In Japan, child custody is almost equivalent to parental authority, and only one parent is granted parental authority following a divorce.
Parental authority includes various parental rights. Article 820 of the Civil Code provides that “a person who exercises parental authority holds the right, and bears the duty, to care for and educate the child.”
In determining which parent will be granted parental authority, “the interest of the child” is paramount. All relevant circumstances are taken into account, but the following factors are given particular weight:
(1) The stability of the child’s custody
The parent currently raising the child tends to be given priority in being granted custody. However, when the child becomes older, the opinion of the child as to which parent should have parental authority is given greater weight.
(2) The child’s opinion
The Family Court must take into account the opinion of a child over the age of fourteen. In some cases, the Court will seek the opinion of a child over ten, or so.
Allowing the child to visit the non-custodial parent, or allowing the child and the non-custodial parent to spend time with each other or engage in other forms of direct or indirect contact, is known as “visitation rights”.
Whether visitation is allowed or not depends on the facts of the case. The following general criteria are taken into account:
Criteria relating to the circumstances of the child
(1) The child’s emotional state and physical condition
(2) The child’s age
(3) The child’s opinions and feelings
(4) The effect of visitation on the exercise of parental authority
Criteria relating to the circumstances of the parents
(1) Violence by the non-custodial parent
(2) Interference by the non-custodial parent with the educational policies of the parent with parental authority
(3) The domestic situation of a parent with parental authority who remarries
When a protection order has been issued in relation to domestic violence, the Family Court will not, in principle, allow visitation.