TURKEY’S ONE-PARENT RULE

by Jeremy D. Morley

www.international-divorce.com

The Civil Code of Turkey (Article 336) expressly provides that, when parents divorce, only one parent may be given custody over their child to the complete exclusion of the other parent, either by agreement or by order of the court (Article 819, Turkey Civil Code). Parental authority includes both legal and physical custody.

The decision as to which parent will receive custody is based on a consideration of the best interests of the child, which may include a consideration of the employment, income and lifestyle circumstances of the respective parents. Usually the non-custodial parent will be awarded visitation.

In an important ruling in 2018, the Turkish Court of Cassation ruled (2017 / 2-3117 DECISION 2018/1278) that the views of a child of adequate maturity should be considered in an application to modify custody, in accordance with the terms of the United Nations Convention on the Rights of the Child and the European Convention on the Exercise of Children's Rights.

The one-parent rule violates, I submit, the fundamental human rights of a child to have two parents in his or her life and of a parent to have his or her child in his or her life. It is also plainly contrary to the best interests of a child to be deprived arbitrarily and automatically of his fundamental right to be parented by two parents.

However, in Matter of Yaman, 167 N.H. 82, 105 A.3d 600 (2014), the Supreme Court of New Hampshire ruled that the Turkish sole custody law was not “the type of “egregious” or “utterly shocking” violation” of human rights that would preclude it from enforcing a Turkish custody order under the UCCJEA, especially because in that case the non-custodial parent had access rights..

Nonetheless In contrast, in recent years courts in Turkey have themselves declared that human rights laws require their courts to permit joint custody, at least in certain circumstances. In particular, since Turkey has adopted Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 5 of which provides that “Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution,” the 2nd Chamber of the Court of Cassation upheld a joint court order concerning British parents. Whether that ruling had opened the door for joint custody rulings in Turkey remains to be seen.   

Japan’s One-Parent Rule

by Jeremy D. Morley
www.international-divorce.com

Japanese law provides only for sole custody. The Civil Code of Japan expressly and unambiguously provides that, when parents divorce, only one parent may be given parental authority over their child to the complete exclusion of the other parent, either by agreement or by order of the court (Article 819, Japan Civil Code). Parental authority includes both legal and physical custody. There is no system in Japan for divorced parents to share parental authority.

The effect of Japan’s one-parent rule is that the parent who does not have custody has no rights whatsoever in Japan to exercise any of the inherent rights of a parent. If both of a child’s parents are good parents but are unable to agree on custodial matters, Japanese law requires that one of the parents must automatically be stripped of all of his or her rights concerning the child (with the very limited exception of an extremely limited visitation right). The courts in Japan have no discretion in this regard. The one-parent rule is mandatory and totally inflexible.

On September 27, 2019 the Japanese Justice Ministry announced that it “will launch a study by the end of this year on whether to introduce a system of joint custody in Japan, where child custody is awarded to one parent after divorce” and that the panel will then spend “more than a year compiling a report.” However, it is far from clear that the necessary changes will be made, since the proposal to modify the law has already generated substantial opposition.

It is alien to Japanese tradition and Japanese law for a child’s parents to have any significant sharing of parental responsibility upon a family break-up. When parents separate in Japan, one parent invariably takes the child and the other parent largely or entirely disappears from the child’s life. It is an extension of the traditional Japanese custom that children belong to a family and can be registered on the official Japanese koseki (family register) of only one family. Thus, the one-parent rule is not merely the mandated law but it is also the societal norm. Indeed, it is considered entirely inappropriate in Japan for the parent who does not have custody of a child to interfere with family peace. and with the child’s best interests, by demanding more than occasional and extremely limited contact with a child. It is also considered to be entirely inappropriate for a Japanese court to interfere with family peace by taking any significant action against the parent who is in possession of a child except for suggesting and encouraging mediation or conciliation in the context of the rule that a child “belongs” to the one parent (and his or her family) that has custody of the child.

A significant reason for the one-parent rule, as well as the concomitant practice of drastically limiting child visitation, is to allow and encourage the custodial parent to establish a new family with a new spouse. It is common in Japan for a custodial parent’s new spouse to adopt a child from a prior marriage. Thus, if the noncustodial father has significant contact with his child, it would significantly hinder the mother’s opportunity to remarry, which would be considered in Japan to be unfair to both the mother and the child.

I have worked with Japanese counsel on several cases in which we tried to create a shared decision-making regime for children living in Japan, even when both parents agreed to continue living in Japan. Unfortunately, all such efforts were entirely unenforceable and unworkable, and all efforts to secure the meaningful intervention of the Japanese courts to enforce the terms of the parents’ prior stipulated orders proved entirely futile. 

Japan’s one-parent rule violates the fundamental human rights of a child to have two parents in his or her life and of a parent to have his or her child in his or her life. It is also plainly contrary to the best interests of a child to be deprived arbitrarily and automatically of his fundamental right to be parented by two parents.

EXPERT TESTIMONY ON INDIA CHILD CUSTODY LAW

The Federal Circuit Court of Australia has issued a ruling denying a mother’s application for overseas travel from Australia to India to attend her marriage ceremony.

The decision was based in large part on my expert testimony concerning the child custody laws of India and the risks of international parental child abduction for a child traveling to India.
The decision, dated June 14, 2019, is reported at [2019] FCCA 1577.