Government Considering Joint Custody after Divorce: Encouraging Visitation and Fostering Healthy Relationships

Government Considering Joint Custody after Divorce: Encouraging Visitation and Fostering Healthy Relationships (Yomiuri Shinbun), July 15th, 2018)

 The government is considering a review of the “sole parental authority” system in which one of the parents has parental authority📎 after divorce. A system that allows both parents to choose “joint parental authority,” where both parents retain parental authority after divorce, has been introduced. The aim is to ensure the sound upbringing of children by encouraging visitation between parents and children, with both fobos taking responsibility for child rearing.

 The Ministry of Justice is expected to consult with the Legislative Council (an advisory body to the Minister of Justice) in 2019 on revising the Civil Code to review the parental rights system.

 The Civil Code, enacted in 1896, strongly reflects the family system. It has been pointed out that parental rights are misunderstood as the right of control over children, leading to child abuse. The revised Civil Code, which came into effect in 2012, clearly states that parental rights are “for the benefit of the child,” and the government is planning to initiate further legal revisions from this perspective.

 Sole custody after divorce is stipulated in Article 819 of the Civil Code, and either parent becomes a stranger under the Family Registration Act. The parent who has custody has the rights and duties to educate the child and manage the property, but the parent who does not have custody can hardly be involved in raising the child and visitation is severely limited.

 On the other hand, in Europe and the U.S., joint custody is the mainstream, and parents are jointly responsible for raising their children even after divorce, as they recognize that both parents are necessary for the healthy development of the child.

 With regard to the revision of the Civil Code that prioritizes the interests of children, the government will also consider expanding the scope of “special adoptions,” in which the parent raising the child becomes the biological parent in the family register. In June, Justice Minister Kamikawa consulted the Legislative Council on a review of the system. In order to increase the opportunities for children who are unable to live with their parents due to abuse or economic circumstances to be nurtured in a stable family environment, it has been proposed to change the age of adoption from under 6 to under 12 or under 15.

 The problem of “illegitimate births” is caused by the “presumption of legitimacy” rule, under which a child born within 300 days of divorce is considered to be the child of the ex-husband. The government is considering amending the Civil Code to allow mothers and their children to file a lawsuit to deny legitimacy, which only husbands or ex-husbands can do.

📎Parental authority: Parental rights and duties that parents have towards their minor children. There are three types of parental rights: custodial rights, which include personal care and education; management rights, which include property management and contracts; and disciplinary rights, which include punishment within the scope of discipline. Under the Civil Code, the custody of a child after divorce must be given to one of the parents.

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