by Jeremy D Morley
An amendment to Japan's Civil Procedure Law enters into force on June 1, 2021, intended to promote enforcement of Japanese civil custody orders. Although the new law may be helpful it will provide no benefit to non-custodial parents seeking to enforce their visitation rights.
Japanese law continues to provide that only one parent may have custody after a divorce, even if it established that both parents are ideal care providers. There is mounting pressure in Japan to change the law but that has not yet occurred. Accordingly, the only right that a non-custodial may enjoy in Japan is visitation. Even here, however, the visitation rights of a non-custodial parent are generally limited in the extreme.
Traditionally, Japanese court orders in family matters have been entirely unenforceable. That has changed slightly in recent years. The new law is intended to assist in such enforcement. However, it will benefit only the custodial parent. It simply allows for “direct enforcement” of the custodial parent’s right to secure the return of a child who has been removed or retained from that parent’s custody. Since custody after a divorce is usually given to the parent who has previously had the child in his or her possession, the law will now enhance the parent’s ability to enforce sole custody rights.
It is unfortunate that the new legislation provides no assistance to the non-custodial parent’s rights of visitation.
Japanese courts generally limit visitation to a couple of hours once a month in the daytime, in the area where the child is living, unless the parties agree otherwise. To make matters even worse, custodial parents can usually rely successfully on a multiplicity of acceptable excuses for non-compliance with visitation orders. The only way to seek enforcement of these rights is to seek some kind of financial sanction, which is often described as equivalent to a parking ticket. There is no contempt of court for the violation of court orders concerning family law matters in Japan and the only available remedy is the limited financial claim, which is generally difficult to secure and ineffective.
At least the new law might make it a little more likely that custodial parents will agree to allow a little more visitation, since they will now have the availability of a potential remedy if the child is not returned. I have repeatedly explained that in Japan possession is 99% of the law and it may be that the new legislation may lead to a modest change in that regard.
Yesterday I testified on such issues as an expert witness in a case in California concerning a Japanese mother's application to relocate the children from California to Japan. It is most unfortunate that the relocation applications of Japanese parents who wish to move with their children back to Japan must normally be denied because of the failure of the Japanese courts to enforce the provisions of foreign custody orders concerning the sharing of custody between the parents and concerning the rights of a non-residential parents to have liberal access to their children in Japan and in the country where the non-residential parent is living.