International relocation of children law in Japan: overview

A Q&A guide to international relocation of children in Japan.

This Q&A gives a high level overview of matters relating to rights and responsibilities of parents, right to remove, procedure for relocation, dispute resolution in relocation matters, right to appeal, as well as child abduction.

This Q&A is part of the global guide to international child relocation law. For a full list of jurisdictional Q&As visit www.practicallaw.com/relocation-guide. To compare answers across multiple jurisdictions, visit the International Relocation country Q&A tool.

For an introduction to the guide, see the foreword to the International Relocation of Children Global Guide by Mr Justice Stephen Cobb.

Hirotaka Honda, Honda Law Office
Contents

Rights and responsibilities of parents

Legal responsibility for upbringing

1. What is the legal position of married and unmarried parents in relation to a child's upbringing, and is there a difference? Who has legal responsibility for a child's upbringing?

Married parents have shared parental responsibility for the children who were born to them (Article 818 (1) A, Civil Code). Parental authority is exercised jointly by married parents. If one of the parents is incapable of exercising parental authority, the other parent exercises parental authority.

The residence of a child is determined by the person who exercises parental authority (Shinken) (Article 821, Civil Code).

The legal position of unmarried parents is different from that of married parents. Only one of the unmarried parents has parental responsibility of a child born to them.

When an unmarried mother gives birth to a child, she has the parental responsibility unless the parents agree otherwise or a court orders that the father has the parental responsibility. There is no shared parental responsibility. If the father obtains parental responsibility, the mother cannot keep the parental responsibility.

A father can only exercise parental authority with regard to his child if both parents agree that he will have parental authority (Article 819(4), Civil Code). When the parents do not, or cannot, reach an agreement, the family court can make an order in lieu of the agreement at the request of either of the parents. At the request of the child's relative, the family court can rule that the other parent will have parental authority in relation to the child if it is necessary for the interests of the child.

Birth certificates are not issued by the central government or local governments. Local governments keep the family register (Koseki) which records the family relationships of each family member.

The family register includes the following information for each person (Article 13, Family Register Act):

  • Name.

  • Date of birth.

  • The cause and date of his/her entry in the family register.

  • The names of his/her natural parents and his/her relationship with the natural parents.

  • In the case of an adopted child, the name(s) of his/her adoptive parent(s) and his/her relationship with the adoptive parent(s).

  • For a husband and wife, a statement that they are husband and wife.

The legal position of some parents in relation to their child's upbringing will not be decided by applying Japanese law, but by applying the law of another jurisdiction. The legal relationship between the parents and their child is governed by (Article 32, Act on General Rules for Application of Laws):

  • The child's national law if it is the same as the national law of either the father or the mother (in cases where one parent has died or is unknown, the national law of the other parent).

  • The law of the child's habitual residence, in all other cases.

If the child has more than one nationality, the national law is (Article 38 (1), Act on General Rules for Application of Laws):

  • The law of the country of his/her nationality, where he/she has his or her habitual residence.

  • The law of the country with which the child is most closely connected, if there is no such country of his/her nationality, where he or she has his or her habitual residence.

  • If one of those nationalities is Japanese, Japanese law will be the child's national law.

Rights and responsibilities post-separation

2. Do parents continue to share rights and responsibilities for the child following separation?

The parents do not share the rights and responsibilities for the child following separation. Only one parent continues to have parental responsibility. When parents divorce by agreement, they decide who will have parental responsibility.

In the case of a judicial divorce, the court determines which parent will have parental authority. In the case where the parents divorce before the birth of a child, the mother exercises parental rights and duties; however the parties may agree that the father will have parental authority after the child is born.

The family court can make an order in lieu of an agreement at the request of the father or the mother. The family court may, at the request of any relative of the child, rule that the other parent will have parental authority in relation to the child if it finds it necessary for the interests of the child.

The other parent who does not have parental responsibility will still have an obligation to pay child maintenance and can have contact with the child.

 
3. How do parents generally share the care of children following separation?

Overview

Typically, only one parent raises the child and separated parents do not share the care, however, the other parent may have contact with the child.

Custody and access

The issue of access/contact/visitation is different from that of parental responsibility/custody. A parent who does not have parental responsibility/custody may have access/contact/visitation.

Court order

The following orders can be made by family courts to determine or regulate a child's care arrangements (Article 766(1), Civil Code):

  • Order to appoint a parent who takes care of, and educates, the child (Kangosha).

  • Order to pay child support.

  • Visitation and contact order.

  • Order to pass the child to the other parent (to allow the other parent to take the child). This order is usually made when the court has appointed a parent to take care of the child but the other parent is living with the child.

When a court gives an order to appoint a parent who will take care of and educate a child (Kangosha) of a married couple, only the specified parent has the power to take care of and educate the child and most likely the other does not share any power to do so.

If the parents divorce by agreement, the matters of appointing a parent who will have the custody over a child, visitation and other contacts between the other parent and the child, payments of child support and any other necessary matters regarding custody over the child are determined by that agreement. The child's interests are considered to be the highest priority (Article 766 (1), Civil Code). The family court can issue an order if the agreement cannot be reached. The family court can change the agreement and make a different disposition regarding custody over the child, if it finds this necessary.

Article 766 of the Civil Code can be applied not only to the custodial issues of a child of separated parents but also to that of a child of married parents (Supreme Court, 1 May 2010 (No Heisei 12 (kyo) 5) 54-5 Minshu 1607).

It is unclear whether "any other necessary matters regarding custody over the child" in Article 766 include relocation matters between married parents as they have shared parental responsibility. The author has never heard of any precedents on the issue. In such cases, the parent should apply not for a relocation order but for an order to appoint a parent who will take care of and educate a child (Kangosha) (Article 766(1), Civil Code).

 

Relocation/right to remove

Overview

4. Are relocation cases a familiar feature of family law within your jurisdiction?

The author of this chapter has never tried and heard of relocation proceedings in a family court.

When parents have already divorced, only one parent has the parental responsibility (Shinken). The residence of a child is determined by the person who exercises parental responsibility (Shinken) (Article 821, Civil Code). The parent who has divorced and has solo custody can change where the child lives without the consent of the other parent.

When parents have not yet divorced and therefore have shared parental responsibility (Shinken) of the child between them, one parent cannot change the place where the child lives without the agreement of the other.

It is likely that the parent who wants to move with a child without the necessary consent of the other parent who shares the parental responsibility (Shinken) (Article 818, Civil Code), will first apply for the Kangosha order (Article 766(1), Civil Code).

In the opinion of the majority of lawyers, a parent who is appointed as the Kangosha can relocate the child to other jurisdictions without further court orders even if the other parent (who shares Shinken) is against the relocation. It is considered that the other parent's Shinken does not include the power to take care of and educate a child and therefore does not include the power to decide on the child's place of residence.

Relocating a child by a parent who does not have the Kangosha order without the permission of the other parent who has the Kangosha over a child will constitute child abduction.

 
5. When do relocation disputes tend to arise and what are the most common reasons for parents seeking to relocate?

Relocation disputes tend to arise when the relationship between the parents is failing,

as well as for job-related reasons (for example, a transfer within a company). Parents tend to relocate with children when they fear that if they decide to leave the child with the other parent, the other is more likely to get the parental responsibility in case of divorce.

General principles and guidance

6. What is the legal position of a parent who seeks to relocate a child internationally?

If the Japanese law is applied, only a parent who is married to the other parent and shares parental responsibility must get the consent of the other parent to relocate with the child internationally. This is because married parents share the power and responsibility to decide where the child should live (Articles 820 and 821, Civil Code).

 
7. What are the legal principles applicable to relocation disputes?

The child's interests must be considered as the highest priority in a relocation dispute (Article 766 (1), Civil Code).

In judicial proceedings to appoint the parent who will take care of and educate a child (Kangosha) the judge considers the following factors (see Satoko Ishigaki & Kei Shigetaka, “Ko no Kangosha no Shitei Hikiwatashi Choutei Shinpan Jiken no ShinriHousou Jihou Vol. 66 No. 10 (Housoukai 2014) at 37-69, 47):

  • Which of the parents was the primary carer.

  • How well the primary carer took care of the child.

  • How well the other parent took care of the child.

  • Who helped the parents to take care of the child and how they helped.

  • How good were the relationships between the parents and the people who helped them.

  • How is the child taken care of at present.

  • What are the child's wishes and feelings.

  • Ability to raise the child of each parent.

  • Preparation and feasibility of each parent to raise the child.

 
8. Do the principles applicable to relocation disputes differ in cases where the parent is seeking to relocate temporarily rather than permanently?

In judicial proceedings to appoint the parent who will take care of and educate the child (Kangosha) (Article 766(1), Civil Code), a plan of permanent relocation is likely to be taken into account more seriously, as such a relocation has a significant influence on the child's life. The child's wishes and feelings about relocation and the parent's preparation to relocate with the child may also be considered.

 
9. Have the courts in your jurisdiction provided any guidance to help the judges to apply the principles correctly?

There is no guidance relating to relocation cases.

The courts do not officially provide any guidance to help the judges to decide on the appointment of the parent who will take care of and educate a child (Kangosha) (Article 766(1), Civil Code).

 
10. What is the perception of the public and/or legal profession of the way in which relocation disputes are determined by the courts?

The general view is that the courts tend to appoint a primary carer as the parent who will take care of and educate the children (Kangosha) (Article 766(1), Civil Code). It is likely that the parent who has predominantly taken care of the child in the past will be appointed as Kangosha, which will allow him or her to relocate with the child, unless the way in which the parent looked after the child was harmful. If the child is older and more mature, his or her wishes and feelings are more likely to affect the court's decision.

 
11. Where are the most common places to which parents seek to relocate with children from your jurisdiction?

According to statistics, the most popular foreign nationalities that the Japanese people get married to include Chinese, Phillipinos, North or South Koreans and Americans.

When the marriages end, relocations most often tend to be back to the country of origin of the spouses.

Procedure for relocation

12. What is the legal procedure for seeking to relocate?

Procedure

The procedure for an order to appoint a parent who will take care of and educate a child (Kangosha) (Article 766(1), Civil Code) is provided by Domestic Relations Case Procedure Act.

Applicants must try court mediation first, except for unusual cases. If the applicant does not reach an agreement with the respondent, the judge will decide whether to appoint the applicant as a Kangosha in closed judicial proceedings. The judge can appoint the respondent as a Kangosha even if the applicant sought the order.

Duration of procedure

The Supreme Court offers statistics about the Japanese judicial system on its website (www.courts.go.jp). In most cases, the procedure is concluded within one year, with many cases, it can be complete in three to six months. The statistics are available on www.courts.go.jp/app/files/toukei/125/008125.pdf.

 
13. What steps can be taken to prevent a parent removing the child from the jurisdiction without the agreement of the other parent or the court's permission?

A child will not be issued with a passport if one parent/guardian submits a written refusal to passport offices in Japan or Japanese Embassies and Consulates-General abroad. The passport for the minor will be approved and issued once the other parent/guardian who did not consent submits a letter of agreement to issue a passport for the minor applicant to a passport office in Japan or Japanese Embassy/Consulates-General abroad.

The author has never tried nor heard of an order that a parent can apply for to stop the other parent from leaving the country with the child.

Alternative dispute resolution (ADR)

14. Are methods of ADR used to help to resolve relocation disputes in your jurisdiction? How effective are these ADR methods in such cases?

Methods of ADR are used to help to resolve family-related disputes. Six bar associations have recently started to offer ADR for HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention) return cases and Hague Child Abduction Convention access.

The agreement reached through the use of ADR methods is merely an agreement between the parties and [s not enforceable.

Factors in relocation cases

15. What significance do the child's wishes and feelings have in a relocation case and how are these ascertained/presented?

The child's wishes and feelings are likely to be taken into consideration in a relocation case if such a case is dealt with by a family court. They will also be considered in judicial proceedings to appoint the parent who will take care of and educate a child (Kangosha) (Article 766(1), Civil Code).

When making a ruling regarding the custody of a child (excluding a ruling on the sharing of expenses required for the custody of a child), the family court must hear statements of the child in addition to hearing statements of the parties under Article 68 (Article 152 (2), Domestic Relations Case Procedure Act). The child must be 15 years old or older to be heard by the court.

Even when the child is under 15 years old, the judge will try to understand the child's wishes and feelings and take them into consideration according to the child's age or degree of development (Article 65, Domestic Relations Case Procedure Act).

A court handling a relatively complex custody case often orders internal investigators to examine the opinion of the child. Judges give significant weight to the reports of court officers and investigators.

 
16. Are there any differences between geographical regions/areas in your jurisdiction in the way in which relocation disputes are determined by the courts?

Generally, there are no great differences in the way in which family disputes are determined by the courts in local areas in Japan.

Offers of security

17. Do offers of security for the return of the child to spend time with the other parent feature in relocation disputes in your jurisdiction? What form do these take?

Offers of security for the return of the child to spend time with the other parent do not feature in relocation disputes in Japan. Relocation disputes are not heard by the Japanese courts in the same way they are in other jurisdictions.

Rights of appeal

18. If a parent is dissatisfied with the decision made by a court in a relocation case, does the parent have a right to appeal?

A matter regarding relocation can be heard in a family court as a case regarding the custody of a child. Such cases are decided in proceedings for the adjudication of domestic relations under the Domestic Relations Case Procedure Act, and the parent has a right to appeal (Articles 85 and 156, Domestic Relations Case Procedure Act). The party who is dissatisfied with the decision can file the appeal within two weeks from the notice of the order to appeal (Article 86, Domestic Relations Case Procedure Act).

The appeal to the court of appeal prevents the ruling of the family court from taking effect (Article 74(2), Domestic Relations Case Procedure Act).

Except as otherwise provided, a ruling (excluding a ruling to dismiss a petition) will become effective when notice of it is given to a person who is subject to that ruling (if there are two or more persons subject to the ruling, one of these persons). A ruling against which an immediate appeal can be filed will not become effective until it becomes final and binding.

 

Abduction

Overview/domestic and international law

19. What is the position if a parent removes a child from your jurisdiction to another without the consent of the other parent and/or permission from the court?

A parent who is married to the other parent, and shares parental responsibility, must get the consent of the other parent to remove the child from Japan to another jurisdiction if Japanese law is applied to the case (Articles 820 and 821, Civil Code).

If the parent who does not have the right to do so removes the child to another jurisdiction, the left behind parent can try the return process under the HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention), if possible. Alternatively, it may be possible to use domestic family court proceedings in another jurisdiction.

 
20. Is your jurisdiction a signatory to any relevant treaty or convention concerning child abduction?

Japan is a signatory to the HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention).

The Hague Child Abduction Convention entered into force in Japan on 1 April 2014. The Act for Implementation of the Convention on the Civil Aspects of International Child Abduction took effect on the same day. It is available at www.japaneselawtranslation.go.jp.

Factors

21. Are there any defences which could be raised by a parent to attempt to avoid the child's return?

The following defences provided by the HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention) are available (Article 28(1), Act for Implementation of the Convention on the Civil Aspects of International Child Abduction):

  • The petition for the return of the child was filed after the expiration of the period of one year since the time of the removal, or the commencement of the retention of the child, and the child is now settled in his/her new environment.

  • The petitioner was not actually exercising the rights of custody at the time of the removal, or the commencement of the retention of the child (except in the case where it could be deemed that the rights of custody would have actually been exercised by the petitioner but for said removal or retention).

  • The petitioner had given prior consent or subsequently approved the removal or retention of the child.

  • There exists a grave risk that his/her return to the state of habitual residence would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

  • The child objects to being returned, in a case where it is appropriate to take account of the child's views in light of his/her age and degree of development.

  • It would not be permitted by the fundamental principles of Japan relating to the protection of human rights and fundamental freedoms to return the child to the state of habitual residence.

When deciding whether or not there is a grave risk that the child would be exposed to physical or psychological harm on his or her return, the court will consider the following circumstances:

  • Whether or not there is a risk that the child would be subject to the words and deeds, such as physical violence, which would cause physical or psychological harm by the petitioner, in the state of habitual residence.

  • Whether or not there is a risk that the respondent would be subject to violence by the petitioner in such a manner as to cause psychological harm to the child, if the respondent and the child entered into the state of habitual residence.

  • Whether or not there are circumstances that make it difficult for the petitioner or the respondent to provide care for the child in the state of habitual residence.

The expressions of the defences listed in the Article 28(1) are slightly different to those listed in the Hague Child Abduction Convention. However, it is said persuasively in the jurisprudence that there is no material difference in the meaning of the words used in the Hague Child Abduction Convention and the implementing act (see Osamu Kaneko and others, Ichimon Ittou Kokusaiteki na Ko no Turesari heno Seidoteki Taiou (Shouji houmu 2015) at 133).

The items listed in Article 28(2) are mere factors to be taken into consideration when the grave risk is considered (see Osamu Kaneko and others, Ichimon Ittou Kokusaiteki na Ko no Turesari heno Seidoteki Taiou (Shouji houmu 2015) at 144).

 
22. How are the child's wishes/feelings ascertained or presented in an abduction case?

The child's wishes and feelings are ascertained and taken into consideration in the HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention) return cases.

A court handling a Hague Child Abduction Convention return case often orders court investigator(s) to examine the wishes, feelings and opinions of the child. Judges give significant weight to their report.

The child also has a right to appeal against a final order on the return of child (Article 101(2), Act for Implementation of the Convention on the Civil Aspects of International Child Abduction).

The child can intervene in the proceedings except when doing so would harm the interests of the child. The court will dismiss the application of the child if it finds it is harmful to the child's interests (Article 48, Act for Implementation of the Convention on the Civil Aspects of International Child Abduction).

 

Reform

23. Are any legal developments in progress or planned in the law which may affect the law or practice in relocation or abduction cases?

There are no major legal developments in progress or planned which directly affect the law or practice in relocation cases. The reform of the law relating to international jurisdictions of family cases is in progress.

Case law on international child abduction is developing steadily.

 

Online resources

Japanese Law Translation

W www.japaneselawtranslation.go.jp

Description. This site is maintained by the Ministry of Justice. The translations contained are unofficial and the government of Japan is not responsible for the accuracy, reliability or currency of the legislative material provided on the website.



Contributor profile

Hirotaka Honda, Partner

Honda Law Office

T +81 3 3463 6602
F +81 3 3463 6608
E hirotaka@hondalaw.com
W www.hondalaw.com/

Professional qualifications. Japan, Barrister and Solicitor/Attorney at Law, Tokyo Bar Association, 2005

Areas of practice. International family law; child abduction; relocation; wills, trusts and succession; LGBT rights/SOGI issues; legal professional privilege

Non-professional qualifications. LL.M., University of Tokyo, Graduate School for Law and Politics

Languages. English, Japanese

Professional associations/memberships. International Bar Association, member since 2009; officer of the Family Law Committee, 2013–2015; American Bar Association, associate member since 2013

Publications.

  • Co-contributor, Domestic Violence and Sexual Harassment Manual, Shoujihoumu, 2012.

  • Co-contributor, Practitioner's Guide to Domestic Violence, Child Abuse and Elder Abuse Cases, Shinnipponhoki, 2009.

  • Co-contributor, Legal Advice for Women, Gyosei, 2009.


{ "siteName" : "PLC", "objType" : "PLC_Doc_C", "objID" : "1248306373172", "objName" : "International relocation of children law in Japan overview", "userID" : "2", "objUrl" : "http://us.practicallaw.com/cs/Satellite/us/resource/8-622-3646?null", "pageType" : "Resource", "academicUserID" : "", "contentAccessed" : "true", "analyticsPermCookie" : "25e8a493e:15b0ad34546:-70c", "analyticsSessionCookie" : "25e8a493e:15b0ad34546:-70b", "statisticSensorPath" : "http://analytics.practicallaw.com/sensor/statistic" }