17 April 2024
By Shaimaa Khalil, Tokyo correspondent
Delivered
Minako (right) and her daughter were separated for years
Japan's parliament has approved an amendment to a decades-old law that will allow divorced couples to share custody of their children starting in 2026.
Traditionally, custody is awarded to a single parent, who can then completely deny the other parent access to the children.
Until Friday, Japan was the only G7 country that did not recognize the legal concept of joint custody.
Most divorces in Japan are through “consensual divorce,” in which both parties sign a document and mutually agree to end the marriage.
In this case, lawyers say, the couple is free to decide on custody and visitation arrangements. However, if the two parties go to court, the judge will award custody to one parent.
This system has been criticized by divorced parents who say it has alienated them from their children.
Minako Sato* is one of them.
When Ms. Sato moved into her elderly mother's house for a few months to help out, she and her ex-husband agreed that he would bring their then 10-year-old son and five-year-old daughter to visit on weekends.
This arrangement lasted for about a month and a half, but Ms. Sato said she noticed that her former husband had changed – he had become quieter and more distant.
“He stopped talking to me when he took the children to my mother's house,” she said.
“At first I thought he was tired from driving. I didn't understand what was going on.”
He then told her that he would no longer bring the children to her every weekend because his mother had called her a bad influence.
“Whoever takes the child away gets custody”
“He said if I came near the (family) house he would call the police. I was afraid to go near the house … (in case) he became violent or told lies (about me) to the police.”
She tried calling the house – which her husband and children shared with her mother-in-law – but her calls were blocked. In a desperate attempt to see her daughter, she decided to show up anyway.
“I went to talk to my mother-in-law. I thought maybe she could talk to him so he could take me back home.”
Instead, her mother-in-law called the police.
“Five or six police officers came. They said they would not let me go unless I went to the station with them,” Ms. Sato said.
She stayed there for three hours with her daughter, who got into the police car with her.
This would be the longest time she spent with her daughter in years – before her estranged husband and his lawyer came to pick up the child.
“In the end, the police officer said he was sorry but he couldn’t help me.”
After being separated from her children for two years, Ms. Sato learned that her ex-husband had been awarded sole custody of the children.
“I knew at that point that whoever took the child would get custody,” she said. “I knew that was going to happen.”
Akira Ueno, a lawyer specialising in child abduction, told the BBC that the system dates back to before World War II and is based on the idea that children are “the property of the household”, with the head of the family being a man.
“If the woman gets divorced, she will eventually be thrown out of the house, while the child will stay with the father,” explains Mr. Ueno.
This changed later, when women increasingly became the primary caregivers of their children – today, sole custody goes to the mother in most cases.
Getty Images
Ai Fukuhara (R) of Japan and Hung-Chieh Chiang made headlines after he accused her of kidnapping their son
Last year, the laws came into the spotlight again when Japanese table tennis star Ai Fukuhara was accused by her ex-husband of kidnapping their son.
Chiang Hung-Chieh, a Taiwanese table tennis player, said they filed for divorce several years ago, with both reportedly agreeing to joint custody for the duration of their stay in Taiwan.
But after returning to Japan with her son, she cut off contact with Chiang and refused to take her son back to Taiwan. Earlier this year, the duo announced they had reached a settlement – nearly two years later.
But not everyone is happy with the new bill on joint custody.
Some women's rights activists believe the new bill would force women who accuse their husbands of domestic violence to maintain contact with them.
“If we introduce the joint custody system, victims of domestic violence and abused children will be under the control of the abuser. They will not be able to escape,” said lawyer Harumi Okamura.
Ms Okamura has many years of experience with cases where women have taken their children with them and fled domestic violence and abusive marriages. She adds that these women feel they can only raise their children if they are free from the abusive partner.
However, other lawyers have told the BBC that joint custody and domestic violence should not be confused.
“Dear Mom, how are you? I haven’t seen you in years.”
One and a half years after the divorce proceedings were finalized, Mrs. Sato learned that her two children had moved out of their shared home.
She went online and found that the house was for sale.
“One day I passed by and there was nothing. No car, no bikes, nothing. I didn't know what to think. I didn't know where they were going,” she said.
Ms. Sato said she contacted the police and reported her children's abduction, but the only response she received was that her children were fine and with their father. In addition, her ex-husband did not want her to know where the children were, so they could not tell her.
“There is no restraining order against me. Legally, I should be able to see my children. I should be able to know where they live,” she said.
If a divorce dispute between parents lasts more than a year and the child lives permanently with one parent, this becomes an important factor in the judge's decision on who gets custody, explains Mr. Ueno.
“Whoever takes the child first has the advantage,” said Mr. Ueno.
Delivered
Mrs Sato's son (right) and daughter were only ten and five when the separation took place
While Japan's criminal law has a clear penal code for “kidnapping a minor,” the interpretation becomes much more ambiguous when it comes to a parent's abduction of their own child. Lawyers say authorities generally do not treat this as kidnapping.
“In Japan, this is known as 'living separately with children' – and it is tolerated,” Mr Ueno said.
“The police don't intervene and say it's a matter between spouses. They don't intervene. That's a cultural norm in Japan.”
Visitation rights are also not a legal right in Japan and are subject to the discretion of a judge.
Ms. Sato's first attempt to obtain visitation rights for her children failed after a judge denied her request on the grounds that there was a serious dispute between her and her soon-to-be ex-husband.
Ms. Okamura explains that in most cases, judges only grant visitation rights when they believe it is beneficial for the child. And when these meetings are granted, they are supervised.
After being completely separated from her children for three and a half years, Ms. Sato was finally granted visitation rights to her children in August last year.
“I tried for three years to see my children,” she said through tears. “I was so tired then.”
The first meeting was a trial visit – Ms. Sato, her son and her daughter were in the same room for the first time in years – but in court and under court supervision.
She was given 30 minutes to talk to them and was told not to ask specific questions about their life, where they lived, where they went to school, or the names of their friends.
She was not given a specific reason why she had to limit herself to “limited questions,” but she had heard that other divorced parents had been told similar things.
“My daughter was very quiet. It had been three and a half years, so I think she was shy. But she said she wanted to see me and that she loved me.”
Her daughter also showed her a letter that said: Dear Mom, how are you? I'm worried because I haven't seen you for four to three years. I'm in third grade now and I have many friends. I love you and want to see you soon!”
Ms. Sato smiles when she talks about her son, who is now a teenager.
“I asked him three or four times, 'Is that you?' Because he had grown so much,” she said. “He's much taller than me now.”
If Japan had had a joint custody system, “none of this would have happened,” she adds.
She expresses hope that the bill will ultimately help end cases of child abduction by parents. Mr. Ueno, however, is less optimistic.
He doubts that the authorities will actually take action against the child abductors. Moreover, there are still very few details about how the joint custody system will actually be enforced.
“Frankly, I think the bill is a flimsy framework – a bill without substance,” he says. “How can you enforce joint custody when there is no infrastructure to do it?”
Back in Tokyo, Ms. Sato is finally allowed to visit her children regularly. She can now see them once a month.
She says she doesn't know much about her life, but she hopes to make up for lost time.
“At least I have the chance to see my children,” she says, smiling through tears.
Additional reporting by Yumi Herman and Chie Kobayashi
*Names have been changed to protect their identities
Comments are closed.