Panel’s interim draft on divorce law contemplates joint custody

The Yomiuri Shimbun

2:00 JST, November 17, 2022

The introduction of joint custody for divorced parents in Japan is one of two proposals included in an interim draft compiled Tuesday by a study group of the Legislative Council, an advisory body to the justice minister.

The draft by the group, which has been discussing the ideal form of custody of minor children after a divorce, also includes a proposal to maintain the Civil Code’s current rule of sole custody, in which just one party retains parental rights.

In December, the Legislative Council will open an approximately two-month period for public comments. The council aims to settle on an early proposal in light of public opinion.

The current Civil Code stipulates that married parents have shared custody over their children, but after divorce, only one parent will exercise parental rights.

This sole custody rule is said to be the cause of fierce parental custody disputes at the time of divorce and situations such as parental abduction.

In many Western countries, joint custody is the norm.

On the other hand, some support sole custody for such reasons as fear of continued domestic violence and child abuse even after divorce in certain cases.

The interim draft presents two proposals for the introduction of joint custody: joint custody in principle, with sole custody recognized as an exception subject to agreement between the parents; and sole custody in principle, with joint custody permitted as an exception.

There is also reference to the idea is of allowing flexible decisions based on individual cases, without pre-establishing either principles or exceptions.

For cases of joint custody, the draft puts forward two ideas regarding who will be the “custodian” to take care of the child. One idea is to designate one of the parents. The other idea is to decide through discussion whether or not to designate just one.

It also proposed extending the post-divorce period during which claims for distribution of property can be made from the current two years to either three years or five years.

The interim draft was originally scheduled to be compiled in August, but was postponed due to opposition from within the ruling Liberal Democratic Party, which asserted that the contents regarding joint custody were “hard to understand.”