Another example is the anachronistic legal requirement that a child born within 300 days of the mother's divorce be registered as the child of her ex-husband — even if she has married the child's biological father. Thus, the formalistic integrity of the registry system takes precedence over the biological and emotional reality of Japanese children.
Indeed, when form and substance clash in Japanese law, the family registry and outdated provisions of the Civil Code often win. Marriages are not legal until they are registered, and in custody disputes, what the family registry says may be more important than the reality of a child's living environment and biological or emotional bonds. As a result, fathers of children born out of wedlock — even if it is due to the circumstances of the mother (such as being estranged from but still married to someone else, or not wanting to change her name for professional reasons) — have literally no legal standing over their own children in Japan, even if they are the primary caregiver. Similarly, after divorce a noncustodial father legally becomes a "stranger" to his own children and may be shocked to discover that, without his consent, these children can be adopted by a new husband if his ex-wife re-marries, or by her own parents if she does not.
This brings us back to the Civil Code, which basically says that, absent special circumstances, mothers have custody of extramarital children, that married parents have joint custody over children of the marriage while it lasts, and that if divorcing parents are not able to agree on who gets custody, a judge will decide for them.
At the same time, however, the code contains virtually no standards for custody decisions after divorce other than a reference to the "interests of the child." Courts purport to use a "best interest of the child" standard, but there are virtually no statutory guidelines as to what that means (that is, unless you include the fact that the Civil Code does not allow joint custody post-divorce — even if both parents desire it). The law effectively assumes that outside of marriage, having only one parent actively involved in a child's life is better than having both. But since the focus of the law was traditionally on the interaction between households and the rest of society, this restriction may have once made sense: Fewer disputes are likely to arise if after divorce only one parent has the authority to conduct dealings with third parties on the child's behalf. It is, however, a rationale that has little to do with the best interests of the child. A sole-custody regime is probably also easier for bureaucrats to administer, and changing it might involve a wholesale restructuring of the family registry system, and even lead to thinking about whether it is still even necessary (South Korea recently replaced its family registry with a personal registry system).
Other than the limitation on joint custody, there is essentially no substantive body of "law" on child custody or visitation in Japan, with such matters left to the discretion of Family Court judges. Courts have used this authority to adopt a number of unofficial standards, including a strong preference for the status quo (but only the status quo at the time of litigation; the status quo of children before they are abducted to Japan, for example, is often ignored). Courts are also increasingly open to the once-alien notion of visitation after divorce, but often only if both parents agree to it. And while mothers refusing to agree to visitation is a persistent problem, it is not uncommon for Japanese fathers not to seek it, either.
Another standard invented by the courts is a preference for mothers when it comes to custody orders, though the parties are always free to agree to give custody to the father in the course of the court-sponsored mediation that must precede divorce litigation. According to Supreme Court statistics, in 2008 men got custody in mediated divorces in approximately 10 percent of cases. Interestingly, the court does not appear to publish similar statistics for litigated divorces (i.e., when judges are responsible for the result rather than the parties themselves), reflecting their stated preference for mothers, particularly in the case of young children. A commercially available manual written by and for family law specialists has a chapter on custody determinations that sets forth a single standard: Give custody to the mother, because they are always going to be more attentive than fathers. (In making this judgment, the manual seems to assume that all men work outside the home and all mothers stay at home.)
The preference for mothers would seem to be an impressive feat of judicial legerdemain in the face of provisions in the Constitution, the Civil Code and the Family Court procedural statute that mandate the "essential equality of the sexes." That jurists can talk openly about mothers as always being the "better parent" without any cognitive dissonance may reflect an understanding of the phrase "gender equality" as actually being about raising the status of women from the legal infirmities they were subjected to under the pre-war Civil Code, rather than actual gender equality. Whether such an understanding remains relevant in the 21st century is questionable.
Of course Japan has laws other than the Civil Code, and it should be possible for courts to look to them for norms and principles that could be applied to fill out the many blanks in the area of child custody and visitation. For example, Japan is a signatory to the Convention on the Rights of the Child, which contains an extensive list of rights that would seem relevant, including the rights of children to be free of various forms of discrimination against them and their parents, to know and be raised by their parents whenever possible, to preserve their name and family relations, and to continue to have contact with a separated parent. Yet none of this seems to count for anything in Japanese courts, where parental contact is easily terminated even before divorce, custody determinations are made based on gender (and nationality, many foreign parents might assert), and a child may grow up forgetting or even never experiencing the love of a caring parent who has struggled in court to prevent this from happening.
Then there is the Constitution. The U.S Supreme Court has held that parents have a fundamental liberty interest in their relationship with their children, meaning that a very high threshold must be met before a government agency can terminate it. Japanese Supreme Court cases tying the parent-child relationship to any sort of fundamental rights, however, are almost nonexistent. In 1984, a father appealed the denial of visitation to the Supreme Court on the basis that it violated his right to the pursuit of happiness under Article 13 of the Japanese Constitution. His appeal was rejected. While this may reflect the reluctance of Japan's highest court to interfere in family affairs, many parents might question whether Article 13 means anything at all if it does not encompass the happiness of watching your own children grow up.
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