Academic journal article The George Washington International Law Review

Protecting the Parent-Child Relationship

Academic journal article The George Washington International Law Review

Protecting the Parent-Child Relationship

Article excerpt

I. INTRODUCTION

Over the past twenty years, an increase in travel and globalization sparked a rise in the cross-cultural marriage rate. In 2010, for example, the number of marriages between Japanese nationals and foreigners doubled from a decade ago, increasing to approximately forty thousand a year, with over twenty thousand children born of those marriages.1

When these international marriages succeed, cultural differences between spouses may be less important than if the marriage were to unravel; then, cultural norms concerning child custody become important.2 This is especially true if one parent wants to return to a native country with the child, thereby jeopardizing the other parent's relationship with the child.3

In these situations, the 1980 Hague Convention on Civil Aspects of International Child Abduction (Convention or Hague Convention) provides a procedure by which to determine where the custody hearing should be held.4 Typically, signatory nations must return children to their countries of habitual residence unless an enumerated exception exists.5 This approach offers a remedy for cases of international child abduction-whereby one parent moves with the child to another country without the other parent's consent-and protects both parents' rights to access their child.6

However, the Convention's primary concern with jurisdiction maintains the importance of signatories' custody laws in protecting children's relationships with both parents following a divorce. Japan became a signatory to this Convention in 2014,7 perhaps signaling a shift in its approach to child custody matters that, until recently, often negatively impacted children's relationships with one parent8 and resulted in the fact that many children in Japan did not have significant relationships with their foreign parents after divorce.9

Custody standards in the United States previously resembled those of modern Japan, with a preference for one parent-typically the mother.10 However, the United States has moved toward joint custody and specific guidelines for awarding custody and visitation, prompting the question of whether Japan will experience similar developments, particularly in light of Japan's recent ratification of the 1980 Hague Convention on Civil Aspects of International Child Abduction.

This Article uses the U.S. experience with child custody to examine the ways in which Japan can help protect both parents' rights in light of its recent commitment to the Hague Convention.11 Part II of this Article explores the development of the child's best interests standard and joint custody in the United States, while Part III examines the Japanese legal framework on custody. Part IV of this Article offers several ways in which Japan can move to protect both parents' rights to a child, especially where one parent is a foreigner.

II. THE EVOLUTION OF CHILD CUSTODY LAW IN THE UNITED STATES

Child custody is always a significant issue in divorce proceedings, especially when both parents are fit and each is asserting a custody claim. The process for determining child custody in the United States continues to evolve because the roles that parents are expected to play during marriage and after divorce continue to change both socially and legally. Further, each state has its own child custody laws because family law falls within the domain of the states.12 Nonetheless, two major shifts can be identified that resulted in modern U.S. custody law: a shift from gendered to gender-neutral custody standards and a shift from sole to joint custody.

A. The Custody Presumption Shift Based on Gender

It is important to note at the outset that there are two types of child custody: legal and physical. Legal custody provides a parent the power to make major decisions for the child, while physical custody determines with which parent the child lives.13 The custody framework has evolved considerably throughout the years, undergoing several transformations in the relevant presumptions and standards. …

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