned that the previous family law system essentially permitted child abductions by parents, and has appealed to international bodies to put pressure on the Japanese government. Child abductions by parents have attracted the most international media attention when a foreign parent was involved, as it can be particularly difficult for foreigners to navigate Japanese courts.

He points to the Hague Convention on the Civil Aspects of International Child Abduction, to which Japan is a signatory. The 1983 treaty sets out a set of rules aimed at preventing child abductions by parents or others across international borders. Gomez believes Japan's current system violates this treaty.

Critics and supporters on both sides agree on one thing: the system before this bill was flawed. Few believed that the courts had the child's best interests in mind.

Custody disputes can often become bitter and heated, tearing families apart. Many, like Meguri, are keen to stress that these disputes involve vulnerable children whose well-being could be at risk.

“If we continue with this system of sole custody, thousands of children will not be able to see their parents. I want the other side to explain to me how these countless children can see their families.”

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