Comparing Japanese and American Approaches to Parental Rights:

Proceedings from the 2005 Sho Sato Conference
in Honor of Takao Tanase

Comparing Japanese and American
Approaches to Parental Rights:

A Comment on, and Appreciation of,
the Work of Takao Tanase

Ira Mark Ellman
Arizona State University
All rights reserved by the author.

This paper was presented at a Sho Sato Conference held on February 12-13, 2005 at Boalt Hall School of
Law, University of California, Berkeley.
Proceedings from the 2005 Sho Sato Conference in Honor of Takao Tanase
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Comparing Japanese and American
Approaches to Parental Rights:

A Comment on, and Appreciation of,
the Work of Takao Tanase
Ira Mark Ellman1

I must thank Professor Scheiber for inviting me to participate in this panel.
I am neither a comparative law scholar nor a scholar of Japanese law, but his
invitation, and my resulting study of Professor Tanase’s work, has caused me to
wonder whether it is not too late to retool. The chapter of Professor Tanase’s
book on which I’ve been asked to comment offers a comparative examination of
the Japanese and American law on parental visitation after divorce.2 It is a very
rich essay, and I cannot do it justice in the brief time I have to comment upon it. I
do hope to provide some sense of why it is so interesting.

Professor Tanase describes an important Japanese family law case with a
disposition that would surprise most American family law specialists.3 A year
after they married the parties had a son, and a year after that the husband became
involved with another woman. When the boy was six, the parents were divorced
by mutual consent. The terms of the divorce agreement gave the husband primary
custody of their son, allowing the wife, “upon request,” to visit him “no more
than” eight times a month, with the right “during holidays” to have him stay at her
home for “no more than” five consecutive days. To an American ear, these terms
sound strange. Decrees granting primary custody to fathers are apparently far
more common in Japan than in the United States. But paternal custody, though
still relatively unusual here, is hardly strange. What does seem strange is that the
Japanese decree does not promise the mother any time with her son. It rather tells
1 Professor of Law and Willard Pedrick Distinguished Research Scholar, Arizona State University.
2 The chapter was originally published as “Post-Divorce Child Visitations and Parental Rights:
Insights from Comparative Legal Cultures,” Hanrei Taimuzu 712 (1990), 4-19; Hanrei Taimuzu
713 (1990), 4-15; reprinted in The Discourse of Rights, A Communitarian Perspective (Tokyo,
2002), chapter 5. Panel members were provided with translations of the original work that
include some revisions Professor Tanase has made to reflect developments since the original was
published in 1990.

3 The case [37(5) Kagetsu 5] was decided in 1984 and is apparently the sole Supreme Court
authority on these issues, and still the prevailing rule.

us what she is not allowed: she is not allowed to see him more than eight times a
month, and she is not allowed to have him overnight, during the holidays, for
more than five days. So while she knows the most she can hope for, hope is all
the decree gives her. It does not entitle her to anything.
Now an American family law expert might have two reactions to the
decree I have described. He might first suspect there are unrevealed additional
facts in the case that explain the decree. Perhaps the mother suffers from some
condition raising questions about her suitability. Or second, he might wonder
whether the Japanese legal system is particularly inhospitable to women. Both
these musings would arise, in important part, from the decree’s limitations upon
the mother’s access to her son. In the United States, visitation is regarded as an
entitlement, which any divorced parent must be accorded in all but very unusual
cases.4

On the other hand, the amateur but alert comparativist might suspect this
is a case of a distinction without a difference. After all, sometimes when the
formal law, as stated in authoritative sources, differs between countries, the law as
actually applied is nonetheless quite similar. Perhaps that is the case here as well.
We soon learn, however, that in this case the difference is very real. A year after
the divorce, the custodial father in our story remarries – his new wife is the
woman with whom he had the affair. Their new household has three children –
his son, her child by a prior marriage, and a new child they have together – a
“blended family” in current American lingo. The blending is completed when the
new wife adopts the first wife’s son. But here’s the surprise: No notice of the
adoption is given to the first wife – I’ll call her mother – because none is required
in Japanese law. As soon as she learns about it, she tries to reclaim primary
custody of her son, but is turned down by the Japanese courts. Indeed, the court
concluded that as the son had adjusted well to his new family, it would be best, all
things considered, to order that the mother “not be allowed to visit her son at the
present time.”

As Professor Tanase points out, this result is quite inconsistent with
American notions of parental rights. Both our state child welfare laws, and our
Constitutional principles, generally bar judicial decrees that deny a fit parent any
right to see her child.5 Even if one could imagine circumstances that offer an
4 For a description of the general view of American law that visitation is the norm, to be denied
only in exceptional cases, see Ira Mark Ellman, Paul M. Kurtz, Elizabeth S. Scott, Lois Weithorn,
and Brian Bix, Family Law: Cases, Text, Problems (4th edition, New York, 2004), 619-20.
5 The constitutional principle protecting parental access to their children is expressed in a variety
of Supreme Court opinions. Examples include the cases protecting the paternal rights of unwed
fathers, discussed id. at 981 et. seq.; cases protecting parental autonomy from state regulation of
decisions about child rearing, discussed id. at 1077 et. seq.; and cases concerning the termination
of parental rights, discussed id. at 1189-1190.

exception to that general rule, the mere fact that a judge believes parental visits
might disrupt a relationship between the child and a third party would not be
among them, even if the judge thinks the child would benefit from nurturing that
relationship. The same principles bar American courts from allowing the
adoption of a child without the consent of a fit parent, much less without parental
notice. The amateur comparativist might guess that the contrary Japanese rule is
merely one example of a more general Japanese resistance to rights-based rules.
Professor Tanase makes most of these observations in this very rich chapter, but
he also uses this case to make some larger points about the difference between
Japanese and American law.
He observes that American and Japanese legal rules that are similar in
their language differ in application because the rules are understood through very
different cultural lenses. In the very case we have just discussed, the Japanese
court says that “naturally, biological parents should be entitled to see their own
child.” But because Japan has no cultural norm of parental rights, this
“entitlement” does not carry the same weight in Japan that it does here. In Japan
that “entitlement” is easily counterbalanced by other considerations. Professor
Tanase also suggests that the American view of parental rights serves divorcing
families as an instrument of family preservation, because it keeps the noncustodial
parent a part of the family. It does this by insisting that post-divorce
arrangements accommodate both parents, not only the primary custodian, which
in most cases leads to cooperation between the parents in maintaining the child’s
relationship with both of them. In other words, Professor Tanase suggests that the
stronger American view of parental rights in fact furthers children’s interests, in
contrast with the weaker Japanese view.
This picture of a dominant ethic of cooperation in American divorce may
seem at odds with the picture often painted in American writings and the
American media, but it is probably accurate in most cases. And so the message
may be that while eliminating parental rights might avoid conflict, it is also likely
to jeopardize children’s interests as well as parental interests. Rights, in other
words, may yield the cooperative relationship we think serves children, rather
than the conflict we worry will put them at risk. This view, that parental rights
and children’s interests are not necessarily opposing considerations, is in fact a
familiar take among some American commentators as well as the courts. An
American court would almost certainly reject the result of this Japanese case, and
in doing so would likely rely upon the language of parental rights. But it might
well buttress its conclusion by asserting that the child’s interests are also
vindicated by protecting the mother’s access to him. As rights-oriented as we
may think Americans are, we are also not entirely comfortable with the idea of
pure parental rights unconnected to children’s interests. That is why the Japanese
rejection of American-style parental rights is not the only important difference
Proceedings from the 2005 Sho Sato Conference in Honor of Takao Tanase
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between the Japanese and American approaches. A second important difference
is the apparent ease with which the Japanese court concludes the child’s welfare
would be advanced by denying his fit mother all access to him.
Finally, let me suggest another way to characterize the differences
Professor Tanase describes between American and Japanese law. One can
distinguish, as does American constitutional law, between the rights that flow
from parental status, and the rules that identify the parent who holds those rights.
This might seem a spurious distinction; any law professor can generate examples
of how flexibility in one dimension could undermine bright lines in the other. Be
that as it may, the distinction is clearly established: the Constitution limits the
state’s power to overrule parental decisions, or terminate parental rights, through
both procedural requirements and substantive restrictions.6 At the same time, it
allows states considerable flexibility in defining parent, as explained in the wellknown
case of Michael H. The Court there sustained a California law barring
claims of legal paternity by the biological father of a child born to another man’s
wife, if husband and wife lived together. In cases to which it applied, the
California law conclusively identified the husband as the child’s legal father,
making evidence of biological paternity irrelevant. While many other states
would reach the same result as California in many of the cases to which the
California rule applies, most would not reach the same result in all the cases, and
some states would allow the biological father to challenge the husband’s paternity
in most or even all cases. Under Michael H., these varying policy choices are all
within the Constitutional prerogatives of state lawmakers. But whatever choice
they make on this question of identifying the child’s legal father, the paternal
rights of the man so identified are protected by the procedural and substantive
limits the Constitution imposes before states can compromise them. So under the
same facts, the Constitution would protect the paternal rights of the husband in
California, but of the biological father in Texas.7
` Now what is at issue in these varying state rules is a tension between
social and biological paternity. The California rule chooses the social paternity of
the mother’s husband over the biological paternity of her lover.8 This particular
6 See Ellman et al., Family Law. For helpful commentary on this distinction, see Emily Buss,
“Parental Rights,” Virginia Law Review 88 (2002), 635.
7 A handful of state supreme courts have held that the biological father has a state constitutional
right to assert his paternity over the opposition of the mother and her husband, Texas and Iowa are
among them. To this author, the cases seem quite problematic. See Ellman et al., Family Law,
1032-33.
8 For a discussion of the choice between social and biological paternity, and varying state law
rules that apply to such cases, see Ira Mark Ellman, “Ambiguous-Father Families,” in Mary Ann
Mason, Arlene Skolnick, and Stephen D. Sugarman, eds., All Our Families (revised and enlarged
Proceedings from the 2005 Sho Sato Conference in Honor of Takao Tanase
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California rule favoring the husband’s paternity has a long history, but the debate
over social versus biological parentage has in recent decades acquired more
urgency, for several different reasons. First, advancing science made it possible
to identify many more cases in which biological and social paternity diverge. A
husband’s social paternity suggests his biological paternity but does constitute
dispositive evidence of it. But 30 years ago, it was better evidence than that
which any other man was likely able to produce. That is why, in this context, no
real choice had to be made 30 years ago, in contrast to today. Second, social
norms have changed in recent years in ways that make claims of social parentage
more important. The same-sex partner of a biological parent may seek legal
recognition of her social parentage, and some states have recognized that claim, at
least where doing so does not displace the parental status of any biological
parent.9 What then of the biological parent’s new spouse – the stepparent? Here
there may be an involved biological parent whose relationship with the child
would necessarily be compromised in recognizing the stepparent, and for that
reason the dominant American rule has remained much more cautious. Certainly,
no American state would find the custodial parent’s remarriage alone sufficient to
shift legal parenthood to a stepparent, even though the increased incidence of
blended families has generated interest in allowing some recognition of the
parental-like relationship that often develops between a child and stepparent.
That caution is not seen in the Japanese case that I have discussed. This
difference in law seems a direct reflection of different cultural norms. Professor
Tanase describes Japanese culture as making a sharp distinction between persons
within one’s inner circle, and persons who are not. Divorced spouses leave one
another’s inner social circle, and this separation, Professor Tanase suggests,
applies to their entire household. The result is that the noncustodial parent leaves
the inner circle of his or her child as well. Seen this way, it is not that Japanese
law disregards parental rights, but rather that the Japanese law Professor Tanase
describes reflects the Japanese conception of social parenthood. Socially, the
noncustodial parent is no longer regarded as a parent, much like the biological
father that the California rule declines to recognize. The new spouse has become
the social parent, and redefinition of legal parenthood then follows to align it with
social parenthood. The adoption permitted by the Japanese court, without notice
to the mother, merely recognized this shift. Culturally, the first wife was no
edition, New York, 2002); reprinted in a slightly different form as “Thinking About Custody and
Support in Ambiguous-Father Families,” Family Law Quarterly 36 (2002), 49.
9 See, e.g., V.C. v. M.J.B., 748 A.2d 539 (N.J. 2000), recognizing the birth mother’s lesbian
partner as a de facto parent entitled to most of the rights of the legal parent. In this case, there was
no known father, and the recognition of the birth mother’s partner did not displace the birth
mother from her claim as legal parent.
Proceedings from the 2005 Sho Sato Conference in Honor of Takao Tanase
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longer the mother and the adoption merely recognized that reality. Our cultural
norm is of course different. In the United States, the divorced parent normally
retains social parenthood, and thus legal parenthood. Divorce may of course in
fact lead to parent-child estrangement, but that result is generally regarded with
concern. It is not the result we want, and perhaps not the one we expect. Our
laws reflect our different cultural desires and expectations.
* * *
Professor Tanase speaks admiringly of the American law, because he sees
it as fostering a continued relationship of the child with both divorced parents. In
this context, then, he sees the law as a social force. I have suggested the differing
American and Japanese rules reflect rather than shape the prevailing cultural
norms. Of course, the causal arrow likely flows in both directions
simultaneously. Consider the Japanese rules on custody and visitation in the
larger context of divorce generally. A norm that treats the divorced noncustodial
parent as an outsider is undoubtedly easier to sustain when divorce is uncommon
and divorced families seen as exceptional. Perhaps, then, the Japanese norm is
dependent upon that country’s historically low divorce rate – considerably lower
than American and even European rates.10 As Japanese divorce rates increase –
and that has been their recent trend – one might then expect a shift in the cultural
norm, and a resulting shift in the legal rule. Yet at the same time, these Japanese
rules on custody may be one reason for their relatively modest divorce rates. We
know from American data that wives, not husbands, are the moving force behind
most divorces.11 That means that a successful strategy for reducing divorce rates
must change the choices that wives make. A social psychologist friend who has
gathered much of this data once said, in casual conversation with me, that if
people really wanted to use the law to bring down divorce rates he knew the rule
they should adopt: that whoever filed for divorce would automatically lose in any
10 Between 1920 and 1972, the Japanese divorce rate never exceeded 1 per 1,000 population, and
was often much less. A gradual climb from 1972 yielded a divorce rate of 1.94 in 1998 (Japanese
Ministry of Health and Welfare statistics posted at
http://www1.mhlw.go.jp/english/database/vs_8/vs0.html). By 2001 it had reached 2.27. See the
article posted at the Statistical Handbook of Japan, 2004
(http://www.stat.go.jp/english/data/handbook/c02cont.htm#cha2_4), which relies upon more
recent data from the same Japanese ministry. The 2003 rate of 2.25 perhaps suggests are a pause
in the recent trend (Statistical Handbook of Japan, 2004). The American divorce rate, by contrast,
peaked in 1979, at 5.3 per 1,000, and has generally been declining since, reaching the low 4’s.
(Precise, comparable figures over time in American divorce rates has become difficult because
they are no longer compiled, other than in preliminary form.)
11 Sanford Braver, Marnie Whitley, and Christine Ng, “Who Divorced Whom? Methodological
and Theoretical Issues,” Journal of Divorce and Remarriage 20 (1993), 1.
Proceedings from the 2005 Sho Sato Conference in Honor of Takao Tanase
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custody dispute. That rule, he observed, would deter a large share of the wives
who currently initiate most dissolutions. Of course, his suggestion was not
serious, but it did illustrate a central quandary in formulating family law policy:
the difficulty of finding rules that are efficacious in bringing about the desired
result, but do not violate other norms.12 For an American, his whimsical proposal
was obviously unacceptable precisely because it would violate not only our norms
of parental rights, but also our understanding of children’s interests. It seems the
traditional Japanese view of this matter may be quite different.
* * *
I was told by Professor Kazuyo Tanase, an expert in her own right on
divorce in Japan, that the outcomes in Japanese custody decisions have shifted in
recent years: husbands apparently once gained custody in the majority of cases,
but that is no longer true. That shift could be both a cause and an effect of rising
divorce rates. On one hand, the shifting practice in custody awards may motivate
men to seek changes in the law of custody and visitation, as they begin to see
themselves at risk, under current law, of losing all contact with their children. On
the other hand, changes in the law favorable to protecting visitation, if they occur,
could in turn encourage further increase in divorce rates, as wives become less
fearful that divorce risks complete estrangement from their children. Americans
interested in family policy will certainly want to watch the Japanese
developments unfold.

12 For further development of this theme, see Ira Ellman, “Why Making Family Law Is Hard,”
Arizona State Law Journal 35 (2003), 699.