Problems with parent-child interaction procedures currently under consideration in Japan (English version)
This article introduces comments received from Dr. Ken Lewis, a prominent American custody evaluator, in response to the "basis for compiling Draft Outline" presented by the Ministry of Justice to the Family Law Subcommittee of the Legislative Council.
Dr. Ken Lewis is profiled below.
Dr. Ken Lewis specializes in parental alienation and high conflict child custody cases. For the past 25 years, he has worked full-time in the area of child custody, and has been court-appointed guardian ad litem or custody evaluator in more than two dozen states and in Canada. Ken’s publications on child custody have appeared in Family Law Quarterly, The Judges’ Page, Child Welfare, and Children Today and has a book entitled The Five Stages of Child Custody. In the United States, Ken has been a frequent media guest on radio and television and has conducted workshops across the country, as well as presented internationally. Ken is a long-time member of the International Committee of the National Council of Juvenile and Family Court Judges.
Flow of legislation
Purpose of consultation (Summary of remarks by Minister of Justice Kamikawa)
In recent years, it has been pointed out that divorce between parents has a serious impact on the child's upbringing, such as non-payment of child support and disruption of parent-child interaction. In addition, the way children are raised is diversifying due to women's advancement in society and fathers' increasing involvement in childcare.
In light of these social conditions, we are at the stage of considering divorce and related systems from the perspective of protecting the best interests of the child.
This time, we will discuss a wide range of issues related to divorce, including the divorce system, minor adoption system, and property division system, with a focus on how children should be raised following their parents' divorce, from a Children First perspective. So, I have decided to consult the Legislative Council for specific consideration.
Course of events
Feb 15 2021 The Minister of Justice consulted the Legislative Council on the amendment of the family law system.
Mar 30 2021 The first meeting was held.
Nov 15 2022 At the 20th meeting, the "Interim Proposal on the Amendment of the Family Law System" was compiled.
Aug 25 2023 At the 30th meeting, opinions were exchanged on the ”basis for compiling a draft outline for the amendment of the family law system".
<Discussion at the Legislative Council>
Future plans
Nov 2023 The Ministry of Justice is expected to present a draft outline to the Legislative Council.
<Discussion at the Legislative Council>
Dec 2023 The Legislative Council is expected to submit a draft outline to the Minister of Justice.
<The Ministry of Justice is expected to draw up a bill to amendment the family law system.>
Jan 2024 The ruling party is expected to examine the amendment bill.
The government is expected to submit the amendment bill to the Diet.
Current legal procedures regarding parent-child interactions
⑴ If the residential parent prevents nonresidential parent-child interactions
If the residential parent prevents nonresidential parent-child interactions, it is common to file for “Parent-Child Interaction Mediation” in Japan.
The flow will be as follows. Even if you fill for mediation, you will not be able to see your child for more than three months.
In addition, the frequency of interaction is once a month, and the interaction time is generally several hours each time.
⑵ If your biological child is abducted
When a biological child is abducted, it is common to carry out three procedures at the same time: ⒜ designation of the child's custodial parent (mediation/hearing), ⒝ handover mediation, and ⒞ temporary restraining order before hearing.
⒜ Designation of the child's custodial parent: A procedure in which the parent of the kidnapping victim requests that he or she be designated as the person who should have custody of the child.
⒝ Child handover mediation: Procedure for requesting an order to hand over the child to the parent who has been designated as the custodian.
⒞ Temporary restraining before hearing: Procedure for requesting a provisional ruling before hearing to prevent imminent danger to the child.
⑶ If the residential parent does not comply with what the court has determined
If the residential parent does not comply with the court's order, there are measures such as a recommendation for performance and a request for payment of money, but there are virtually no penalties beyond that. Even in the procedure for changing custody, based on the “principle of continuity,'' which is convenient operational rule for courts, the residential parent will maintain custody if the parent is not causing any child-rearing problems.
Please note that I am a self-taught law student, so to ensure accuracy, please check with a lawyer who is familiar with Japan's family law system.
Proposals for Parent-Child Interaction Procedures in the “Interim Proposal”
(Nov 15 2022)
The following proposal was submitted for public comment.
⑴ Procedures on the parent-child Interaction at a stage prior to the conclusion of mediation or prior to a hearing
In a mediation case or a hearing case concerning custody such as parent-child Interaction, consider a mechanism to allow a nonresidential parent and a child to have parent-child Interaction at a stage prior to the conclusion of mediation or prior to a hearing.
⒜ In cases where there is no imminent danger, but parent-child Interaction should be allowed, etc., the family court may decide to implement parent-child Interaction on a provisional basis. At the same time, the family court may, at its discretion, make the cooperation of an Interaction support group, etc. a condition for the implementation of this provisional parent-child Interaction.
⒝ The family court shall establish a new procedure whereby, if certain requirements are met, the family court shall, in principle, make a decision to implement one or more Interaction between the nonresidential parent and the child within a certain period of time from the filing of the application for mediation or hearing, and have a family court investigator observe such Interaction, if necessary.
⑵ Procedures, etc. related to the effectiveness of established mediation or hearing
Measures to improve the effectiveness of mediation, adjudication, etc. regarding parent-child exchanges (including measures regarding enforcement procedures) will continue to be considered.
Proposals for Parent-Child Interaction Procedures in the “basis for compiling a draft outline”
（Aug 25 2023）
The “Procedures on the parent-child Interaction at a stage prior to the conclusion of mediation or prior to a hearing” and “Procedures, etc. related to the effectiveness of established mediation or hearing” that were proposed in the interim proposal have been deleted. And the path to resuming parent-child interactions as soon as the nonresidential parents filed for resuming was cut off. Furthermore, consideration has been given up on measures (sanctions) in the event that the residential parents do not carry out the agreed-upon interactions.
Instead, it appears to have been replaced by proposals that would be more advantageous to residential parents by delaying when nonresidential parents can resume contact with their children, adding conditions for resuming contact, and giving cohabiting them the power to veto court orders. In short, the proposal is based on the current situation.
The following is the text of “Trial implementation of parent-child interactions in court proceedings” as stated in the basis for compiling a draft outline.
⑴ In a hearing case for a disposition concerning the custody of a child, the family court may, when there are no circumstances that are found to be inappropriate in light of the physical or mental condition of the child, and when the family court finds it necessary for the investigation of facts, encourage the parties concerned to implement a trial implementation of nonresidential parent-child interaction.
⑵ The family court may, when it finds it necessary in promoting the trial implementation of the above ⑴, specify the date, time, place and method of the interaction and whether or not a family court investigator or other third party shall be present or otherwise involved, prohibit the parties from saying or doing anything that may have a harmful effect on the child, and impose other conditions it deems appropriate.
⑶ The family court may have a family court investigator investigate the status of the trial implementation of the above ⑴ or request the parties to report the results of the investigation (if said trial implementation was not carried out, explain the reasons thereof).
Problems and comments noted by Dr. Ken Lewis
Even if you fill for mediation, you will not be able to see your child for more than three months.
In addition, the frequency of interaction is once a month, and the interaction time is generally several hours each time.
Separating any parent from his/her child without due cause is a punishment for the child. The “once a month, several hours” principle is without a basis of “best interest in the child.” The principle is hardline, and may tend to create in the child a new and weaker bond with the separated parent than in the past.
If the residential parent does not comply with the court's order, there are measures such as a recommendation for performance and a request for payment of money, but there are virtually no penalties beyond that.
This would be a worthless consequence for noncompliance if the residential parent is wealthy. Financial punishment is often ineffective. Better would be an alteration of parenting time, a shortening.
“principle of continuity,''
In the USA, some family courts call this the “primary caretaker” principle…that custody should go to that parent who has done more of the childrearing before the divorce. Of course, that usually meant the mother.
The primary caretaker principle is the sole custody factor in only one State. It has been criticized from all sides of the child custody debate. Father’s rights groups have claimed that it is actually a maternal preference disguised as a gender neutral rule. Mother’s rights advocates claim that it sets a double standard for men and women. Finally, feminists argue that the presumption entrenches gender roles in society as related to the upbringing of children.
In a mediation case or a hearing case concerning custody such as parent-child Interaction, consider a mechanism to allow a nonresidential parent and a child to have parent-child Interaction at a stage prior to the conclusion of mediation or prior to a hearing.
The best policy would be allow the child the same or similar time periods of interaction with each parent as was the child’s experience in the child’s history.
family court investigator observe such Interaction, if necessary.
The family court investigator should be a trained social worker who, in addition to observation, should also conduct interviews and review relevant documents.
delaying when nonresidential parents can resume contact with their children
The very concept of “resuming contact with their children” implies the end of a period of punishment. This is adverse to child welfare policy. The breach of parent/child contact is usually a breach of an important child custody principle: DO NOT PUNISH THE CHILD FOR PARENTAL MISCONDUCT.
Questions for Dr. Ken Lewis and his answers
Question 1⑴: In the United States, if nonresidential parents file a
mediation to access their child, how many days after filing can they
access their child?
First point: In the US, there is no federal law on child custody; each State or jurisdiction controls the laws on child custody. For example, one State may make a law that a petition to change or modify custody cannot be filed shorter than two years after the previous order for custody. Other States have no such rule and a petition to modify can be filed at any time.
Second point: A nonresidential parent (we would say, a visitation parent) would be defined as already having an order for access. The only reason for the nonresidential parent to seek mediation (privately or through the court) would be to seek to alter the existing custody arrangement. If mediation is successful, the result might be a Consent Order filed in court.
Third point: All through the mediation process, parent-child contact would be maintained. The assumption in this question (how many days?) suggests that when mediation is filed, access terminates. This may be the way under Japanese law, but this would be intolerable in all US jurisdictions. The very idea of denying parent/child access, unless for child abuse, would simply be a contradiction of our primary directive: The Best Interests of the Child.
Question 1⑵: Is the number of days legally determined under the principle of custody? (For example, under the Hague Convention, a judgment must be issued within six weeks, but is there such a rule?)
In the US, there is no such legally determined number of days.
Question 2: If you have no choice but to choose a custodial parent,
what percentage of the decision criteria does "primary caretaker"
account for?
In only one State, the “primary caretaker” principle is presumptive. In other words, the judge begins with the presumption, and unless evidence defeats it, the presumption prevails for either parent. In many of the other States, the “primary caretaker” principle is merely one of many statutory custody factors to consider. Also, in other States (like New York) there are no statutory custody factors.
Regarding “the percentage of custody and the typical percentage that these contribute to the decision,” there are no national statistics. In the many cases where I was appointed as custody evaluator, the primary caretaker factor has rarely been determinative, unless the case involved an older child whose strong preference was supported by data that I was able to confirm.
Question 3: In Japan, there are still people who argue that "joint
custody after divorce is undesirable because conflicts between parents
are harmful to children." There is no concept of trying to reduce
conflict for the sake of the child. Certainly, I believe that there
are cases in which high conflict cannot be resolved, and in such
cases, what type of custody would be recommended in the United States?
Restated Question #3: In the US, what types of cases would support an Order for Joint Custody?
a) Definition of JC. Joint Custody is the legal authority to make major child-related decisions related to health, education, religion, welfare, etc. In most States, decisional authority is equally shared; but in some States, decisional authority can be distributed between the parents. For example, one parent has decisional authority on education, the other on religion, etc. Parenting time (visitation, access, etc.) would be determined by the evidence that supports the interests of the child. The primary consideration in the original literature on joint custody (1970’s) was whether or not the parents can maintain a minimal level of communication and cooperation that would benefit their child. Over the years, most jurisdictions lean in the direction of JC and focus mainly on how to distribute parenting time.
b) Custody Modification. Original custody was joint custody (JC) and now, a couple of years later, one parent files for C-mod wanting the parenting times to be modified. Unless one parent seeks to change the original JC to sole, JC would be maintained.
c) Original Custody (1). The parent filing a Petition for custody seeks JC and the Answer to the Petition also seeks JC. Unless the judge finds evidence to change from JC to Sole Custody, JC would remain. The trial would center on what parenting times would serve the child’s best interest.
d) Original Custody (2). Both parents seek Sole Custody. My evaluation produces evidence that the parents maintain specific hostilities between themselves, but continue to share decisions about their child as they did prior to litigating custody. I would recommend JC.
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