There are growing calls for a review of the “sole custody” system, which allows only one parent to have custody of a child after divorce. On November 22, a group of parents who say they are no longer able to see their children freely because they do not have custody filed a lawsuit claiming that the current system is unconstitutional. As the number of people who want to continue to be involved in raising their children after divorce increases, the debate over whether or not to introduce joint custody is advancing.
The question is, “Why can’t I see my beloved children after divorce or separation? On April 22, twelve men and women from eight prefectures who had difficulty raising their children due to divorce or other reasons filed a lawsuit with the Tokyo District Court seeking a total of 12 million yen in damages from the government, and held a press conference in Tokyo. According to the lawyers, this is the first class-action lawsuit to seek compensation from the government for the unconstitutionality of the sole custody system.
According to the complaint, the twelve were unable to see their children freely due to divorce or separation. They claim that the right to care for their children is a fundamental human right guaranteed by the Constitution, and that the government’s failure to establish a joint custody system after divorce is illegal.
One of the plaintiffs, who divorced when her child was one and a half years old, claimed that she has never been allowed to have visitation with her child three times a year, even though it has been about 11 years.
Parental authority refers to the duty and right of parents to protect and supervise their children, to provide them with education and to manage their property. The Civil Code stipulates that parents have joint custody during marriage, and one of them has custody in the event of divorce. About 200,000 couples divorce each year, and in most cases, the mother has custody because she is more likely to take care of the child on a daily basis.
While sole custody makes it easier to make decisions regarding child rearing, such as schooling and medical care, it also makes it harder for the parent who loses custody to be involved in child rearing. In many cases, even if the frequency and duration of visitation is decided through mediation or trial, it is not adhered to and the interaction with the child is cut off.
The number of disputes over children in divorce is increasing. According to judicial statistics and other sources, the number of mediation and adjudication cases filed by parents who are at odds with each other over the custody of their children rose to 44,300 in 2018, an increase of about 11,000 from 2009. In 2006, there were about 13,000 mediation petitions filed by separated parents seeking visitation with their children.
As a background, experts point out that the ties between children and their parents are becoming stronger due to the increasing number of dual-earner households and fathers participating in childcare, as well as the declining birthrate.
In response to this situation, a study group of university professors and judges began discussing the pros and cons of introducing joint custody after divorce in November. Since there are some cases of divorce due to abuse or domestic violence (DV), the study group will sort out in which cases joint custody should be granted and how the parents should be involved in decisions related to the upbringing of their children, assuming the introduction of joint custody. Then, if the Minister of Justice decides that introduction is necessary, he will consult with the Legislative Council.
Masayuki Tanamura, professor of family law at Waseda University, pointed out that “joint custody is a global trend, but its introduction will not solve all problems. In the case of a joint custody system, it is necessary to consider the rights of the child as the top priority and have a comprehensive discussion on how to establish a support system for victims of abuse and domestic violence.
Joint custody” is the mainstream in Europe and the United States.
According to a survey commissioned by the Ministry of Justice, many countries, including the United States and the United Kingdom, allow joint custody after divorce. It is said that visitation with the parents is regarded as a “right of the child” and there is a strong tendency to actively allow visitation after listening to the child’s opinion.
In the Meiji Civil Code, which strongly reflected the family system, the father had sole custody in principle, and the mother only had custody in exceptional cases such as the death of the father. After the war, the Civil Code was amended to the current system, but at that time it was not considered a big problem because sole custody was the mainstream in Western countries as well.
The state of California in the U.S. introduced a system of “joint custody” in the 1970s. The state’s basic policy is for parents and children to continue to visit each other after divorce, and this policy has spread across the United States since the 1980s. If the parent with custody interferes with visitation, he or she is subject to fines, detention, and other punishments.
In addition, South Korea had a principle of giving priority to fathers in terms of custody after divorce, but the Civil Code was amended in 1990 to allow the choice of sole or joint custody.