Kirsty KawanoOne year ago, when Justin Giffin won an emergency temporary custody order in divorce proceedings in the Kyoto Family Court, officials there confided in him that such a decision was so rare that they weren’t sure how to execute it, he says. Giffin prepared for the consequent immediate return of his two sons by installing bunk beds, but they are yet to be used. His divorce is a rare case of a legally acrimonious Japanese divorce, and as such is one that courts here are currently not fully equipped to handle. It’s a system that – even the Justice Minister agrees – doesn’t work in the best interests of the children, or their families.
While Giffin’s case is rare in some respects, it also illustrates common problems with Japan’s outdated legal framework for childrearing after the divorce or separation of parents. Chief among them is that Japanese law does not allow joint custody. On top of that, institutions are reluctant to become involved in family matters and determine and enforce sticking points between parents, particularly visitation rights. The law’s “principle of continuity” means that courts tend to leave children in the care of the same parent, even if that parent has ‘abducted’ the kids from their partner.
One man’s story of losing his sons
Giffin is English and has lived in Kyoto for about 30 years. Four years ago, problems started appearing in his marriage to a Japanese woman, mainly due to differences in childrearing, he says. In 2018, she filed for divorce and, a year later, took their sons with her to her mother’s place. That’s when Giffin filed for temporary custody, which entailed proving her incompetence as a mother and disproving her claims of harassment.
“I was awarded emergency temporary custody, which is very rarely granted and is usually only granted if the kids are in danger,” Giffin explains of his efforts to obtain custody of his boys. “In tennis terms, that was the first set, and I won every single point. But then, sadly, the second and third sets were in the High Court, and I lost those.”
Giffin’s wife filed an appeal to the Osaka High Court, where three judges decided to reverse the Family Court’s ruling. “The High Court thing is a very quick thing and there’s no court meeting with the parties involved or the lawyers. It’s just all done on paper. You make a submission and that’s it,” Giffin says.
He is dissatisfied with the ruling, particularly because the judges’ statement included errors in facts submitted at the Family Court level, and because the issue of competency as a parent appeared to not be considered by the High Court at all.
Japan’s single-parent custody system
According to Japan’s Ministry of Health, Labour and Welfare, about 210,000 couples divorced in 2019. Around 87% of them used the “divorce by consent” approach, in which couples agree to divorce and simply lodge some paperwork at their local City Hall to affect the change. Japan’s family register system lists married couples as part of the same household, but divorce splits them into separate registry listings, with their kids going to either one household or the other.
Japan has a tradition of single-parent custody. Under the patriarchal household system used before World War 2, a breakdown in a marriage saw the mother leave and the father keep the children. That law was officially changed in 1947. As Japan modernized and fathers worked hard to rebuild the nation post-war, mothers took care of the household and the children to the point where fathers generally lacked the time and skills to raise children. Consequently, it became the norm for custody to go to mothers.
Despite significant changes in demographics, (71.3% of women aged 15 to 64 were part of the labor force in 2018), that idea remains, and in 2018, mothers received custody in 84.5% of divorces, according to the welfare ministry. “Usually in Japan, the wife would get custody because the thinking is that the man is incapable of looking after the kids,” Giffin says. Even just considering the demanding working hours here, “if you’re a Japanese salaryman, you’ve got no chance.”
Although he proved his own cooking and cleaning abilities to the Family Court, the “mother is best” theory affected Giffin’s case. In deciding against him, the High Court described his younger son as “a mommy’s boy” who needed his mother. The decision was based on the younger son as he was at age six, even though the ruling came when he was eight.
“It took way too long for the courts to operate,” Giffin says. “It was 14 months from the start of the temporary custody petition to the verdict.”
“Enkiri,” the severing of a relationship
On top of the gender-based fault lines for custody is a cultural concept called “enkiri,” which is the severing of a relationship after divorce. Typically, even the children’s grandparents shun communication with their in-law once their son/daughter cuts the other parent off. This practice remains strong, and scholars say that, although perhaps unconsciously, it has dominated judicial reasoning and at times has even overshadowed concerns about the best interests of the child.
A prominent example of the custom of enkiri is the family of former prime minister Junichiro Koizumi, who divorced his wife in 1982. He took custody of their two sons, then aged one and four, while she kept their third, which was still in her womb. While he was the nation’s leader from 2001 to 2006, it was widely reported that he had no interest in meeting his third son, although he paid child support for him, and that he hadn’t allowed his former wife to meet her elder sons again, although she hoped all parties would meet.
When a crime is not illegal
Giffin says the Family Court judge described his wife’s taking away the kids as “highly illegal,” but that the High Court, in its decision, said it was not illegal, just bad.
Colin P.A. Jones, a professor at Doshisha University Law School, on a U.S. embassy website, discusses the issue of whether parental child abduction is a crime. Although there have been cases of Japanese and foreign parents being convicted for kidnapping their own children, ultimately, the application of the law is situational, he says. “Article 224 of the Japanese Penal Code describes the crime of “abduction of a minor” in very sparse terms: “[a] person who kidnaps a minor by force or enticement shall be punished by imprisonment with work for not less than 3 months but not more than 7 years.”
Jones interprets this to mean that “an abduction which disrupts public order (a father grabbing his children off the street) may be treated as a crime, while those which do not (a mother getting on a plane or a train with her children to go live with her parents, or merely refusing to return to the United States after a visit to Japan with the children) probably will not.” It is an example of Japan’s often pragmatic approach to decision-making.
Banking on mediation to settle differences
The first step for Giffin and his wife in sorting out their separation was mediation. This is the typical course in a system that wants the parties to determine their own settlement rather than have the courts do it. Court-appointed mediators – one man and one woman – sat in on the sessions. They did a very bad job, Giffin says.
His wife’s initial offer to him of a specified amount in child-support payments and seeing their kids once a week, Giffin now knows, was a good one. But for someone who was a very involved and active parent, it felt far from satisfactory, and he turned it down. His counteroffer was a lower monthly payment and 50-50 visitation with his sons.
“At that point, she simply said ‘no,’ and the mediators said ‘OK, we give up on this,’” Giffin recalls. With mediation considered to have broken down, she could then sue him for divorce.
“We’ve actually been doing mediation once every one or two months for the last three years about money and visitation, but it’s at a total stalemate, really. It’s basically meaningless. About the money, I have said, ‘I’m not seeing the kids, [so] I’m not paying any money.’” He is not worried that that will affect his sons, saying that his contribution just reduces the portion the government pays his wife in social welfare benefits, not the overall sum that she receives.
According to Giffin, his wife has said that she will not let him see their kids directly. That is part of the reason, he thinks, why she moved them to Okinawa – the farthest southern end of Japan.
To try to end the stalemate, the judge suggested to Giffin that he agree to the divorce and give his wife custody, he says. But copies of his sons’ school reports show poor attendance and performance, and his concern over their welfare prevents him from agreeing.
One of his key frustrations is the courts’ focus on mediation rather than on the children. “I think that, in the West, the social services would get involved much more if the kids are not going to school, and do something. But here, I tend to think that the institutions don’t like getting involved in family affairs.”
A lack of enforcement
This lack of involvement by authorities is a key piece of the heartbreaking experience of left-behind parents. It is also the reason why Giffin’s bunkbeds have yet to be used. Despite winning emergency temporary custody in the Kyoto Family Court, the order was never enforced.
“My wife ignored the temporary custody verdict,” Giffin says, “We then put in an enforcement order. She then ignored the enforcement order.”
Officers sent to collect children in these circumstances visit – but do not enter – the house, and simply ask that the children accompany them. “There aren’t mechanisms to enforce things in Japan,” Giffin says. He acknowledges that this would also apply to his refusal to keep paying child-support fees.
The trap of the principle of continuity
The lack of enforcement means left-behind parents have no real avenue for recourse. That, together with Japan’s principle of leaving the children in the custody of the parent who has them, has created a system of “win by abduction.” The hopelessness of the situation often leads to depression, anger, and sometimes even suicide, among left-behind parents.
One such angry parent is a former popular player of shogi, Japanese chess. Takamori Hashimoto recently started a YouTube channel in which he has been explaining his experience since coming home to find his wife and their four-month-old son gone and a note from her saying that she didn’t want to live with him anymore. He resigned from the shogi federation at the end of March this year because the repercussions of the abandonment have left him unable to concentrate well enough to play.
In an interview with the Daily Shincho newspaper, he described the courts’ prioritization of the principle of continuity as creating “win by abduction.”
“For a left-behind parent like me, even if I lodge a suit saying ‘I want my child returned to me,’ the court will reject it because it would have a bad effect on the child mentally and physically to change their environment now, and they don’t even approve visitation. This kind of judiciary convention is permitting ‘win by abduction,’” Hashimoto said.
Giffin says the same: “Here it’s very much not where’s best for the kids, but if there’s a reason why they shouldn’t be where they are now. As in, she took them away, is there any reason they shouldn’t be there now.”
The welfare of the child
Pressure groups trying to change Japan’s custody laws say there are many reasons why a child should not be cut off from a left-behind parent. As well as the rights of both parents to maintain a relationship with their child, the child also has a right to the same. Perhaps the most overwhelming reason is the welfare of the children. Studies show that the severing of a relationship with a parent can cause lasting psychological damage.
In November last year, a group of parents and children who have experienced separation due to divorce went to the Tokyo District Court seeking compensation for damages, claiming that the inadequacy of legal provisions to carry out visitations is unconstitutional because it infringes on basic human rights. Among the group are three young adults who were taken away from one parent by the other, when they were children. A 20-year-old man whose mother took him and his younger brother far away from their father when he was around 11 years old says he suffers from heart-racing flashbacks to when his family was torn apart, and that both brothers have been diagnosed with post-traumatic stress disorder (PTSD).
The move to update child custody laws
In 1994, Japan ratified the U.N. Convention on the Rights of the Child. It says that signature states will respect the right of children separated from a parent to maintain personal relations and direct contact with both parents on a regular basis. And that, “In all actions concerning children…the best interests of the child shall be a primary consideration.”
Justice Minister Yoko Kamikawa is now using “the best interests of the child” as her guide in seeking to update child custody laws. At her direction, in February, an advisory panel to the ministry began discussing revisions to the law concerning childrearing after divorce, including the pros and cons of introducing joint child custody. Local newspapers say that no deadline has been set for reaching conclusions.
When she ordered the establishment of the panel in January, she wrote on Twitter of her “own strong feelings” on the issue and hopes for “speedy discussion from the perspective of putting children first.” But Japan is known for its discussions being anything but speedy, and its leaders as being reluctant to enact change.
Creating rules for agreement on visitation and child-support fees
One of the first topics the panel will consider is legal amendments to prevent non-payment of child-support fees. Among single-mother households, only 24% received childcare payments from former spouses in 2016, according to a survey by the welfare ministry, and nearly half of single-parent households were in poverty. A Justice Ministry expert panel has recommended that the right to demand child support be written into the Civil Code, the Mainichi Shimbun reported.
Visitations rights are said to be another of the early topics the panel will discuss, as the ministry recognizes the connection between the lack of access to one’s children and a refusal to pay fees.
Shuhei Ninomiya, a law professor at Ritsumeikan University, says that the ease of the method of divorce by consent is one reason for the low child-support payments and visitation rates in Japan.
“In Japan, even without discussing or agreeing on the apportionment of visitation rights and child-support payments, one can get a divorce just by submitting a one-page document to city hall,” he told the Tokyo Shimbun newspaper. It’s an approach that differs from many countries, where court-determined divorces are the norm, and the courts confirm that such agreements are in place.
International pressure to change Japan’s custody system
Updating Japan’s child custody laws will take a lot of work to fill in the gaps in the current legal system. Changes will be closely watched from overseas, too, because many countries have been pressuring Japan to alter its domestic system to bring it in line with the nation’s obligations under the Hague Convention on international parental child abductions. Japan joined the treaty in 2014, following lengthy international criticism for being a safe haven for such abductions, and the pressure continues.
In July 2020, citing a rising number of child abduction cases where one parent is an EU national and the other Japanese, the European Parliament passed a resolution that calls on the Japanese authorities to enforce international rules on child protection and to change their legal system to allow for shared custody.
Such external pressure on Japan is often key in starting the ball rolling toward change. But the government’s general inertia and that of the tradition of enkiri will make progress very slow. On top of that, there is little public awareness of the issue.
In June last year, the New Parent-Child Relations Promotion Organization released a survey that showed that 58% of the public was not familiar with the idea of parental abductions. That’s a high figure considering that all parents can potentially be affected by it. However, 55% said they disagreed with the practice and 67% said moves toward joint custody were good for the welfare of the children. So support for reform exists.
Various advocacy groups are working to raise public awareness of the problem and Hashimoto says he is willing to enter politics in order to affect change. Meanwhile, children are growing up without key people in their lives.
Since the vast majority of Japanese divorces are processed amicably, a lot could be done to protect children by adding a requirement for divorcing parents to write down their agreements on visitation rights and child-support payments on the document they submit for processing at city hall. That would help raise awareness of these issues and perhaps speed up changes to update Japan’s child custody laws.
