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Paper short abstract

Japan will allow parents to choose joint custody after divorce by May 2026. Under the current civil code, parents must choose one of the parents to become the sole custodial parent after divorce. Although the new legislation plans to provide a safeguard, it still leaves a concern for DV survivors.

Paper long abstract

The House of Councillors, the National Diet of Japan, approved the draft of the amended civil code that would allow parents to choose joint custody after divorce. The new act will come into effect by May 2026. Under the current civil code, in general, parents exercise joint custody only during their marriage and must choose one of the parents to become the sole custodial parent after divorce. This has been criticized especially by an organization supporting a so-called left behind parent who was forced to be alienated from their children after divorce. As a consequence, in a majority of divorce cases, mothers obtain sole custody over children. The new custody law emphasizes the best interests of children and considers that it is important for both of their parents to be involved in the children's lives and fulfill their responsibilities even after divorce. This idea is commonly shared in the U.S., and the Convention on the Rights of the Child urges the best interests of the child to be considered as a primary concern. However, Japan had reasons why it had maintained the sole custody system after divorce. One of the reasons is for survivors of domestic violence (DV). In fact, opponents of the amendment have already raised concerns for them that the new legislation will make it harder for the survivors to escape from their abusive relationships. To respond to the concern, the new legislation plans to provide a safeguard. If the family court finds that there is DV or child abuse, the court must award sole custody to survivors. However, this safeguard still leaves some concerns for certain survivors of DV. My paper aims to explore how the new legislation may impact certain survivors of DV. I also explore the impact on foreign-born survivors of DV in international divorce cases with the Hague Convention on the Civil Aspects of International Child Abduction, and articulate those potential issues that Japan may face soon. To conclude, it suggests how the issues can be culturally and appropriately ameliorated within the Japanese legal framework.