The government of Japan is gearing up to create domestic legislation in preparation for joining the Hague Convention on the Civil Aspects of International Child Abduction. They have said it will be addressed in the next full session of the Diet in the new year. Currently, as many of you are aware, reports indicate that the government of Japan is intending to create loopholes in this legislation which ensure that very few if any children will be required to be returned under the Convention. In order to prevent this, there has been proposed legislation created by left behind parent groups here in Japan which is presently being used to lobby Diet members on the behalf of LBP’s.
There are two plans which are being used currently. One plan, very political in nature, is not strongly worded and in this writer’s opinion, does not have a very strong enforcement component in it. The second plan, written by a former Judge in the Japanese legal system, is very strongly worded and calls for a law similar to California’s current family law system post separation and divorce. The enforcement component seems stronger. Please read the two plans below and as the title of this article indicates, judge for yourself.
PLAN 1 – writer unknown
A Letter to Request the Creation of Laws to Prohibit the Kidnapping of Children and the Legal Requirement to Create a Cooperative Plan to Raise Children in the Event of Divorce or Separation
February 4, 2011
National Association for the Establishment of Laws to
Prevent Separation of Parents and Children
The problem of child kidnapping and separation is a problem that causes physical and mental instability to the point of threatening the life of the child and separated parent as well as the parent who separates the child, and intimately affects the growth of the children who will be responsible for the society of the future, so we believe the state should consider it as a problem that needs to be solved at the highest priority.
We request to all Diet members to fully understand the current situation, and cross party and factional borders to submit and pass the “Law to Stop the Interruption of Parent-Child Interaction (tentative name)” within this regular Diet session.
-It is stipulated that relations between spouses and those of parents and children are separate, and even during times of living separately or after divorce, maintaining frequent and continued interaction between parents and children is seen as “the most beneficial for the child”, and the interruption of parent-child relations is contrary to the “welfare of the child”.
2. Carrying Out Cooperative Child Raising
-That during period of separation or after divorce, in order to ensure that the parent living separately is able to participate in the raising and education of the child in conjunction with the parent living with the child, the necessary steps will be taken to ensure that the separated is able to have the necessary access to the child (2 nights, 3 days every other week, longer stays during long vacations, etc, to allow for over 100 days, such as is the standard in the West.)
-That the parties included in this interaction shall include grandparents.
3. The Decision of a Mutual Plan for Child Raising
-That separation and divorce cause a much shock and uneasiness to children, and that in order to support children both materially and mentally and reduce the impact as much as possible, the creation of a “Mutual Plan for Child Raising” to define support payments and interaction times shall be made mandatory.
-In the Mutual Plan for Child Raising, in addition to defining support payments and interaction times, it will also be made clear that the separated parent must be consulted and agree to important issues related to the child (schooling, employment, etc) .
4. The Prohibition of Kidnapping
-“Leaving with a Child” the taking of a child without both parents’ consent shall be prohibited.
-In the case that one parent takes a child without permission, the child will be returned to the original residence while taking into account any domestic violence or abuse, and arrangements will be made for the two parents to discuss the raising of the child as soon as possible.
5. Principle for the Decision of Primary Guardian
-As the provision of as much contact with both parents as possible is desirable, the primary guardian and custodianship will be given not necessarily to the parent currently in custody, but in principle will be decided with the following guidelines:
1. The parent who kidnapped or separated with the child shall lose custody. (loss of custody).
2. Priority to the more accommodating parent (The parent who agrees to the most frequent visitations with the other).
3. Equality between the sexes.
4. The parent (loss of custody) who has applied for restraining orders to keep the opposing parent away from their children based on false accusation of domestic violence (DV) shall lose custody of the child.
6. The Provision of Parenting Programs
-That programs of study will be created to educate that it is beneficial to create an environment following divorce in which a child can have contact with both parents.
-That it will be prohibited to refuse the attendance of the separated parent at the child’s school events, and that the parent will be able to receive recordings of such events.
7. The Restoration of Participation of the Non-Custodial Parent in Mutual Child Raising
-That it be made possible to restore participation in mutual child raising to the parent who has lost custodial rights (does not have them), in line with the Mutual Plan for Child Raising. Based on this, taking into consideration past events, such as attempts by the custodial parent to leave with the child, it shall be possible to make changes to guardianship and custodial right.
-That counseling and other steps be provided to parents and children who separated for a long duration.
8. Collateral for Effectiveness
-By setting fines and the provision for changes in guardianship and custody, there will be collateral provided to ensure that the above process will be properly followed.
9. Directions to the Government in Relation to Mutual Custody Programs, etc.
-That the government will be directed to create a program for both parents to retain custody (Mutual Custody Program) for a set period of time, based on the fact that it is a problem that under the current programs, one parent is deprived of custody regardless of whether there has been any reason to forfeit custody.
PLAN 2 – Written by former Judge Masanori Watanabe
Parental Authority Law (private scheme)
Because of Japan’s old institution of giving a single parent sole authority of his (her) children after divorce, and given the growing rate of divorces, an enormous amount of suffering is being inflicted on the other parent when he (she) is forced to be completely separated from his (her) own children, notwithstanding depriving a great number of children of their good growing environment to become respectable adults. Therefore we have decided to bring forward this law to prevent these sad cases from happening following divorce or separation of parents of children, and to ensure a healthy environment for children to grow up, in which they can keep enough contact with their parents, together with removing as much difficulty and sadness caused by divorce as possible from children.
Article 1 (Those who hold parental authority in case of divorce or recognition)
① The parental authority of his (her) child should be carried out by both of their parents after their divorce under agreement.
② In the preceding item, parents should nominate one of them as custodial parent (called「custody parent」 in the following sentences). The other parent (called 「non-custody parent」 in the following sentences) carries out his (her) parental authority in ways other than the custody parent in cooperation with the custody parent.
③ Their child(ren) follows the direction and provided by the custody parent. The custody parent should allow the non-custody parent enough time to meet his (her) own child in a year, not accepting, if he(she) wants, any observation by the custody parent. The amount of time to meet his (her) own child should be more than 150 days including lodging with his (her) child more than 70 days per year, and more than 6 hours per day excluding the night time of 11PM to 7AM.
④ If one parent takes away his (her) child without permission of the other parent, he (she) should be deprived of whole parental authority and any parental qualification permanently thereafter.
⑤ As for the taking away of a child in the preceding item, the taking parent cannot bring forward such an excuse as domestic violence (called DV in the following sentences). If he (she) takes away his (her) child on account of false claim of DV, he (she) should lose any parental authority and any parental qualification permanently thereafter. Only if he (she) gets judicial order of protection from violent partner from a court in the process of divorce, he (she) should be considered as one who took away his (her) child on account of DV. Therefore if DV is proved by clear and objective proofs, this rule will not be applied.
⑥ When parents make divorce before the birth of a child, the parental authority should be carried out by both parents. In this case they can nominate one parent as a single parental authority holder under their agreement after the birth of the child.
⑦ When a father admits the child as his own child after the child’s birth, the parental authority of the child should be carried out by both parents. In this case, the latter sentence of the preceding item should be applied.
⑧ If the agreement of the second item as for the nomination of the custody parent or the third item as for the schedule of meeting his (her) child cannot be accomplished, each parent can request family court to rule on a decision. The family court should decide on custody according to the grade of sincerity for the custody and the mind of the child as far as possible. And the court is forbidden to take DV reason for the account of the decision, unless there are clear and objective proofs.
⑨ If the environment of the child needs change of the custody parent, a family court can change the custody parent to the other one for the benefit of the child, by the offer of the relatives of the child. In this case the family court should decide according to the grade of sincerity for the custody and the mind of the child as far as possible. And the court is forbidden to take DV reason for the account of the decision, unless there are clear and objective proofs.
If the custody parent prevents the non-custody parent from meeting his (her) child as stated in the third item without any acceptable reason several times, the measure which should be taken is the same as that of the preceding sentence. In this case the change of the custody parent should be allowed as a rule as long as there is no justifying reason. In this case custody parent or court is forbidden to take DV reason for the account of the decision.
Article 2 (The order of the court to bring back his (her) child over to custody parent)
① The parent who takes his(her) child without agreement should bring the child back over to custody parent as soon as possible.
② If the parent who should do the duty does not carry out the duty within a due period within two months, he (she) should be treated as a perpetrator of the abduction of his (her) child.
③ A parent whose child has been taken away by the other parent without agreement can request the family court which falls under the judicial territory according to the living place of the child or of the custody parent to announce the order of bringing the child back over to the custody parent. The measure of carrying out this order includes direct compulsion which is allowed when any means have been done and the procedure will be conducted by an execution officer, as well as indirect one. The execution officer can ask police to support the action of the family court. And the court is forbidden to take DV reason for the account of the decision to announce this order.
Article 3 (Prohibition on concealing information of children from a parental authority holder)
① Any concealment of information about children from a parental authority holder is prohibited.
② Anyone who has moved children without permission of a parental authority holder, or who has concealed information about children from a parental authority holder, should be liable to imprisonment at hard labor for less than ten years.
③ The police are obliged to give information to a parental authority holder about the whereabouts of his (her) children after confirming their whereabouts when the parental authority holder requests.
Article 4 (Bringing back prior abducted child(ren))
① One who already abducted his (her) child without any permission of the other parent
before this law has come into effect should lose all qualification of parental authority and of custody parent status permanently thereafter.
② Any adoptions taken before this law has come into effect should be announced invalid. However, both parents can newly agree to have their child adopted as before. However, in this case, they should consider the mind of the child primarily for the solution of the problem.
③ The fifth item of article 1, the article 2, and the article 3 are similarly applied in this article ４.
Article 5 (Similar application) This law should be similarly applied to cases of divorce from annulment of marriage and sentence divorce by court decision.
Article 6 (Amendments of the civil law and so on)
① Article 819 of the civil law should be made invalid.
② In articles 820 and 821 of the civil law, stated “one who carries out parental authority” should be taken as “custody parent”.
Article 7 (Application dating back to the past) This law should be applied dating back up to the day preceding January first, 1989. Furthermore, the enforcement date of this law referred to in article 4 means the real date, and this article 7 and the article 4 should be applied both in harmony.
February 8th, 2011
former judge Masanori Watanabe