In Canada, the family courts start with the assumption that it’s in a child’s best interests to have as much contact as possible with both parents following a divorce or separation. In my experience, shared custody orders - where the child spends more than 40% of the time in the care of each parent - are increasingly common.
According to The Washington Post, things are very different in Japan, where divorced parents often find themselves with little or no contact with their children:
Japan is unusual among developed nations in not recognizing the concept of joint custody. Its custom of granting sole custody to one parent means hundreds of thousands of mothers and fathers face potential barriers to see their children, and children are being denied the right to see both of their parents as they grow up, lawyers say.
[…]
Japanese courts operate on what’s known as the “continuity principle,” almost always granting sole custody to whoever has physical control of the children when the case comes before them.
That reflects Japan’s now-abolished family system that saw children as “possessions” of households and the prevailing idea that courts shouldn’t disturb those households. It is also an idea Japan’s conservative establishment still clings to.
What that means in practice is parents seeking custody of their children only need to abscond with the kids to a new location and deny the other parent access. Courts almost always reward the “kidnapper” by granting him or her sole custody.
Courts in Japan lack the specific legal right to enforce visitation rights, meaning it is effectively up to the custodial parent’s discretion whether the other parent gets even occasional access or news.
The issue has long been associated in the media and public mind with foreign fathers, who have been protesting for years after their Japanese wives absconded with their children and denied the rights to see their children.
That includes several fathers here in Canada. Fortunately, lawmakers, lawyers and parents inside and outside Japan are pressuring the Japanese government to overhaul its rules:
…a combination of international pressure and legal effort in Japan could bring a reexamination of Japan’s custody laws.
Tomoshi Sakka, a lawyer who has handled rights cases, said there is growing public awareness that children have fundamental rights of their own to see both parents.
“The law tends to see the issues in terms of parents but not of children’s fundamental rights,” he said.
Sakka has filed three “intertwined” cases to court, arguing that parents have a fundamental human right under Japan’s constitution to see their children, that the lack of a law preventing parents leaving with their children is an unconstitutional violation of children’s rights and that courts should enforce parental visitation rights.
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Challenges also are brewing outside Japan. A campaign by one French and one Italian father have also brought significant pressure on Japan to review its laws.
Vincent Fichot and Tommaso Perina’s lobbying led the European Union to take action. Twenty-six E.U. ambassadors wrote a joint letter in 2018 arguing that children should have the right to see both parents, citing the United Nations Convention on the Rights of the Child. That message was forcefully underlined with a resolution of the European Parliament in July.
Now European parliamentarians are pressing the E.U. to link its 2019 trade deal with Japan with the issue under a parallel agreement that commits both sides to respect international human rights treaties.
Here’s hoping they succeed. Child custody cases where the parents live in different provinces of Canada, or where one parent is in Canada and one is in the United States, are challenging enough. I hope I’ll never have to work on a case where the child is in Japan, though the lawyer’s frustration would be nothing compared to that of the parent.