Every Child

Has Two Parents

 
 

Japanese court orders for visitation are not enforceable

 

If the non-custodial parent can get a Japanese court to grant visitation rights, its typically only a couple hours a month. But even then, if the custodial parent is not cooperative, visitation rights are not enforceable in Japan. Japanese courts do not have contempt powers nor marshals empowered to physically enforce custody or visitation orders.  Japanese police will also not typically enforce non-criminal court orders.  So even after court orders for visitation are issued, they cannot be enforced.  The only option is to go back to court again and again.

Because of the emotional and adversarial nature of divorce, custody and visitation disputes, the parent with physical control of a child will often actively oppose a court order. Japanese courts do not have contempt powers nor marshals empowered to physically enforce visitation orders, and Japanese police will not typically enforce non-criminal court orders.  So even if court orders for visitation are issued, they cannot be enforced.  The parent with physical control of a child is usually successful in denying access.

The United States State Department backs this up, with the following statement on its web page titled, "International Parental Abduction - Japan" (cached copy).

"However, compliance with Family Court rulings is essentially voluntary, which renders any ruling unenforceable unless both parents agree."

Japanese courts thus sometimes use other options available to them, such as the per diem penalty used in Shizuoka District Court case H10 (WA) #548 (ID #00100337) on December 21, Heisei 11 (Japanese original). Ostensibly, the goal is to ensure that the retaining parent changes their behavior. But if per diem penalties are not set high enough, as may be the case so that they do not prevent the parent from providing necessities for themselves and the child, they may be viewed simply as an unavoidable but bearable cost necessary in order to continue restricting access to the child.  Thus, as in this case, the estranged parent may receive monetary payments, but still never get to see their child.  In other cases, a Japanese parent may simply hide their assets by transferring them to relatives or changing banks.  The former strategy may allow the retaining parent to avoid monetary penalties altogether by declaring bankruptcy. The later may make it impossible to collect the judgment, since like enforcement, courts have little power to investigate personal financial details and unless debts are massive, are generally reticent to declare personal bankruptcies.  (This media story gives one prominent example of someone who has avoided multiple court decisions and fines for many years.)

Documented Cases

  1. "...the Osaka Family Court rendered a mandatory visitation schedule: since I was the custodial father, I am entitled to see my son once a year for 3 hours." Samuel Lui's custody of his son was affirmed by the Supreme Court of Japan, yet the Japanese legal system was not able to physically remove his son from his ex-wife.   Read more...

  2. Shizuoka District Court case H10 (WA) #548 (ID #00100337) on December 21, Heisei 11 (Japanese original).   A father was able to win a 5 million yen judgment against his former wife for emotional distress over her refusal to allow him visitation with their son. This case makes two points.  First this shows that judges will indeed issue monetary fines that could be used to pressure a spouses into allowing visitation. Second it is a prototypical example of the ineffectiveness of the Japanese courts at enforcing visitation, since in the end, we have been told by a non-official source, the father was paid the money, yet has not been able to see his son.  Reportedly, this was payable over a stretch of 20 years in monthly installments, so the real burden on the mother was small, and likely viewed simply as an unavoidable but bearable cost necessary in order to continue restricting access to the child.

Solutions We Want To See

  1. Courts must be given effective tools to enforce judgments of visitation and custody.  These could include the ability to jail a custodial parent on charges of contempt, court marshals, or the ability to compel Japanese police to act on their behalf.

  2. Courts should keep in mind that the goal of monetary fines is to ensure that the retaining parent changes their behavior. Therefore per diem penalties must be set high enough so that they are not viewed simply as an unavoidable but bearable cost necessary in order to continue retaining or restricting access to the child.

  3. Courts must be given effective tools to investigate the financial assets of parents who have been fined.

  4. Enact national laws that criminalize denial of visitation, interference with custody, and concealment of children from a natural parent.  These national laws must require government agencies to assist a natural parent in finding his or her child.

  5. Amend the Law for the Prevention of Child Abuse to establish within the national framework, that denial of a child’s access to a parent constitutes a form of child abuse.

Articles

  1. Operator of notorious bulletin board lost in cyber space; AERA (translated from Japanese and published by Mainichi Daily News); October 10, 2006.  Although not related to family law, this article is about Hiroyuki Nishimura, the 29-year-old webmaster of Ni-Chaneru who has lost numerous lawsuits and been order to pay 10's of millions of yen. By ignoring court orders and hiding financial information, he illustrates clearly how difficult it is to enforce any civil court ruling in Japan even a monetary one.  You can just refuse to pay and it's rare for a creditor to be able to convince a court to declare individual bankrupt in order to be able to appoint a receiver to look into someone's financial affairs.  (cached copy)

  2. Child custody in Japan isn't based on rules; San Francisco Chronicle; August 27, 2006.  A law professor discusses why institutional reasons rather than cultural ones are to blame for bad family law in Japan.  Much of Japan's family law is based on the need to cover up the fact that Japanese courts are powerless to enforce their own decisions.  It contains an example of culturally biased opinions regarding visitation made by a prominent "family expert" in a book on visitation, as well as descriptions of apparently mainstream anti-visitation opinions expressed by family court mediators.  Both of these, until now, were only available in Japanese. (cached copy)

  3. Parents' rights a demographic issue; The Japan Times; July 18, 2006; Law professor from Doshisha University in Kyoto postulates that prejudices against men in the family law and courts might be effecting Japan's plummeting birth rate. (cached copy)

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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