Every Child

Has Two Parents

 
 

Types of Child Custody in Japan: Shinken and Kangoken

 

The word most often used with the meaning of "child custody" in Japan is "shinken".  The word consists of the characters for “Parent” and “Right” However, the real meaning of “shinken” in Japanese is not “Parent’s rights” but is legally more similar to “Parent’s duty”.  So shinken means a duty (or obligation) for the parent in order to bring up child in proper environment and protect him/her.

Married couples share shinken jointly.  But outside of marriage, Japanese law does not permit joint shinken.  Only one parent may hold shinken.  A common reason given to justify the prohibition of joint custody of a child is that the belief that that divorced parents are not able to cooperate in executing their duty in harmonious way.  Not all Japanese believe this, in particular the ones who each year try to obtain joint custody.  But this concept is enshrined in the law.

So in the case of a divorce, the couple must decide who gets it, or a court must decide.  In cases of a child born out of wedlock, the mother automatically gets shinken, without any negotiation and without approval by a court.  It is also possible to assign shinken to grandparents or other relatives.

When Shinken and Kangoken are Separated

But there is another type of custody called kangoken, which can loosely be translated as "physical custody".  Actually, kangoken is simply one role that can be separated from shinken, and held by a different parent or by another person.   But this is not the same thing as joint custody.   In this case, kangoken is the duty to live with the child and take care of the child, providing proper education in everyday life.  Shinken then becomes, what could be translated as "legal custody", although it is not exactly the same as legal custody in western law. (Also the meaning of these terms in English will also vary from country to country, so it is best not to attach too much meaning to the English terms.) In particular, in this case, shinken apparently does not include visitation rights or even the right to know where one’s child is living or going to school.  But shinken is recorded in the family register, and so it is provable and it is required for certain legal events, such as applying for a passport.  Approval of the person with shinken is also required for adoption.

Shinken

Kangoken

Responsibility to manage assets.

Responsibility to physically care for the child.

Child's representative for legal problems.

Responsibility for daily living and education.


For example, the mother could have kangoken and would live with the child on a day to day basis.  The father would then have shinken.  But in order to proceed any other legal matter, for example change of child’s address, a school, transfer of the child’s assets, etc., the mother needs to get a permission of the father.  Note that these roles could be reversed.  The mother could have shinken and the father could have kangoken, or even another relative or court appointed guardian could have one of these duties/rights.

One thing to note is that although you must go to court to change shinken, kangoken arrangements can be changed by the parents just by changing the child’s living arrangements.  See the Family Registration Law, Articles  78-79 which discuss the registration of changes in legal custody required in a divorce.

Danger of Not Having Either Shinken or Kangoken

A parent who loses both physical and legal custody in a divorce has virtually no rights whatsoever with respect to his or her own children. He or she may not know where his children live, and the custodial parent can change the child’s name and have the child adopted by either a grandparent or a new spouse without his consent. 

Adoptions usually require the involvement of the family court, except in cases where a child is adopted by a grandparents or spouse of a parent.  (Civil Code Article 798.) “Special Adoptions” involving children under the age of six (or eight, in certain cases) require the involvement of the family court and the consent of the natural parent of the child being adopted, unless the natural parent is “unable to declare [his or her] intention or where there is cruel treatment, malicious desertion by the father and mother, or any other cause seriously harmful to the benefits of a person to be adopted."  (Civil Code,  Article 817-5, 6)  Since a non-custodial parent does not even have a right to know where his or her child is, he or she would be unable to express their intentions.

Applying for Shinken or Kangoken

TBD

How To Change Shinken or Kangoken

TBD

References

  1. http://www.fukazawa-office.com/rshinken.htm

  2. http://www.rinku.zaq.ne.jp/bkaqx509/sinken.html

  3. http://www.geocities.jp/chouwanokai/kodomonosinnken.html

The information on this website concerns a matter of public interest, and is provided for educational and informational purposes only in order to raise public awareness of issues concerning left-behind parents. Unless otherwise indicated, the writers and translators of this website are not lawyers nor professional translators, so be sure to confirm anything important with your own lawyer.




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