That was three years ago. Izumi, who asked that her family name be withheld to protect her children’s identities, has not met her since.
Within a month, Izumi said, her children were taught to say, “I hate my mother.”
When she took her case to court, she received a response that is all too familiar to thousands of Japanese parents. The children have now been settled with a former spouse and visits would only disrupt them and their new household, a judge said before granting sole custody to the father. Izumi had to be content with sending photos once a month.
Japan is unusual among developed countries because it does not recognize the concept of joint custody. The custom of giving sole custody to one parent means that hundreds of thousands of mothers and fathers face potential barriers to seeing their children and that children are denied the right to see both parents when they grow up, lawyers say.
Rights for children
But now a combination of international pressure and legal efforts in Japan could lead to a re-examination of the country’s custody laws.
Tomoshi Sakka, a lawyer who has worked on legal cases, said there is a growing public awareness that children have their own fundamental rights to see both parents.
“The law sees the problems related to parents rather than basic children’s rights,” he said.
Sakka has filed three “intertwined” lawsuits arguing that under the Japanese Constitution, parents have a basic human right to see their children, that the lack of a law preventing parents from leaving with their children is an unconstitutional violation which represents children’s rights and that courts should enforce parental visits.
All cases are at different stages, but a verdict on the first case is expected in November.
Japanese courts operate on what is known as the “continuity principle” and almost always grant sole custody of anyone who has physical control over the children when a case is before them.
This reflects Japan’s now-abolished family system in which children were viewed as the “property” of households, and the prevailing idea that courts should not disturb those households. It’s also an idea that Japan’s conservative establishment is clinging to.
In practice, this means that parents who seek custody of their children just have to flee with them to a new place and deny the other parent access. Courts almost always reward the “kidnapper” with sole custody.
The courts in Japan lack specific statutory rights to enforce visiting rights, which means that it is up to the parent or guardian to decide whether the other parent receives even occasional access or messages.
Challenges from Europe
The issue has long been linked in the media and the general public with foreign fathers who protested for years after their Japanese wives fled with their children and then refused to be seen.
Some Japanese men are now stepping forward and pressing for the right to see their children. Such are Japanese women like Izumi.
The Japanese Ministry of Justice has argued that current custody rules are designed in the best interests of children. When marriages end badly, having children raised by a single parent is less of a worry, officials say.
Challenges are brewing outside of Japan as well. A campaign by a French father and an Italian father has also put significant pressure on Japan to review its laws.
The lobbying work of Vincent Fichot and Tommaso Perina led the European Union to take action. In 2018, 26 EU ambassadors wrote a joint letter in which they had the right to see both parents, citing the UN Convention on the Rights of the Child. This message was strongly underlined in a resolution by the European Parliament in July.
Now the European legislator is urging the EU to link its trade agreement with Japan in 2019 to the issue of custody in the context of a parallel agreement that obliges both sides to comply with international human rights treaties.
“Foreign pressure is becoming more and more important,” said Seiichi Kushida, an opposition lawmaker who has led demands for change in the Japanese parliament, the state parliament. “Public support for our proposals is still not as strong as we would hope. So the walls we have faced are thick.”
Under then Prime Minister Shinzo Abe, the government set up a panel to investigate legal issues related to custody and to investigate systems in 24 other countries – almost all of which allow joint custody.
This body does not have the power to propose laws, but Kushida has “high expectations” that Japan’s new Justice Minister Yoko Kamikawa, who was appointed to the role for the second time last month, will help drive law changes.
Kamikawa was the vice-chairman of a group of 90 legislators – 713 of them in the state parliament – who advocated joint custody.
“It is important to consider the greatest possible benefit for children,” she told the Yomiuri newspaper shortly after taking office. “This is in line with global trends and I want to continue the discussions.”
In the past few decades, men have worked long hours and women have looked after children. In around 90 percent of the cases, the courts have given women custody. Today, more and more Japanese men are seeking custody after divorce – and more and more women are denied access to their children.
At a notable press conference last month, 23 mothers and one grandmother – including an Australian woman – shared heartbreaking stories of being denied access to children.
Izumi said her children’s schools refused to help and a public children’s help desk refused to intervene because there was no evidence of physical abuse.
“Today my husband only sends me photos every two months. He says that doing this yourself is against the welfare of our children. But what is “Child Wellbeing” about? I don’t know who to turn to. “
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