婚姻関係解消に伴う様々な法律問題

Child Custody Issues at/after Divorce in Japan

If parties to a marriage wish to divorce by consent, they must agree upon which parent shall have a sole parental authority. If the parties are unable to agree, then the Court shall determined which parent shall have parental authority. A parent who has parental authority has: the right and duty, to care for and educate the child; the right to determine the residence of the child; the right to discipline the child to the extent necessary; the right to decide whether to allow the child to have an occupation; and the right to administer the property of the child and represent the child in any legal matters. The parties may agree or the Court may make a determination of who will have the authority over the personal matters of the child (the first 4 authorities of the parental authority). Generally, a person who has the authority over the personal matters of the child will have the physical custody of the child. In practice, it is quite rare for the parties to make an agreement under this provision. Consequently, in most cases, the parties will only have an agreement upon which parent shall have sole parental authority under Article 819 of the Civil Code (Minpo). A parent who has sole parental authority will have both physical custody of the child and sole parental responsibility (i.e. the other parent has no right in relation to the child apart from visitation rights as agreed between the parties). Before the 1960s, it was the fathers who usually obtained the sole parental authority over the children. At present, in over 80% of the divorces matters, the mothers obtain sole parental authority over the child. In most of the case, the mothers will obtain sole parental authority over the children if the children are infants. Hence, it is a common understanding among the Japanese mothers who have infants that they will obtain the sole parental authority. This seems to be the case even if the Japanese mothers reside outside Japan.