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Though it may come as no surprise to many that attitudes toward divorce in the U.S. have been drastically altered since the past decade, surprisingly this is occurring on a more massive and global scale than before, particularly in Japan (West, 2011, p. 176). Much of the Japan’s divorce process is more unrefined when compared with places like the United States (McCauley, 2011, p.
590). In a sense, Japan’s divorce process has been argued to create issues when it comes to child custody (McCauley, 2011, p. 590). Thus, the important sections to examine are the following: the process of divorce in Japan and its effects on the family in relation to Child Custody Laws and visitation rights.
Japan has four different types of divorces that can occur with each being a little bit more intricate than the other (“Getting Divorced in Japan”, 2018; McCauley, 2011, p. 590; West, 2011, p. 180). The direct translations differ from Japanese to English, but West (2011), names three of the types of divorce in Japan as the following: negotiation, mediation, and adjudication.
The equivalents in Japanese have following progression: kyōgi rikon (Negotiated or Consensual Divorce), chōtei rikon (Mediated Divorce), shimpan or shinban rikon (family court adjudication), and saiban rikon (divorce ordered by court) (“Getting Divorced in Japan”, 2018; McCauley, 2011, p. 590; West, 2011, p. 180).
A brief description of each type of divorce is essential to provide background information about the effects these have on Child Custody cases in Japan. The first and most common method of divorce is through Negotiation or Consensual Divorce (kyōgi rikon), which is when the two parties work through an agreement together with no state involvement occurring (Matsuno; McCauly, 2011, p.
590; West, 2011, p. 180). It has the highest rate of divorce of the three types listed above having a staggering 90% rate of divorce (McCauley, 2011, p. 590; West, 2011, p. 180). Couples are required to fill out a divorce registration form which is stamped by each party and two witnesses before turning it into a legal office, and it is essential to mention that the state has no role in this process at all, not even when it comes to making decisions (West, 2011, p. 180). The government plays a role in negotiation divorce strictly for record keeping purposes (West, 2011, p. 180). Thus, the couple ends up making decisions on their own regarding all the conditions of their divorce without any guidance from anyone else, which may have detrimentally affected any children that the couple had prior to getting a divorce (McCauley, 2011, p. 590).
Mediated divorce is formed under Japan’s Civil Code and Civil Procedures Law and could potentially be dealt with in accordance to “personal status litigation (Jinji Sosho) and any other disputes related to families” (Matsuno). Some examples of personal status litigations were listed by Matsuno (n.d.), and they included the following examples: “Marriage invalidation, marriage cancellation, divorce invalidation; cancellation, recognition of life or death as related to marriage, invalidation and cancellation of adoption of a child, disputes regarding presence of or absence of parent-child relation”. Any other reasons include: “Marriage expenses division, parental rights and care of the children at the time of divorce (including child support expenses), property division at time of divorce, determination of parental rights at the time of divorce, and modification of parental rights” (Matsuno). There are three mediators that work on these cases, which typically includes a judge, two laypersons (usually a teacher or someone who has a set of wisdom that may be beneficial towards the case), and one man and woman (Matsuno; West, 2011, p. 180). However, there is not always a family judge available to sit on the panel because they tend to have a lot of cases dealing with mediation, thus they will not be able to be involved in each mediation case (Matsuno). Therefore, the case will be heard mostly by two mediators, who will work to try and resolve the issues and reach agreement between the parties (Matsuno). During mediation, three mediators generally are trying to prevent the divorce from going through, especially if it means that the parties have children (West, 2011, p. 180).
Mediation results have as much validity as a court’s decision has, and once this mediation agreement and process are both completed, and it is especially important to point out that the final document that is established is just as effective as a final court decision would be (Matsuno). Many of the decisions that most of the responsibility still falls on the parties themselves to make the decisions (McCauley, 2011, p. 590). Having an attorney during the mediation process can help by providing more of an opportunity to go over child support, property division, as opposed to the negotiation divorce in which none of these things are discussed in court (Matsuno; West, 2011, p. 180).
When mediation does not solve all the issues that come with divorce, couples can submit an application to get a shimpan rikon, or an adjudication divorce. This type of divorce requires that the parties have reached an agreement regarding the mediation process, and it requires this agreement before the submission is sent to the family court (Matsuno; West, 2011, p. 180). However, the reasons for this divorce is mostly related to any of the following: modification of parental rights, child support or marital expenses during the course of the marriage (Matsuno). This process essentially means that the judge will choose topics regarding the family depending on the following: their review of documents that are filed by the parties and on the results of an investigation conducted by the family court (Matsuno). Matsuno (n.d.) states that: “There are almost no cases in which the court decides on the divorce itself by adjudication. A lawsuit for a court order is used for divorce” (Matsuno).
The final type of divorce is called Saiban Rikon, which has an indirect translation of divorce by family court decision (“Getting Divorced in Japan”, 2018; Matsuno; McCauly, 2011, p. 590). For a divorce to go to trial, the parties need to try to find an agreement through the mediation type of divorce, and this is called “mediation-first principle” (Matsuno). A reason for divorce is required, which is unlike any of the other previous forms of divorce that have been discussed thus far (Matsuno). Article 770, Section 1 of the Civil Code of Japan determines which divorce cases by trial are possible in relation to the reasons for divorce which may range from any of the following reasons: “Infidelity, malicious abandonment, whereabouts unknown for three years or more, serious mental illness, or another serious reason that the marriage should not be continued” (Matsuno). If all means of divorce proceedings have already been attempted and no resolution has been made for the remaining issues, the court would normally find that the marriage should not be terminated, and the court has the power not to grant a divorce, despite any of the circumstances that were provided (Matsuno). On the other hand, there has never been a case on record that has prohibited someone from getting a divorce in Japan (Matsuno).
Now that the background information has been delved about the process of divorce in Japan, the relation to child custody can be further added to provide a more massive representation about how divorce really affects the family. McCauley (2011) asserts that the “Japanese family law system, … fails to consistently make decisions that protect the welfare of children, respect the rights of parents, and facilitate healthy interaction between parents and children following divorce” (p. 590). A lot of the issues come from the kyōgi rikon (Negotiation Divorce) which was mentioned earlier on (McCauley, 2011, p. 590). It is imperative to look at the percentage of negotiation divorces, and as mentioned earlier, there is a 90% rate of negotiation divorces (West, 2011, p. 180).
There is very limited amount of visitation allowed in Japan once child custody is awarded, and usually this is awarded to the mother (McCauley, 2011, p. ** ). McCauley (2011) discusses the current Japanese custody system which states that the Japanese Family Law has been very consistent since 1959 because it does not “recognize visitation as a right for the noncustodial parent and requires divorcing parents to decide which parent will exercise sole custody over each child” (p. 591). Additionally, Tanase (2011) uses an example from a 2008 Indiana “Parenting Time Guidelines” which discusses that during the after math of divorce, it is in the child’s best interest to have “frequent, meaningful, and continuing contact with each parent” (Tanase & McCauley, 2011, p. 566). Tanase (2011) went on to talk about the rest of the guidelines which stated that there were eight guidelines which were important, but two of them in particular had the greatest importance: “1) Making sure that the child knows that the parents’ decision to live apart is not the child’s fault 2) Allowing children to develop and maintain an independent relationship with each parent and to have continuing care and guidance from each parent” (Tanase & McCauley, 2011, p. 566). This was clearly a cross-cultural contrast between Japan and America opinions on the importance of visitation.
The points listed above are not reflected in the current and withstanding rules and procedures that occur in Japanese society (Tanase & McCauley, 2011, p. 569). Japan has a provision that limits custody to only one party because of Article 819 (Tanase & McCauley, 2011, p. 568). There is another article that Tanase (2011) mentions which is Article 766 which is, according to him, “an extremely comprehensive provision, providing nothing yet prohibiting nothing”, and so he proposed a question as to why Japan will not just create a joint-custody system, and he mentioned that visitation from the non-custodial parent is limited if the custodial parent can be prove that they are “providing a stable home environment” (Tanase & McCauley, 2011, p. 568).
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