IFL Voices: Change in Japanese Custody Laws May Permit Joint Custody After Divorce

In April 2024, the Japanese legislature approved a revision to its Civil Code to permit joint custody of children after divorce. The amendment is expected to take effect in 2026.

Until any new law takes effect, the current status of Japanese custody law provides for sole parental authority after divorce. Married parents share parental authority over their children. Article 818(3) of the Civil Code prescribes that “[p]arental authority shall be exercised jointly by married parents; provided that if either parent is incapable of exercising parental authority, the other parent shall do so.” Even if the parents live separately, they still retain joint parental authority over their child unless they legally divorce. Under Japanese law, if a couple divorces, either a father or a mother has parental authority over a child (Article 819, Civil Code). If parents divorce by agreement, they may agree upon which parent shall have parental authority in relation to a child (Article 819(1)). In the case of judicial divorce, the court shall determine which parent shall have parental authority (Article 819(2)). There is currently no concept of joint parental authority after a parents’ divorce in relation to a child under Japanese law. Thus, only one parent has sole parental authority over a child. The mother has parental authority if the parents are unmarried.

In Japan, the concept of “parental authority” includes both legal custody and physical custody. Parental authority includes various parental rights. Article 820 of the Civil Code prescribes that “a person who exercises parental authority holds the right and bears the duty to care for and educate the child.”

The revised Civil Code allows divorced parents to choose between joint or sole parental authority after holding discussions. It would be a drastic change from the system which only allows sole parental authority after divorce.

As for the actual operation, it is necessary to see the transition in practice after the revised Civil Code takes effect.

It may also be a common misunderstanding perpetuated in U.S. courts, but Japanese custody laws do not favor a mother over a father. There is no presumption for or against either parent because of their gender. The best interests of the child have paramount importance. Japanese courts consider factors related to the parents’ and the child’s circumstances, such as the following: the capacity and willingness as a custodian, experience as a custodian, emotional connections with the child, mental and physical health, character, financial ability, attitude for life, existence of violence or abuse, conditions of the residence, environment of the residence, educational environment, affection toward the child, conditions of the past custody, the support by the relatives or other people, wrongfulness of the removal, and tolerance of visitation, etc. Furthermore, the court will consider, regarding the child, age, gender, mental and physical development, adaptation to the past and current nurturing environment, adaptation to the change of environment, intention of the child, connections with the parents and relatives, and relationship with the siblings, etc.