Parental Authority under Japanese law
When you have a child or children under age with your divorcing spouse, you must determine which parent will have parental rights over the children, even if you get divorced by agreement by submitting a form with a local municipal office. (About divorce by agreement, see this article.) This is because, in Japan basically, one of the parents, not both, shall hold parental rights after divorce (sole parental authority). Though you can have de facto joint parental rights or joint custody if you can agree on it with your divorcing spouse without using court.
Parental rights or parental authority in Japan is very broad, including physical custody, authority to order children where to live, authority to control children’s property or assets, and authority to be a statutory agent for children for their conducts of proprietary nature and certain conducts under family law. And this is left only to one parent. Thus, you should be careful about giving it up, especially when you sign a divorce form.
If divorcing parents can agree on it, you or your spouse can have physical custody only while leaving the rest of the parental authority to the other. This is rarely allowed under court decision.
With physical custody, you can order children where to live, you have rights and obligations to educate your children and you have the right to claim against the other to surrender the custody of your children.
One important thing to note is that when you apply for a passport for your children, you need signature of a parent with parental authority. This cannot be done by a parent with physical custody only.
When you go through mediation or lawsuit for divorce, the court will determine which parent should have parental authority. The main factors to be considered are as follows:
- Best interest of the child;
- Ability and willingness to have custody for the child;
- Whether the parent have taken care of the child until now;
- His or her character, mental and physical health;
- Emotional connection with the child;
- Whether the parent have committed domestic violence;
- Whether the parent brought the child away from the other “illegally”;
- Whether the parent will allow the other ‘s visitation willingly.
In Japan, in most cases, it’s the mother who takes parental authority unless she has very significant health issue or she has committed DV. This is because the second factor, “whether the parent have taken care of the child until now” is considered to be important and in such factor, who has been taking care of the child and who has been doing the housework make much account.
You can request the court to change parental authority holder when it is necessary to change for the interest of the child by mediation (conciliation) and adjudication but such a claim is difficult to be acknowledged.
Last but not least, even if you do not have parental authority, your parent-child relationship with your children maintains, which means you still have obligation to support in raising children and you and your children still have right of inheritance over each other. And you do have child visitation right. (For details, see this article.)