Japan’s Post-Divorce Child Custody System Is Set to Undergo a Major Overhaul

The Japanese government has drafted legislation to allow joint custody post-divorce amid international criticism calling Japan’s present child custody system outdated.

Currently, joint custody does not exist for divorced parents in Japan unless the two parties agree to it informally. What exists instead is a controversial sole custody system in which one parent wins custody while the other loses their parental rights after a divorce.

In more than 80 percent of divorce cases in Japan, custody is granted to mothers, leaving fathers without legal access to their children. The courts provide mediation for the two parties, but if no resolution is achieved, the judge will determine which parent will have sole custody.

Opponents of sole custody – including parents separated from their children – argue that Japanese authorities and the family court have turned a blind eye to custody disputes.

The proposed amendment challenges the traditional view that parental custody is a private family matter and that women should be in charge of child-rearing. Proponents argue that a joint custody system upholds children’s rights and will likely reduce the number of unpaid child support cases.

Under the revised law, a judge will determine whether joint custody and visitation rights can be applied in a contested divorce. However, it is yet to be determined whether already-divorced parents will be able to apply for joint parental custody after the law comes into effect.

Japan has been under growing international pressure to review its sole-custody laws. Japan is the only Group of Seven (G-7) member nation to not recognize the legal concept of joint custody. In recent years there have been a number of high-profile cases led by foreign fathers accusing their former Japanese wives of child abduction.

While Japan has been a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (Hague Abduction Convention) since 2014, it has been accused of non-compliance. The treaty stipulates that when cross-border child abduction occurs, the authorities in both countries are required to initiate talks to settle the dispute.

In reality, child abduction by a parent is not a criminal offense in Japan. There have been a number of cases where children have been taken from their country of residence to Japan by a Japanese parent despite joint custody being ordered by an overseas court. The existing family law system has been criticized for incentivizing kidnapping and severing parent-child interactions.

Currently, the law grants custody to the parent who currently lives with the child as a way to maintain stability for the child. As a result, in many cases, divorce attorneys actually advise clients to take the children in order to establish a record of custody and de facto control. The Japan Law Foundation’s best practice manual highlights the “urgency” for a lawyer representing a divorcing parent to “secure the child under the client.”

In Japan post-divorce agreements are made based on voluntary cooperation. This also includes child support payments. A typical divorce deal is one where the father does not pay child support, and does not see the child again. Both visitation and child support orders are unenforceable.

Japanese parents who lose out to the sole-custody system have typically suffered in silence. It is the growing number of dual national children born out of international marriages that has strengthened calls for a revised custody system. In recent years there has been a string of international support for foreign victims of Japan’s custody system. In 2019 Italian Prime Minister Giuseppe Conte raised concerns about an ongoing custodial dispute between an Italian national and their Japanese ex-spouse.

The issue attracted domestic and international media attention after the Japan-based French national Vincent Fichot staged a hunger strike outside the National Stadium in Tokyo in 2021 during the Olympic Games, which sparked diplomatic talks between France and Japan. French President Emmanuel Macron raised the issue with then-Prime Minister Abe Shinzo but it failed to help advance the dispute.

French authorities issued an arrest warrant for Fichot’s Japanese ex-wife over allegations his dual national children had been abducted by their mother in Japan. But in 2022, a court in Tokyo upheld Fichot’s ex-wife’s sole parental rights. Fichot’s high-profile case led to support from the European Union Parliament as well as U.S Ambassador to Japan Rahm Emanuel, who urged Japan to uphold the Hague Abduction Conventions and return abducted children.

The latest revision to the civil code to allow joint custody is a significant step forward for divorced parents in Japan. Under the proposed system, the family court will play a larger role in monitoring and executing court orders. But there are questions around how the family courts in Japan will enforce compliance orders since domestic laws in Japan ban the use of force to extract children abducted by a parent. Lawmakers are expected to deliberate on how joint custody can prevent child poverty and how local welfare institutions can prevent child abuse in families with a history of domestic violence.

If the legislation is passed in the current Diet session, joint custody would be introduced by 2026.