Academic journal article Washington International Law Journal

Divorce and the Welfare of the Child in Japan

Academic journal article Washington International Law Journal

Divorce and the Welfare of the Child in Japan

Article excerpt

I. INTRODUCTION

In September of 2010, the Japan Times published a two-part series by a man under the pen name Richard Cory telling the extraordinary tale of his divorce and custody battles over his three children with his Japanese exwife. 1 Three months after filing for divorce, Mr. Cory's ex-wife took their three children, two boys and one girl, and lefthome after months of arguing over the terms of their divorce.2 The mother took the children to a local government office, where she claimed that they were victims of domestic abuse.3 The office directed her to a women's shelter and suggested that she legally change her and her children's names to make it more difficult for Mr. Cory to find them.4 She and the children stayed at the shelter before moving to subsidized housing, where she reportedly abused the children emotionally and physically.5 Mr. Cory continued to search for his children during this time, but the government workers refused to tell him where his children were, and even refused to pass on a simple message on his behalf.6

Three weeks after being taken from home, Mr. Cory's daughter, the eldest child, found a pay phone while her mother was out and called Mr. Cory for help.7 She told him where she was going to school and that she just wanted to go home.8 The next day, Mr. Cory went to his daughter's new school after class and took her home, where she stayed throughout the remainder of the custody dispute.9 After a lengthy court battle, the court eventually decided to award custody of the two boys to the mother and custody of the daughter to Mr. Cory, reasoning that the children were happy with their current living situation and thus relocation was unnecessary- essentially custody by capture.10

While this case was more contentious and dramatic than most, it is emblematic of the Japanese family law system, which fails to consistently make decisions that protect the welfare of children, respect the rights of parents, and facilitate healthy interaction between parents and children following divorce. Divorce is rarely an easy process, requiring the family to divide everything that was shared in marriage, including custody and visitation rights for children. In Japan, this problem is compounded by the inadequate protection of visitation rights, the lack of a joint custody system, and a divorce system that features a procedure called kyogi rikon, which allows the husband or wife to unilaterally determine all the conditions of their divorce without any oversight or guidance.11 These institutions must be reformed because they often fail to protect the fundamental rights of children and noncustodial parents.

Part II of this comment will outline the current Japanese divorce system, showing how visitation is not protected as a fundamental right under the law, which results in extremely limited contact between children and their noncustodial parents. It will also show how the current law does not provide for joint custody, requiring parents to fight over who will exercise sole custody over each child. It will further show how the kyogi rikon system lacks substance, provides no oversight, and does not allow for the creation of enforceable divorce agreements.

Part III will focus on the social implications of this system, showing how visitation is regarded as a basic human right throughout the developed world that is indispensible to the healthy development of children. It will also show how joint custody provides a valuable affirmation to both parents and children that the parent-child relationship will be continually protected after divorce. Finally, it will show how the kyogi rikon divorce system is prone to exploitation and does not require parents to properly plan their postdivorce relationships with each other or with their children.

Part IV will advocate for reform of the Japanese family law system in three key areas: 1) recognition of the right of visitation for the noncustodial parent, 2) creation of a preference for joint custody over children, and 3) reform of the kyogi rikon system to mandate the creation of a detailed parenting plan when minor children are involved, require judicial approval of any divorce agreement, and provide access to mediation and litigation for the enforcement of valid divorce agreements. …

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