Motion to change custody, Motion to hand over the child, Motion for visitation (Fukuoka Family Court)

Fukuoka Family Court

2012 (Family) No. 1139 / 2012 (Family) No. 1140 / 2012 (Family) No. 1392

December 04, 2014

Petitioner in the first and second cases and opponent in the third case (hereinafter referred to as the “Petitioner”) X
Attorney at law: Zenjiro Seigen
Shigenobu Okano
Mariko Seigen
Petitioner in the third case and opponent in the first and second cases (hereinafter referred to as “opponent”) Y
Kazuyo Iwashiro, Attorney at Law
Yukiko Yumi
(Attorney at law for the same) Wataru Iwashiro
Person in charge of the case Z

Main text

(1) The custodian of the subject of the case shall be changed from the other party to the petitioner.
(ii) The other party shall be designated as the custodian of the subject of the case.
(iii) The petitioner’s request for the surrender of the subject of the case shall be dismissed.
(iv) In the Tokyo Family Court Case No. XX of 2010 for Mediation for Adjustment of Marital Status and Case No. XX of 2011 for Mediation for Designation of a Child’s Guardian between the parties, paragraph 4 of the mediation clause of the mediation concluded on July 12, 2011 shall be replaced with the following: “The other party shall request the petitioner to change the custodian of the subject of the case from the month in which this judgment becomes final and binding to the month in which the subject of the case reaches the age of 20 years. The other party shall pay to the petitioner 20,000 yen for each month from the month in which this judgment is finalized until the month in which the child reaches 20 years of age (excluding the month in which visitation that satisfies all of paragraphs 1 through 3 of the attached visitation guidelines is conducted). (v) Paragraph 7 of the aforementioned mediation clause shall be changed to read as follows
(v) Paragraph 7, items (i) to (iv), (vi), (vii), (ix), and (x) of the aforementioned conciliation clause shall be changed to read as follows: “The other party shall allow the petitioner to have visitation between the petitioner and the person in question in accordance with the attached visitation guidelines. (vi) Change item (vii) of the aforementioned mediation clause to read as follows
(vi) The pillar of paragraph 7 of the above-mentioned mediation clause shall be deleted, and in item 8 of the same paragraph, the phrase “the visiting days set forth in accordance with item 6 of this paragraph” shall be changed to “the visiting days set forth in paragraph 1 of the attached Visiting Exchange Guidelines,” and in item 14 of the same paragraph, the phrase “the visiting exchange described in this paragraph” and in paragraphs 10 and 14 of the same paragraph, the phrase “the visiting exchange described in paragraph 7” shall be changed to “the visiting exchange described in the attached Visiting Exchange Guidelines.
(vii) The opposing party’s requests for the rescission of Paragraphs 7(11) through (13) and the rescission or modification of Paragraphs 10 through 12 of the aforementioned Conciliation Clause are both dismissed.

Reason

First, the purpose of the petition.

I. Cases 1 and 2

  • (1) The custodian of the subject of the case shall be changed from the other party to the petitioner.
  • (2) The other party shall deliver the subject of the case to the petitioner.

(2) The other party shall deliver the case to the petitioner.

  • (1) The mediation concluded on July 12, 2011 (hereinafter referred to as the “mediation in the preceding case”) in the Tokyo Family Court Case for Marital Relationship Adjustment Mediation No. XX of 2010 and the Tokyo Family Court Case for Child Custody Designation Mediation No. XX of 2011 between the parties (2) Paragraph 4, Paragraph 7, Items 11 through 13, Paragraph 11 and Paragraph 12 of the conciliation clause of the previous case (hereinafter referred to as the “previous case conciliation”) shall be revoked.
  • (2) Paragraph 4, Paragraph 7, Items 11 through 13, Paragraph 11, and Paragraph 12 of the conciliation clause of the previous case (hereinafter referred to as the “Conciliation in the Previous Case”) are revoked. [3] From April 1957 to March 1964, four times per fiscal year (from April to March of the following year), and [4] From April 1964 to July 7 of the same year, once. The date and time of such visitation shall be determined by both parties in advance through good faith consultation, giving consideration to the welfare of the child. The date and time of such visitation shall be determined by mutual consultation between the parties in advance in consideration of the welfare of the child.
  • (3) Paragraph 10 of the conciliation clause of the previous case shall be changed to “The other party shall notify the petitioner in advance of events (entrance ceremonies, visitation days, sports events, etc.) of the educational institution that the petitioner attends or will attend in the future until March of the year following the year in which the petitioner reaches the age of 22, and shall allow the petitioner to attend such events in consideration of the welfare of the child. The petitioner’s attendance at these events shall be permitted with consideration for the welfare of the child. This shall be amended as follows

Second, Summary of the Case

 The petitioner alleges that: [1] the other party is violating the welfare of the petitioner by making her reject the petitioner; [2] the other party is obstructing the implementation of visitation exchanges, which was the premise for designating the other party as the custodian; and [3] the petitioner has no other means to secure visitation exchanges other than seeking a change in custody. (3) The petitioner has no other means to secure visitation other than seeking a change of custody, (4) The petitioner has sufficient performance and ability to take care of the child, and on the grounds that it is necessary to change the custodian for the benefit of the child, the petitioner sought a change of custodian and surrender of the child to the other party, as well as dismissal of the petition by the other party to change the conditions of visitation. In response, the other party filed a motion to dismiss the petition.

 On the other hand, the opposing party, arguing that although it has been making efforts to realize visitation, it is unavoidable that visitation cannot be implemented immediately because the case herself still shows strong rejection to the petitioner, and that the opposing party is taking proper care of the case herself, seeks dismissal of the petition for change of custody and surrender of the child by the petitioner, and also seeks rescission or modification of a part of the mediation clause of the mediation in the previous case concerning visitation.

Third, Judgment of this Court

1. According to the record of the case, the following facts are found.

  • (1) Circumstances during the period of cohabitation of both parties
    • a. The petitioner (born in April 1973) and the other party (born in April 1974) met when they were both working for A Corporation, got married on October ○○, 2007, purchased a detached house in B City in October of the same year, moved there, and had their first son, the subject of the case, on October ○○ of the same year.
    • (b) After the birth of the subject of the case, the other party took childcare leave, and the other party was mainly responsible for the care of the subject of the case, but the petitioner was also involved in the care of the subject of the case in terms of feeding him milk, changing diapers, bathing, etc.
    • c. The child in question entered a nursery school in B city in April 2008, and the petitioner completed her childcare leave in May of the same year and returned to work with a reduced work schedule of six hours a day. Although the other party was mainly responsible for the custody of the child, the petitioner was also involved in taking care of the child by feeding her breakfast and sending her to the nursery school on weekday mornings, as well as taking care of her meals, changing her diapers, bathing her, and putting her to bed on holidays.
    • (d) At the end of 2009, both parties moved to a rental apartment in Tokyo (hereinafter referred to as “C Apartment”). Both parties moved to a rental apartment in Tokyo (hereinafter referred to as “C apartment”) at the end of 2009. Immediately after the relocation, the child was placed in a day-care center, and from April 2010, the child was enrolled in “D Day-care Center”. The division of custody of the child was almost the same as in c. above.
    • (e) On March 12 of the same year, the petitioner filed a mediation requesting divorce, etc. (Tokyo Family Court, 2010 (Ie.) No. XX, hereinafter referred to as the “divorce mediation case”) against the other party. (2) Commencement of alternate custody
  • (2) Circumstances at the Time of Commencement of Alternate Custody (Tokyo Family Court (I) No. XX of 2010 (hereinafter referred to as the “Previous Case”))
    • (a) On or around June 20, 2010, the other party moved to a rental apartment in Tokyo (hereinafter referred to as “E Apartments”) with the subject of the case. (a) On or about June 20, 2010, the other party moved into a rental apartment in Tokyo (hereinafter referred to as “Apartment E”) with the subject of the case and started living separately from the petitioner.
    • (b) On July 8 of the same year, on the date of the previous divorce mediation case, both parties agreed that, in principle, they would take turns taking care of the subject of the case every week, and they started taking turns taking care of the subject of the case on the 11th of the same month. The handover of the child was mainly done by taking the child to and from D day-care center. It has been confirmed that there was no difference in the attitude of the child between the petitioner and the other party during the pick-up and drop-off, but the other party was aware that the child did not like the petitioner coming to pick her up.
    • (c) On July 13 of the same year, immediately after the start of the alternate custody, the other party visited Apartment C to meet the case herself who was under the custody of the petitioner, and when the petitioner had the other party meet the case herself, the other party started crying and the case herself started crying in response.
    • (d) On August 6 of the same year, the other party filed a petition with the petitioner for a case to designate the other party as the custodian of the subject of the case and for a temporary restraining order (Tokyo Family Court, 2010 (Family Law) No. XX) to the same effect prior to the trial. On the 25th of the same month, both parties exchanged a written agreement to the effect that they would continue alternating custody of the child until a custodian was designated.
    • (e) During the period of alternate custody, both parties always participated in events such as the field day at D preschool together, and they also participated in parenting classes held by the local community, where they and the complainant learned parent-child interaction exercises together.
    • (f) The petitioner’s mother (hereinafter referred to as the “paternal grandmother”) (f) The petitioner’s mother (hereinafter referred to as the “paternal grandmother”) stayed with the petitioner about once a month for about 5 to 10 days each time during the period of alternating custody, and supported the petitioner’s custody of the case herself.
  • (3) Results of the investigation of the custody situation at the Tokyo Family Court  From October to December 2000, a family court investigator (hereinafter referred to as the “Investigator”) conducted a custody status investigation (hereinafter referred to as the “Investigation”) on the aforementioned case of designation of a custodian. (hereinafter referred to as the “Family Court Investigator”) conducted a custody status investigation (hereinafter referred to as the “Previous Custody Status Investigation”) from October to December 2000. The main points of the results were as follows.
    • (a) It was confirmed that the custodial environment of both parties was almost sufficient, to the extent that it was difficult to distinguish between them. As a result of the home visit, it was observed that the relationship between both parties and the child in question was good. In addition, according to the results of the investigation at D day-care center, there was no difference in the attitude of the child during pick-up and drop-off between the complainant and the other party, and it was confirmed that the child seemed to enjoy reporting to the day-care staff about how she spent her time with each parent.
       However, the investigator expressed the opinion that it was appropriate to designate the other party as the custodian of the child because the other party had been involved in the care and upbringing of the child for a longer period of time than the petitioner due to the childcare leave taken.  During the home visit to Apartment E, when the case herself greeted the investigator at the door, she suddenly stated, “I want to stay with my mom (the other party),” but the investigator thought that the case herself did not really understand the meaning of this statement.
    • The investigator thought that the petitioner did not really understand the meaning of this statement. b. The other party stated that he did not intend to prevent visitation at all and would agree to visitation two or three times a month, but the investigator was of the opinion that it would be desirable to agree on visitation as well as custody since the petitioner’s fear of not being able to see the case herself was considered to be realistic.
  • (4) Background of the tentative agreement to designate the other party as the custodian
    • (4) Tentative agreement to designate the other party as the custodian a. The petitioner informed the other party in a written communication prepared by the representative of the petitioner dated January 11, 2011 that, as a condition of divorce, she wished to have custody and custody divided and to have custody vested in the petitioner, but that she was willing to make concessions to the other party regarding custody if sufficient visitation could be ensured.
    • (b) On the date of the divorce mediation in the previous case on January 20, 2011, both parties reached a tentative agreement (hereinafter referred to as the “Tentative Agreement in the Previous Case”), the main contents of which were: (1) that the custodian of the child in question would be determined to be the other party for the time being; (2) that visitation would be held three times a month; and (3) that alternate custody would be cancelled as of the 26th of the same month. (hereinafter referred to as “the previous tentative agreement”). (hereinafter referred to as the “Previous Provisional Agreement”).
    • (c) Based on the provisional agreement, the opposing party withdrew the petition for a temporary restraining order before trial. In addition, the case requesting the designation of the custodian of the child was submitted to mediation, which was to proceed simultaneously with the divorce mediation case.
  • (5) Circumstances leading to the conclusion of the mediation in the preceding case
    • a. The Great East Japan Earthquake occurred on March 11, 2011, and the other party, with the consent of the petitioner, evacuated to Fukuoka, where her parents live, on March 16, but returned to Tokyo on March 22, taking the case herself with her.
    • (b) The other party felt uneasy about her life in Tokyo due to the effects of the Great East Japan Earthquake, consulted with her supervisor about resignation, and received his informal consent, so she decided to resign from A Corporation and move to Fukuoka, and in mid-April of the same year, she moved there with the case herself. Since the other party decided to resign and relocate without consulting the petitioner, it became virtually impossible to conduct visitation exchanges three times a month, which was included in the tentative agreement, and the petitioner developed a strong sense of distrust toward the other party.
    • (c) On the date of the divorce mediation on July 12 of the same year, both parties agreed on the contents of the attached mediation clause, and the mediation was concluded, but in the process of coordination between the representatives of both parties, the following exchanges took place.
      • (a) In order to ensure the effective cooperation of the other party in implementing visitation, the petitioner requested that the other party be exempted from paying child support for the months when visitation could not be realized, and the other party agreed to this request (see Paragraph 4 of the Mediation Article).
      • (b) The petitioner thought that it was important for the other party to affirm visitation to the child by handing over the child outside the home, and requested that the child be handed over at Station F. The other party agreed to this request (see Paragraph 7 (4) of the Conciliation Clause).
  • (6) Status of visitation in Tokyo after completion of alternate custody  Based on the aforementioned tentative agreement, visitation exchanges were conducted on January 30, February 6, 11-12 of the same month, 26 of the same month, March 5, 25-26 of the same month, April 8, and 9-10 of the same month in 2011, and the following exchanges took place
    • (a) On January 30 of the same year, when the petitioner visited E’s apartment to pick up the subject of the case, the subject of the case refused to go with the petitioner, saying, “Don’t come. The other party requested the petitioner to explain to the case herself that she could go back to E-mansion after the meeting was over.
    • (b) On February 11 of the same year, when the petitioner visited the apartment E to pick up the case herself, the case herself did not go with the petitioner, but looked at the other party in the back of the room. As the other party did not come out, the petitioner left the apartment and went to pick up the case herself again after receiving a call from the other party.
    • c. On the 12th of the same month, the complainant was carrying the case herself to the E Mansion, but when the E Mansion approached, the case herself suddenly tried to get off, saying that the other party would be angry if the complainant carried her.
    • (d) On the 26th of the same month, when both parties and the case herself went to a pipe organ concert, the case herself took an attitude of hiding from the other party and avoiding the petitioner.
    • (e) On April 8 of the same year, the petitioner went to apartment E to pick up the victim, but the victim resisted, crying and screaming. The other party also refused to come out from the back of the room, so the petitioner left the apartment once and visited the apartment again with her paternal grandparents. The child stopped crying when he was invited to come and get his toys, and the handover went well.
    • (f) On the ninth day of the same month, the petitioner and her paternal grandparents went to apartment E to pick up the child. The child again resisted, crying and screaming, but stopped crying when asked to go toy shopping, and the handover went well.
  • (7) Status of visitation in Fukuoka
    • (7) Status of visitation in Fukuoka a. After the other party and the child moved to Fukuoka, visitation with overnight stay was held at F station from May 14 to 16, 2011 and from June 3 to 5, 2011. At the time of handover, the child resisted by biting the petitioner, but when the petitioner invited him to go toy shopping, he eventually went along with the petitioner. During the visitation in May, the case herself went to the petitioner’s parents' house in G city and had a good time with her paternal grandparents, but when she came back to the other party’s house, she expressed her anger toward the petitioner.
    • However, when she returned to the opponent’s house, she expressed her anger toward the petitioner. b. The visitation scheduled for July and August of the same year failed to be handed over due to the refusal of the case herself. The visitation scheduled for September of the same year was to use the visitation support organization (FPIC), and although three FPIC staff members tried to separate the case himself from the other party, the separation failed due to the resistance of the case himself, and the visitation did not take place. Therefore, the petitioner decided to forgo the visitation in October and November of the same year.
    • c. At the time of the handover on July 8 of the same year, the other party thought that it would be troublesome if the divorce with the petitioner was not concluded on the date of the divorce mediation scheduled for July 12 of the same year, and asked the case herself to agree to the visitation in order to divorce the petitioner, but the case herself cried and the handover did not go well in the end. In the end, the handover did not go well. In the past, the other party had asked her to meet with the petitioner in the same way, and she had agreed to meet with the petitioner at that time.
    • (d) The person in question used to call the complainant “Papa,” but started calling him “Mr. X” some time after the mediation in the previous case.
  • (8) Background, etc. of the performance recommendation (Tokyo Family Court, 2011 (Family Law) No. XX (hereinafter referred to as the “First Performance Recommendation”))
    • (a) On December 15, 2011, the petitioner filed the first recommendation for performance on the grounds that the other party had violated Paragraph 7 of the mediation clause in the previous case.
    • (b) With regard to the visitation scheduled for the same month and January 2012, the handover failed due to the refusal of the case himself. On December 20, 2011, the petitioner sent the other party a booklet on visitation issued by the Osaka Family Court, requesting the other party to smile when handing over the case himself, but the other party rejected the request, saying that he could not smile in front of the petitioner.
    • c. As a result of communication between the parties through the investigator, both parties agreed to keep the interaction only indirect until May 2012 and to watch the case itself for a while. As a result, the procedure for the first recommendation for performance was terminated on February 1 of the same year.
  • (9) Circumstances after the paternal grandfather’s declaration of life expectancy, etc.
    • (a) On July 31, 2012, the paternal grandfather collapsed, and although he underwent an operation, he was informed that the colon cancer had metastasized and could not be cured, and that he had only one to three months to live. Since the paternal grandfather was fond of the patient, the petitioner sent an e-mail to the other party on August 3 of the same year, requesting the other party to bring the patient to G City to see the paternal grandfather.
    • (b) On August 5, the other party replied to the petitioner with an e-mail to the following effect
      • (a) For the other party, the cause of the high conflict with the petitioner was that, in the division of property in the previous divorce settlement case, [1] the down payment of 200,000 yen for the detached house, [2] the cash left in the family account box, [3] the petitioner’s living expenses paid from the other party’s credit card, and [4] the unpaid marriage expenses during the separation were not taken into consideration.
      • (b) As long as these approximately 300,000 yen are not returned, the other party’s feelings toward the petitioner will not change.
    • (c) The petitioner remitted 30,000 yen that she had prepared as transportation expenses to the other party as part of the 300,000 yen, and contacted her to that effect by e-mail on the 6th of the same month.
    • (d) On the 9th of the same month, the other party sent an e-mail to the petitioner stating that it wanted the petitioner to prepare 300,000 yen even by borrowing money apart from the transportation expenses, and that it did not intend to let the case itself meet the paternal grandfather until the transfer was completed.
    • (e) On the 22nd of the same month, the complainant sent a letter to the other party requesting that the demand for payment of 300,000 yen was unreasonable and unacceptable and that the meeting between the paternal grandfather and the subject of the case should be realized as soon as possible.
    • (f) On the 24th of the same month, the other party sent an e-mail to the petitioner to the following effect
      • (a) The subject of the case says he does not want to meet with the petitioner or his paternal grandparents.
      • (b) The petitioner has not responded to the payment of 300,000 yen and it is understood that the other party has no intention to improve the relationship with the petitioner, so the other party has no material to persuade the petitioner.
  • (10) Circumstances, etc. after the filing of the petition in this case (Our Office (Home Rule) No. 1025 of 2002 and No. 1026 of 2002 (hereinafter referred to as “this preservation case”)) (2) The circumstances, etc. after the filing of the petition (this Office’s 2002 (家ロ) No. 125 and No. 126 (hereinafter referred to as the “Preservation Cases”)) (hereinafter referred to as the “Second Performance Recommendation”), Tokyo Family Court (Ie.
    • (a) On September 7, 2012, the petitioner filed the first and second cases together with the preservation case.
    • (b) On the 12th of the same month, the other party sent an e-mail to the petitioner stating, among other things, that it was trying to persuade the petitioner to take the case itself to the hospital of her paternal grandfather.
    • (c) On the 15th of the same month, the other party visited the hospital of the paternal grandfather with the subject of the case and had the subject of the case meet with the paternal grandfather. At the request of the other party, the complainant did not attend the meeting, but the complainant showed a negative reaction to the paternal grandparents.
    • (d) On October 9 of the same year, the petitioner filed a second recommendation for performance on the grounds that the other party had violated Paragraphs 7, 8 and 18 of the conciliation clause of the previous case. On November 6 of the same year, the procedure of the above-mentioned performance recommendation was terminated due to the difficulty of adjustment in the performance recommendation procedure.
    • (e) On November 30 of the same year, the opponent filed the third case, and on November 6 of the same year, the Court referred the third case to mediation (No. XX of 2012 (Family Law) of this Court).
    • (f) As a result of hearing both parties regarding the preservation case, the Court tentatively determined that there was no need for preservation by the third date, and on November 12, 2012, the Court referred both the first and second cases to conciliation (this Court’s (I.D.C.) No. XX and No. XX of 2012, together with the conciliation case in (e) above, the “Conciliation Cases”). The two cases were both referred to mediation (No. XX and XX of 2012 (Family Law) of this Office, together with the mediation case in (e) above, the “Mediation Cases”). (k) The complainant submitted the case to a mediation committee.
    • (k) On December 4 of the same year, the complainant filed the third recommendation for performance on the grounds that the other party had violated Paragraphs 7, 18 and 19 of the conciliation clause of the previous case. On the 21st of the same month, the procedure of the above recommendation for performance was terminated due to the difficulty of adjustment in the procedure of the recommendation for performance.
  • (11) First trial visitation  On March 25, 2013, a trial visitation between the petitioner and the subject of the case was held in the playroom of this office, and the results were as follows.
    • (a) At the beginning of the trial visitation, the subject of the case severely rejected the petitioner and tried to run away from the playroom. However, as a result of the petitioner’s efforts to communicate with the child while taking care not to force the child, the child gradually approached the petitioner and eventually the two were able to play together. Although he did not call the petitioner “Daddy” until the end, he asked the petitioner to pick him up and smiled during the conversation. In the latter 30 minutes of the one-hour trial visitation, the intervention of the investigator was not necessary, and smooth visitation was achieved.
    • (b) However, as soon as the other party came to pick her up, she changed her attitude, blamed the investigator for not letting her out of the playroom, looked at the other party as if she was gazing at his face, and showed strong aggression, such as clawing and pinching the investigator’s hands. When the complainant left the playroom, she said to the other party, “Thank you for today,” but the other party did not respond to her, but instead held the case in her arms and did not turn her head toward the complainant, seemingly unable to suppress her negative feelings toward the complainant.
    • (c) After the trial visitation, the other party said to the child, “I saw you, Mommy,” in front of the door of the playroom.
    • (d) On February 15 of the same year, prior to the first trial visitation, the case herself underwent a preliminary interview with the other party, and when they were discussing her life history, she suddenly said, “Do I have to see Mr. X? He suddenly asked, “Do I have to meet with Mr. X?”, and after that, he seemed to be watching the other party’s face by checking his mother’s expression.
    • (e) After returning home after the first trial visitation, the case herself was in a rough mood, saying to the other party, “Z-kun should not have been made by God.
  • (12) Second trial visitation  On May 20, 2013, another trial visitation between the petitioner and the case herself was held in the playroom of this office. The case himself consistently rejected the petitioner and strongly opposed the investigator’s advice, and smooth exchange did not take place until the end.
    • (a) The person in question told the investigator that she had heard from the other party that she could be let out of the playroom if she said she did not want to. In response to this, the investigator repeatedly corrected the statement, saying that it was not if the complainant said she did not want to, but if the complainant did something she did not want to, but the complainant refused to accept the investigator’s explanation, saying that she had not received such an explanation from the other party.
    • (b) When the complainant asked her why she wanted to leave the playroom, she suddenly said, “There is a magic mirror over there.
    • c. When asked by the investigator what she did not like about the petitioner on the day of the trial visitation, the case herself refused the petitioner, stating that the petitioner tried to take her to G-city by force. Therefore, the complainant apologized to the case person, explained that the investigator would play with him in Fukuoka for the time being, and asked him if there was anything else he did not like, but the case person kept silent.
    • When the investigator asked him if there was anything else he did not like, he remained silent. d. At the end of the trial visitation, the case himself suddenly mentioned that when he was three years old in Tokyo, the petitioner touched his male genitals in the bathtub while he was taking a bath with the petitioner, and that this happened when he was taken to the petitioner’s place, and that he was surprised when he told the other party about it. There were no such comments during the first trial visitation.
    • (e) After returning home after the second trial visitation, the case herself did not become rough as she did after the first trial visitation.
  • (13) Circumstances in which this mediation case was unsuccessful, etc.
    • (a) On the date of this mediation case on October 7, 2003, the complainant requested the other party to resume visitation in stages according to the following procedure.
      • (a) The other party should be able to hand over the case itself to the other party’s agent smoothly.
      • (b) The other party’s representative should encourage the person in question to restore the relationship with the petitioner.
      • (b) The other party’s representative will encourage the petitioner to restore the relationship.
      • (d) The mediator is transferred from the other party’s representative to a third party, and the visitation time is increased step by step, and finally the visitation exchange is conducted as in the previous case mediation.
    • (b) In response to the request mentioned in (a) above, the other party planned to have the person in the case attend a party held at the home of the other party’s agent, but was unable to have the person in the case attend the party. Therefore, on December 9, 2003, both of the mediation cases were unsuccessful and the case was transferred to the trial procedure (this case). (13) On December 9, 2003, both of the mediation cases were unsuccessful, and the case was transferred to the trial procedure (the present case). On December 27, the petitioner withdrew both of the petitions for the preservation case.
  • (14) Status of the other party’s custody  (14) The other party is living with herself and the other party’s grandmother, and there is no particular problem in the custody of the other party, except for the fact that visitation cannot be conducted. There is no particular problem in the custody of the child, except for the fact that visitation cannot be conducted.
  • (15) Petitioner’s custodial situation
    • (a) In the event that the petitioner takes in the child, the petitioner plans to take care of the child at the petitioner’s parents' home in G city, with the support of the paternal grandmother. Initially, the petitioner plans to take about a month’s vacation to spend time with the case herself so that she can adjust to the new environment.
    • In fact, when her paternal grandfather collapsed in the summer of 2012, she took a leave of absence for the whole of August of the same year, and was transferred from September of the same year, and worked at the I branch until she returned to the Tokyo head office in late October of the same year. The complainant worked at the I branch until late October of the same year when she returned to the Tokyo Head Office. The complainant consulted with her immediate supervisor and told him that she would like to be transferred to the I branch if she were to take the case herself, and she expects to remain at the I branch.
    • c. As a result of the investigation, the family court investigator found no particular problems in the petitioner’s custodial arrangements, and expressed the opinion that if the case itself is successfully handed over, the case itself can be expected to be cared for lovingly by the petitioner and the paternal grandmother.

(2) Suspicion of sexual abuse

  • (1) During the second trial visitation, the subject of the case himself stated that when he was three years old in Tokyo, the petitioner touched his male genitals in the bathtub while he was taking a bath with the petitioner, that it happened when he was taken to the petitioner’s place, and that he was surprised when he told the other party about it. (hereinafter referred to as “the statement”). (hereinafter referred to as “the statement”). In this connection, the other party submitted an e-mail in support of the claim that he heard from the case himself that he touched the male genitalia of the petitioner after the visitation in April and June 2011.  The other party, after citing the documents, pointed out that as long as the petitioner did not respond to the e-mails promptly and appropriately, the suspicion of sexual abuse by the petitioner could not be denied, and stated that the custody of the petitioner should not be changed to the petitioner and that the petitioner should not be handed over to the petitioner. (2) On this point, the other party argues that the custody of the child should not be changed to the petitioner, that the child should not be handed over to the petitioner, that visitation should not be allowed for the time being, and that even if the time being is over, the frequency of visitation should not be once a month, and that visitation involving overnight stays should be absolutely avoided.
  • (2) In this regard, the other party has stated that he has not confirmed whether the petitioner touched his male genitals or not. Therefore, at the time of the above e-mail, there was no evidence to suggest that the petitioner had engaged in acts that could be evaluated as sexual abuse against the subject of the case. As the statements made by the complainant at the time of the above e-mail do not specifically raise suspicions of sexual abuse, the literature cited by the other party does not apply.  In addition, at the time of the above-mentioned e-mail, she was only three years old, and at the time of the second trial visit, she was only five years old, and her statements cannot be trusted immediately. In addition, the other party also said that the complainant touched the male genitals of the suspect. In addition to the above, the other party also stated that April 2011, after the end of the alternate custody, was the first time he heard from the case herself that she or the petitioner had touched the male genitals of the other party and felt uncomfortable about it. In addition, there was no mention of this comment during the first trial visitation, and this comment was made suddenly at the end of the second trial visitation, so it is not possible to admit that the petitioner committed an act that can be evaluated as sexual abuse based on this comment.  Rather, it is natural to understand that this comment was made by the petitioner, who was at a loss for reasons to refuse visitation with the petitioner during the second trial visitation, and remembered the other party’s reluctant reaction when he talked about touching the petitioner’s male genitals, and tried to bring up the subject as a reason to refuse visitation.  In addition to the above, the petitioner claims that she has touched the male genitals of the petitioner when she washed the petitioner’s body and that the petitioner has jokingly touched the petitioner’s male genitals, but that she has not committed any act that can be evaluated as sexual abuse.

3. The cause of the petitioner’s strong rejection of the case

  • (1) According to the results of the investigation of the custody situation in the previous case, it is clear that the relationship between the petitioner and the subject of the case has been good, but since the end of January 2011, when the alternation of custody ended, the handover of the subject of the case at the start of visitation exchange has gradually become difficult due to the refusal of the subject of the case, and the handover has not been realized at all since July of the same year. Since July of the same year, the handover has not been realized at all. In addition, although the first trial visitation in March 2013 was smooth to some extent, the second trial visitation in May of the same year was not smooth until the very end, and even after that, due to the strong refusal of the case himself, it has become practically difficult to conduct visitation between the petitioner and the case himself. The situation has become difficult.  In considering petitions for change of custody and change of conditions for visitation, it is important to understand the causes of these refusals, which will be discussed below.
  • (2) Causes of the refusal of the case itself after the termination of alternate custody
    • (2) Causes of the refusal of the subject of the case after the end of the alternation of custody a. In this regard, [1] on July 13, 2010, immediately after the start of the alternation of custody, the other party visited C Mansion to meet the subject of the case who was under the custody of the petitioner, and when the petitioner had the other party meet the subject of the case, the other party started to cry; [2] at the handover on January 30, 2011, the other party told the petitioner (2) On January 30, 2011, the other party requested the petitioner to explain to the subject of the case that the subject of the case could return to Apartment E after the meeting; (3) On February 11 and April 8 of the same year, the other party refused to come out from the back of the room even when the petitioner went to Apartment E to pick up the subject of the case; (4) On and before July 8 of the same year, the other party asked the subject of the case to come out from the back of the room. (4) On and before July 8 of the same year, the other party asked the subject of the case to meet with him in order to divorce the petitioner; (5) The other party refused to send the subject of the case off with a smile when handing over the visitation, and even on the date of this case, the other party stated that it would make the subject of the case suspicious if he acted cheerfully and asked to meet with the petitioner. 6] In the communication with the petitioner when her paternal grandfather collapsed in the summer of 2012, the other party sent an e-mail to the effect that the cause of her high conflict with the petitioner was her dissatisfaction with the handling of the property division in the mediation of the previous case and that she could not ask the case herself to meet with the petitioner for that reason. It is reasonable to assume that the other party could not hide his negative feelings toward the petitioner or his dislike for visitation even in front of the petitioner, and continued to say and do things that would make the petitioner feel guilty about enjoying visitation with the other party.
    • (b) In addition, it was confirmed that: [1] during the home visit to apartment E in the previous case’s custody investigation, the case himself greeted the investigator at the door and suddenly said, “I want to stay with my mom (the other party)"; and [2] there was no difference in the attitude of the case himself between the petitioner and the other party when picking up and dropping off the child at daycare D. [2] It was confirmed that there was no difference in the attitude of the complainant and the other party when picking up and dropping off the child at day-care center D. However, the other party was aware that the child did not like the complainant coming to pick her up; [3] On February 12, 2011, the complainant was carrying the child to apartment E, but when the apartment E approached, the child suddenly tried to get off, saying that the other party would get angry if the complainant carried her. [4] At the pipe organ concert on May 26, she hid from the other party and avoided the petitioner; [5] Even though she enjoyed the visitation on May 14-16 of the same year, when she returned to the other party’s house, she expressed her anger toward the petitioner. It is reasonable to assume that, as the life under the sole custody of the other party became longer, the tendency to reject the petitioner became stronger. (2) It is reasonable to assume that the petitioner was trying to hide the relationship with the other party.
  • (3) Reasons for the failure of the second trial visitation  (3) The cause of the failure of the second trial visitation: In the first trial visitation, the child tried to escape from the playroom at the beginning, but gradually became able to play with the petitioner. [2] After the first trial visit, as soon as the other party came to pick her up, she changed her attitude and blamed the investigator for not letting her out of the playroom. [3] When the complainant left the playroom, she said to the other party, “Thank you for today,” but the other party did not respond to her, but instead held the case in her arms and did not turn her head toward the complainant, seemingly unable to control her feelings of rejection toward the complainant. [4] According to the other party, although the child was aware that there was a magic mirror in the playroom, the other party stated to the child after the first trial visit, “I saw you looking at my mom. At the second trial visitation, when the petitioner asked her why she wanted to leave the playroom, she said, “There is a magic mirror over there,” which seemed to indicate that she was aware that the other party was watching the visitation. (5) On February 15 of the same year, she was interviewed together with the other party, and at that time, she did not talk much about the petitioner, but rather looked at the other party’s face; (6) After returning home after the first trial visitation, she was upset with the other party, saying “Z-kun should not have been made by God,” but after returning home after the second trial visitation, she was not upset. However, when she returned home after the second round of trial visitation, she did not become upset, and [7] there was no opportunity for contact between the petitioner and the case herself between the first and second round of trial visitation. It is reasonable to assume that the reason for the failure of the second trial visitation was because the other party’s words and actions, including [3] and [4] above, made her feel strongly guilty for having had a smooth interaction with the petitioner in the first trial visitation, and further strengthened her sense of rejection toward the petitioner in order to show her loyalty to the other party.
  • (4) Conclusion  As described above, it is recognized that the main reason why the subject of the case strongly rejected the petitioner was the other party’s words and actions.
  • (5) Argument of the other party
    • (a) In response to this, the other party claims that the reason for the refusal to meet with the petitioner was that the other party left without looking at the case in handing over the visitation, which increased the separation anxiety of the case, and that the events such as the petitioner not bringing the toys promised to the case increased the distrust of the case against the petitioner, and that the other party has been trying to encourage the case to meet with the petitioner.
    • (b) However, as mentioned above, even if the other party brought the case herself to the place of delivery for visitation or talked to the case herself to agree to visitation, she continued to say and do things inconsistent with that.
       In addition, the relationship between the petitioner and the child in question had been good since the alternation of custody was implemented until January 2011, and it has been confirmed that there was no difference in the attitude of the child in question between the petitioner and the other party when the child was taken to and from D Daycare. Therefore, it is difficult to think that the visit with the petitioner after the termination of the alternate custody increased the separation anxiety. It is also understood that the reason why the other party had to leave without looking at the case in handing over the visitation was that the case itself had a stronger sense of rejection toward the petitioner due to the other party’s words and actions.
       In light of the good relationship between the petitioner and the subject of the case, it is difficult to imagine that the trivial incident pointed out by the other party, such as the petitioner’s failure to bring the promised toy to the subject of the case, is a reason to refuse visitation.
       With regard to the factors that cause children to reject their parents, please refer to page 42 of “Shinji Ozawa, “Family Court Investigator’s Survey of Children’s Welfare: From the Perspective of Judicial Psychology,” Family Court Monthly Report, Vol. 61, No. 11, p. 1” and “Shinji Ozawa, “American Research and Practice for the Resolution of Disputes over Children: A Case Study of the United States. Research and Practice for the Resolution of Conflicts over Children in the United States: Focusing on High-Conflict Cases,” Case Study No. 272, p. 149 (hereinafter referred to as the “Ozawa Case Study Paper”). However, in this case, as far as the responses of both parties after the first trial visitation, it is clear that the main cause of the inability to have smooth visitation is the other party’s words and actions. I do not think that there is any other major factor that led to the rejection of the petitioner by the case itself.
    • Therefore, the above-mentioned argument of the other party cannot be adopted, and even looking at the record of one case, there is no evidence that should affect the above-mentioned finding that the other party’s words and actions are the main cause that led the person in question to strongly reject the petitioner.

(iv) Change of custodian

  • (1) From the standpoint of the welfare of the case itself, this Court believes that the custodial authority should be changed from the other party to the petitioner and the other party should be designated as the custodian.
  • (2) Necessity of Changing the Person with Parental Authority
    • (a) Significance of ensuring visitation  (2) The necessity to change the custodial parent (a) Significance of ensuring visitation (i) It is important for a child’s healthy development to form an attachment with both parents, and visitation with the non-custodial parent is an important opportunity for a child who has been separated from the non-custodial parent to form a relationship with the non-custodial parent. (Iku Hosoya, et al., “Actual Circumstances of Mediation Cases in Which Visitation Exchange is a Point of Contention and the Nature of the Proceedings: In Light of the Amendment to Article 766 of the Civil Code,” Family Court (See Monthly Report, Vol. 64, No. 7, p. 75).
       In this case, it is clear that there are no such special circumstances, and in light of the fact that the relationship between the petitioner and the petitioner has been good, it is in the welfare of the child to encourage the other party to change its attitude, remove the petitioner’s rejection of the petitioner, and smoothly resume visitation. According to page 156 of the Ozawa case research paper, [1] children who are involved in the process of rejection lose their relationship with the non-custodial parent, and as a result, they adopt only the values of the custodial parent and develop a biased view, and [2] as a result of the custodial parent becoming a role model for the child, the child may start to manipulate others in order to satisfy their own needs. (2) As a result of the caregiving parent becoming a role model for the child, the child learns to manipulate others in order to satisfy his or her own needs, making it difficult for the child to develop close relationships with others. 4] As the child grows up and begins to understand things, he or she may develop feelings of anger toward the custodial parent or guilt and remorse for rejecting the non-custodial parent, resulting in depression, regression, and identity problems. This can lead to depression, regression, identity confusion, and the creation of an idealized image of the phantom parent. (a) When the other party has custody.
    • (b) The premise on which the other party was designated as the custodian is undermined  In light of the contents of the provisional agreement and the mediation in the previous case and the circumstances leading up to it, it is recognized that the main reason why the petitioner agreed to designate the other party as the custodian or the person with parental authority was because the other party promised to ensure visitation. In addition, in the previous custody investigation, the investigator expressed the opinion that the petitioner’s anxiety about not being able to see the subject of the case was considered to be realistic, so it can be said that the other party was strongly expected to take the opinion seriously and give necessary consideration for the smooth implementation of visitation.
       However, as recognized above, the other party’s words and actions have resulted in a situation where the case itself does not agree to visitation, and the premise of designating the other party as the custodian has been undermined.
    • (c) There is no way to improve the current situation other than changing the person with parental authority.  It is acknowledged that the petitioner has taken all possible measures to resume visitation, including legal measures such as mediation and performance recommendations, as well as the use of a visitation support organization (FPIC). However, as stated above, the second trial visitation failed and there is no prospect of resuming visitation after that. In addition, the other party has stated that the only way to realize visitation is to wait for the right time, and does not have any concrete measures to motivate the case itself to have visitation.
       Therefore, it can be said that there is no way for the petitioner to improve the current situation where visitation is not realized other than to seek a change of custody.
    • (d) The positive significance of the separation of parental authority and custody authority is recognized.
      • (a) As there are many cases in which it is in the welfare of the child to entrust parental authority, including custody, to the parent who should be responsible for the child’s personal care, it is a principle that parental authority and custody should not be subdivided, but this is not limited to cases in which there are special circumstances in which it can be said that subdividing parental authority and custody is in the welfare of the child.  For example, [1] when the child cannot immediately live with the custodial parent and needs to live with the other parent for a while due to the circumstances of the parent who has taken custody or the circumstances of the child, or [2] when the child is generally taken care of by the custodian, but there is room for the custodial parent to be involved in serious issues concerning the care of the child and to have the child’s custody achieved through joint custody. (2) In cases where it is necessary to have the custodian take care of the child in general, while leaving room for the custodian to be involved in serious issues regarding the custody of the child, so that the fruits of joint custody can be achieved, there are cases where it is appropriate to have the parental rights and the custody rights subdivided (see Hideo Saito and Nobuo Kikuchi, “Commentary on the Family Affairs Trial Law [Revised]”, p. 349, Setsu Shimizu, “Separation and Subdivision of Parental Rights and Custody Rights”, Hanrei Times, No. 110, p. 144).
      • (b) In this regard, as mentioned above, it is in the best interest of the child to facilitate a smooth resumption of visitation by encouraging a change in the other party’s attitude, and for this purpose, I believe it is beneficial to assign custody to the petitioner and custody to the other party, and to establish a framework in which both parties should cooperate for the upbringing of the child.
         During the period of alternating custody, when both parties had parental authority, it is recognized that there was a minimum level of cooperation, such as both parties attending events at the day-care center together, and it is desirable to revive at least the same level of cooperation as at the time of alternating custody by dividing the parental authority and the custody authority.
         (c) In addition, it is desirable to revive the cooperative relationship between the petitioner and the other party, at least to the same extent as at the time of the alternation of custody.
      • In addition, the petitioner has been involved in child rearing as much as possible even before the start of the alternating custody, and the custodial situation of both parties during the period of alternating custody of about six months is said to have provided an almost sufficient custodial environment, so that it is difficult to disagree. The investigator stated his opinion that there is no particular problem with the current custodial situation of the petitioner and that if the case itself is successfully handed over, the case itself can be expected to be cared for with love and affection by the petitioner and the paternal grandmother. According to the statement submitted by the other party in the case of the designation of the custodian in the previous case, it is admitted that the petitioner has taken at least 23 and a half days of leave for the custody of the subject of the case over a period of two years while she was living with the other party, and it can be seen that she was involved in the custody of the subject of the case in no small degree.
         Therefore, it is recognized that the petitioner has sufficient performance and ability to play a part in the care and upbringing of the child as the person with parental rights.
      • (d) On the other hand, although the petitioner has specifically considered what would happen if the child were to be taken in, based on the reaction of the child during the second trial visitation, it is unavoidable to think that there is a high possibility that the child will not be handed over. In addition, we cannot underestimate the risk of further deterioration of the image of the petitioner and the mental burden on the child in the case of failure in the enforcement of the surrender of the child.
         In addition, from January 2011, when the other party was temporarily designated as the custodian, to the present, the case herself has been under the sole custody of the other party, and there is no particular problem in her custody except for the fact that the other party is not able to conduct visitation exchanges. Considering that the case herself has been living in Fukuoka Prefecture since April 2011 and has entered H Elementary School since April 2016, it cannot be denied that it would be less burdensome for the case herself if the other party continues to take care of her.
         Thus, there are circumstances in which the petitioner should hesitate to transfer the custody of the child from the other party to the petitioner.
      • Therefore, in this case, it is necessary to encourage the other party to change its attitude and to release the child from the state of conflict by separating the custody and the care of the child and setting up a framework in which both parties should cooperate in the care of the child, and the petitioner has a sufficient track record and ability to play a part in the care and upbringing of the child as the person with parental authority. In light of the fact that the petitioner has sufficient achievements and abilities to play a part in the custody and upbringing of the child as the person with parental rights, and that there are circumstances in which the petitioner should hesitate to transfer the custody of the child from the other party to the petitioner, there are special circumstances in which the separation of custody and upbringing is in the welfare of the child, and it can be evaluated that there is a positive significance to separate custody and upbringing.
  • (3) Conclusion
     As mentioned above, considering that the premise on which the other party was designated as the custodian is broken, that there is no other means to improve the current situation other than changing the custodian, and that there is a positive significance to subdivide custody and custody, it is recognized that the custodian should be changed from the other party to the petitioner from the viewpoint of the welfare of the child, on the premise that the custodian is designated as the other party.
     On the other hand, as mentioned above, given the fact that there are circumstances in which there should be hesitation in transferring the custody of the case itself from the other party to the petitioner, it is difficult to recognize the necessity of immediately attributing the custody, including the right of care, to the petitioner at this time.
  • (4) Argument of the Opponent
    • (4) Arguments of the Opponent a. On the other hand, the Opponent argues that it is not appropriate to assign custody and custody to the Petitioner because it is not expected that the current relationship between the Petitioner and the Opponent will properly resolve any conflicts of opinion between the two parties, and the Opponent states that it is mentally difficult to cooperate with the Petitioner to take care of the case itself.
    • (b) However, as mentioned above, it is recognized that there is a positive significance to subdivide parental rights and custodial rights, and it is difficult to imagine that the petitioner would make a decision against the interests of the person in question in an emergency situation such as sudden illness.
       In addition, in the communication with the petitioner when the paternal grandfather collapsed, the other party sent an e-mail stating that his dissatisfaction with the handling of the property division was the cause of his high conflict with the petitioner, and looking at the record of one case, there is no particular circumstance that could justify the other party’s lack of cooperation with the petitioner. The representative of the petitioner has stated that he is ready to act as an intermediary between the petitioner and the other party, and it cannot be said that there is any obstacle for the other party to contact the petitioner.
    • Therefore, the above-mentioned argument of the other party cannot be adopted, and the aforementioned judgment that it is reasonable to divide the parental authority and the custody authority is not affected.
  • (5) Based on the above, the custodian of the child should be changed from the opponent to the petitioner, and the custodian of the child should be designated as the opponent.

5. Extradition of the child

 As stated in 4 above, the custodian of the case itself should be designated as the other party, so there is no reason for the petitioner to surrender the child.

6. Change of conditions for visitation

  • (1) Paragraph 4 of the conciliation clause in the preceding case  (1) With regard to Paragraph 4 of the Conciliation Clause in the preceding case, it is understood that an order of indirect compulsion may be made against the custodial parent based on the above trial if the trial court orders that the custodial parent must allow the non-custodial parent to have visitation with the child, and there is no lack in specifying the benefits to be provided by the custodial parent, such as the date and time or frequency of visitation, the length of time for each visitation, the method of delivery of the child, etc. (Decision of the First Petty Bench of the Supreme Court on March 28, 1950, Civil Code, Vol. 67, No. 3, p. 864).
     It is also understood that if there is a particular need to ensure the implementation of visitation exchange, it is permissible to agree to pay a reasonable amount of money in the event that visitation exchange is not implemented as “other matters necessary for the custody of the child” under Article 766(1) of the Civil Code, and in light of the circumstances leading to the conclusion of the mediation in the previous case, it is recognized that Paragraph 4 of the mediation clause was also agreed for the purpose of ensuring the implementation of visitation exchange.
     In this case, since the main cause of the lack of visitation is the other party’s behavior toward the subject of the case, it is especially necessary to maintain the purpose of the agreement in Paragraph 4 of the mediation clause in order to ensure the implementation of visitation, and the amount of 20,000 yen per month can be said to be within a reasonable range.
     However, in light of the fact that it is prohibited to set off child support as a passive claim (Article 510 of the Civil Code and Article 152, Paragraph 1, Item 1 of the Civil Execution Law) and that the right to claim support cannot be waived in advance, it is not appropriate to stipulate in the conciliation clause that the obligation to pay child support will be waived if visitation is not carried out.
     Therefore, instead of Paragraph 4 of the Conciliation Clause of the mediation in the previous case, pursuant to Article 53 of the Domestic Relations Judgment Rules, 20,000 yen shall be paid to the other party for every month from the month in which this judgment becomes final and binding until the month in which the subject of the case reaches the age of 20 (excluding the month in which visitation that satisfies all of Paragraphs 1 through 3 of the attached Guidelines for Visitation Exchanges is conducted). (1) It is reasonable to order the petitioner to pay 20,000 yen for each month (except for the month in which visitation that meets all of the requirements of Paragraphs 1 through 3 of the attached Guidelines for Visitation and Interaction is conducted) from the day of the mediation until the month in which the child reaches the age of 20.
  • (2) Regarding Paragraph 7, Items 1 through 4, 6, 7, 9, 10 and 10 of the Conciliation Clause in the preceding case  (2) In light of the current situation where visitation has not been realized due to the behavior of the other party, it is not reasonable to change the frequency of visitation to once a month. However, in consideration of the burden on the case in question, when resuming visitation, the duration of visitation should be extended gradually, starting with short visits, so it is appropriate to set the duration at three hours per visit and cancel the provision for visitation involving overnight stays. In addition, it is reasonable to have the other party, who is capable of assessing whether or not visitation can be conducted, propose the specific schedule of visitation.
     In addition, as stated in (1) above, if the stipulated visitation is implemented, the other party will be exempted from paying 20,000 yen per month. Therefore, it is appropriate to modify Paragraph 7, Items 1-4, 6, 7, 9, and 10 of the Conciliation Clause of the mediation in the previous case, and to specifically stipulate the date and time or frequency of visitation, the length of time for each visitation, and the method of delivery of the child, as shown in the attached visitation guidelines.
     In addition, with regard to Paragraph 10 of the Conciliation Clause, which allows the petitioner to attend events at educational institutions, there is no reason why the Conciliation Clause itself should be changed, although it is natural that consideration should be given to the person in question with regard to the specific implementation of the provision.
  • (3) Paragraphs 11 to 13, 11 and 12 of Article 7 of the Mediation Clause  (3) It is inappropriate to change the provisions concerning the burden of expenses for visitation exchange at the present time when there is no prospect of resumption of visitation exchange, and therefore, it is appropriate to dismiss the application for revocation of Paragraphs 7(11) to (13), 11 and 12 of the Conciliation Clause.
  • (4) Incidental Changes to Paragraph 7 of the Conciliation Clause in the Previous Case  As a result of (1) and (2) above, only items (v), (viii), and (xi) to (xiv) remain in Paragraph 7, and the rest of the provisions are changed as stated in Paragraph 5 of the main text, it is appropriate to delete the pillar of Paragraph 7 and change the part of the conciliation clause of the mediation in the previous case that contains the description of Paragraph 7 as stated in Paragraph 6 of the main text.

7. Therefore, the judgment is hereby rendered as set forth in the main text.

 (Domestic Relations Judge Masahiro Ide)

Attachment: Guidelines for visitation exchange

(1) Date and time

 (1) Frequency Once a month  (2) Time Three hours from noon to 3:00 p.m.  (3) The specific schedule for visitation shall be determined by the opponent presenting the petitioner with three candidate dates from among Saturdays, Sundays, or national holidays by the seventh day of the month preceding the month in which visitation is to take place (or immediately, if the same day has already passed when this judgment becomes final and binding), and the petitioner notifying the opponent of the selected visitation date within one week from the date of receipt of said notification.

(ii) Place of delivery

 (1) The place of delivery shall be near the ticket gate of F Station.  (2) The other party may designate a place in the city or in Tokyo, other than the other party’s home, as the place of delivery in lieu of (1). (2) The other party may designate a place in the city or in Tokyo other than the other party’s home as an alternative place of delivery in place of (1). If the other party intends to designate a place of delivery other than (1), the other party shall notify the petitioner of the place of delivery when presenting a proposed date of visitation in accordance with (3) of the preceding paragraph.

(iii) Method of delivery of the case itself

 (1) The other party shall deliver the case in question to the petitioner at the place set forth in the preceding paragraph on the date and time set forth in paragraph (1) for the commencement of the visitation.  (2) The petitioner shall deliver the case in question to the other party at the place set forth in the preceding paragraph on the date and time set forth in paragraph (1) for the termination of the visitation.

4

(3) In addition to the above, matters necessary for the implementation of visitation shall be determined through sincere consultation between the parties concerned, giving top priority to the interests of the person concerned.

Above.

Appendix: Conciliation Clause

  • (i) The petitioner and the other party are today divorcing through mediation at the request of the other party.
  • (ii) The parties hereby appoint the mother as the custodian of the eldest son, Z (born on ○○, 2007, hereinafter referred to as the “eldest son”). (iii) The petitioner shall request the other party to take custody of Z.
  • (iii) The petitioner shall pay the other party 20,000 yen per month as child support for the eldest son from July 12, 2011 until March of the year following the year in which the eldest son reaches the age of 22, by transfer to an account in the name of the eldest son on the last day of each month.
  • (iv) In the event that the other party is unable to realize the visitation as stated in Paragraph (7) for any reason whatsoever, the other party shall be exempted from paying child support to the petitioner for the month in which the visitation as stated in Paragraph (7) is unable to be realized. (vii) The other party shall be exempted from paying child support for the month in which the visitation as set forth in paragraph (7) could not be realized; provided, however, that this shall not apply in cases where the failure to realize the visitation as set forth in the same paragraph is due to circumstances attributable to the petitioner.
  • (vii) The other party shall allow the petitioner to have visitation with the eldest son as follows, and shall actively cooperate in the implementation of such visitation.
    • (1) The frequency of visitation shall be once a month, with visitation involving overnight stays of up to two nights.
    • (2) In August of each year, in place of the visitation mentioned in the previous item, visitation with accommodation for up to one week shall be held once.
    • (3) For any one of the visitations set forth in item (i) of this paragraph during the long vacation periods such as winter vacation, spring vacation, and Golden Week (during the months of December, January, March, April, and May) each year, one visitation with accommodation for a maximum of five nights shall be conducted in lieu of the visitation set forth in item (i) of this paragraph.
    • (4) The place of delivery of the eldest son shall be F Station.
    • (5) The other party shall allow the paternal grandfather or paternal grandmother to accompany the eldest son during the visitation. (6) The other party shall allow the paternal grandfather or paternal grandmother to receive the eldest child in place of the petitioner if the petitioner is unable to receive the child.
    • (6) The day on which visitation is permitted (hereinafter referred to as “visitation day”) shall be determined in consideration of the welfare of the child. (6) The date of visitation (hereinafter referred to as the “date of visitation”) shall be determined through prior consultation between the parties in consideration of the welfare of the child.
    • (7) The other party shall notify the petitioner when the eldest son is coming to Tokyo.
    • (8) If, due to unavoidable circumstances such as the eldest son’s illness, visitation cannot take place on the visitation date set forth in this Paragraph 6, the other party shall notify the petitioner to that effect at the latest by the day before, and both parties shall consult in good faith to set an alternative date.
    • (9) If the first day of visitation falls on a Saturday, Sunday, or a national holiday, the allowed hours of visitation shall be from noon on the first day to 5:00 p.m. on the last day, and if the first day of visitation falls on a weekday, the allowed hours of visitation shall be from 6:00 p.m. on the first day to 5:00 p.m. on the last day.
    • (10) The petitioner and the other party shall discuss changes to the time for visitation as set forth in the preceding item, depending on the circumstances of the petitioner and the other party, as well as the schooling status of the eldest child.
    • (11) The other party shall pay the petitioner 20,000 yen out of the round trip transportation expenses required by the petitioner for each visitation by transferring the amount to an account in the name of the petitioner on the last day of the month in which the visitation takes place.
    • (12) If the other party does not inform the petitioner by the day before the date of the visit that the visit cannot take place due to unavoidable circumstances such as the eldest son’s illness, and if the petitioner incurs round trip transportation expenses for the visit (including cancellation fees), the other party shall pay 20,000 yen to the petitioner by transfer to an account in the petitioner’s name at the end of the month in which the visit does not take place.
    • (13) The amount of money to be paid by the other party to the petitioner pursuant to the preceding two items shall be limited to 20,000 yen per month in total.
    • (14) In the event that the petitioner or the other party requests the use of a third party organization, such as the Family Affairs Information Center, in order to realize the visitation exchange described in this section, the petitioner and the other party shall use the third party organization in order to realize the visitation exchange described in this section, and the petitioner and the other party shall take all necessary procedures to use the third party organization. The petitioner and the other party shall cooperate in good faith with the various procedures necessary to use the third party organization. The cost of using such a third party institution shall be borne by both parties on a 50/50 basis.
  • (10) The other party shall allow the petitioner to attend events (entrance ceremonies, visiting days, graduation ceremonies, sports events, etc.) of educational institutions such as nursery schools, kindergartens, and elementary schools that the petitioner’s eldest son attends or is scheduled to attend in the future, by notifying the petitioner in advance until March of the year following the year in which the eldest son reaches the age of 22, in addition to the visitation as stated in Paragraph 7.
  • (ix) The other party shall pay the petitioner 20,000 yen out of the round-trip transportation expenses required to attend the events described in the preceding paragraph by transfer to an account in the petitioner’s name as of the last day of the month in which the event is attended.
  • (xii) The amount of money to be paid by the other party to the petitioner pursuant to the preceding paragraph shall be limited to 40,000 yen per year.
  • (xiii) The other party shall inform the educational institutions such as nursery schools, kindergartens, and elementary schools that the petitioner’s eldest son attends or will attend in the future that the petitioner is the father of the eldest son, and shall cooperate with the petitioner so that the petitioner may ask questions, convey requests, etc. to such educational institutions regarding matters concerning the eldest son as necessary.
  • (14) In addition to twice a year, the other party shall promise to send the petitioner photographs or videotapes documenting the process of growth of the eldest son and to have the petitioner send New Year’s greeting cards to the other party in the month when the visitation mentioned in Paragraph 7 could not be realized.
  • (15) The other party shall allow the petitioner to communicate freely with the petitioner, the paternal grandparents and the eldest son by telephone, e-mail, mail, fax, etc. in a moderate manner as the eldest son grows up.
  • 18 (1) The petitioner and the other party shall strictly refrain from saying or doing anything to the eldest son that may cause him to have a bad impression of the other party. In addition, the petitioner and the other party shall make utmost efforts to eliminate any bad impressions that the eldest son may have of the other party.
  • (xix)
    • (1) The other party shall not say or do anything to the eldest son to induce him to refuse visitation, and shall actively cooperate to maintain a good relationship between the petitioner and the eldest son in order to realize visitation exchange between the petitioner and the eldest son.
    • (2) The petitioner shall not say or do anything to the eldest son that would damage the good relationship between the other party and the eldest son, and shall actively cooperate with the other party and the eldest son in their daily lives so that the other party and the eldest son can maintain a good relationship.
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