Lawyers often ask whether a Japanese court will recognize or “mirror” their client’s U.S. custody order. This article focuses on the Japanese legal process in this regard. There is a difference in the process to recognize a visitation (contact) order in Japan and the process to recognize a custody (parenting) order.
There is no system in Japan by which a U.S. visitation (contact) order can be registered in the Japanese court automatically. There are no “mirror orders” available regarding visitation (contact) with a child in Japan. However, the parents can make an agreement in conciliation (mediation) proceedings in the Japanese family court regarding visitation between the parents and the child. If both parents consent to make an agreement which “mirrors” the order made in the United States, the agreement which “mirrors” the order is made in the family court in Japan, and under Japanese law, it has the same effect as a court judgment. It is quite common to make an agreement in conciliation proceedings in the court, whose contents are the same as the foreign court order regarding the custody of the child, the visitation with the child, and the child arrangements, etc.
With respect to a U.S. custody order, in the case where the order is a final and binding order, which satisfies the requirements of Article 118 under the Japanese Code of Civil Procedure, the order may be recognized in Japan. Article 118 states that a final and binding judgment rendered by a foreign court is valid only if it meets certain requirements. The requirements are: (i) the jurisdiction of the foreign court is recognized pursuant to laws and regulations, conventions, or treaties in Japan; (ii) the defeated defendant has been served (excluding service by publication or any other service similar thereto) with the requisite summons or order for the commencement of litigation, or has appeared without being so served; (iii) the content of the judgment and the litigation proceedings are not contrary to public policy in Japan; and, (iv) a guarantee of reciprocity is in place.
In Japan, there have been some court cases that address Article 118. There is a published court case where the court dismissed a Texas father’s petition to enforce the handover of the child because the petition did not satisfy the requirement under Article 118 (iii). The original Texas custody order gave the mother sole custody and permitted her to relocate the child to Japan.
Four years later, when the child was age 11, the father successfully modified the Texas custody order in Texas, to give him sole custody, and ordered the mother to handover the child to the father. The father sought to execute the judgment more than four years after the child assumed residence in Japan, but the Texas order was found to violate public policy under Article 118. (Tokyo High Court judgment, November 15, 1993, Hanrei Times No. 835, p.132). The modified Texas custody order concluded that the child would be able to adjust better to living in the United States than in Japan due to the child’s hearing impairment, prejudice against half- Japanese children in Japan, and competition for entrance exams, among other things. The Tokyo High Court concluded that having the child live in the United States was not in the best interest of the child's welfare, but is instead detrimental to it.
In contrast, in the following, more recent, case, the court granted an execution judgment on a foreign judgment concerning child custody. In a case in which the plaintiff sought an execution judgment from the family court in Japan under Article 24 of the Civil Execution Act with regard to the portion of a Singapore family court judgment ordering the defendant to hand over the child to the plaintiff, the claim by the plaintiff was allowed (Yokohama Family Court Judgment, March 30, 2021, Case Secretary Database loaded). The court stated that the requirements of Article 118 were met (see Domestic Relations Case Procedure Act, Article 79, Paragraph 2). Regarding public policy, the court stated that one of the reasons for not violating public policy as a matter of substance is that the child's residence in Japan was only for 9 months while the child's residence in Singapore was 9 years.
