At the time of divorce, “who among the father and mother will take the children” will need to be discussed. This is an issue concerning parental authority and child custody rights, which is explained in more detail below.
Who is a person with parental authority
A “person with parental authority” (親権者 or “shinken sha” in Japanese) is a person that holds the right, and bears the duty, to care for and educate a minor child, to manage the assets of the child, and to perform juristic acts on behalf of the child (Civil Code Article 820).
While married, the husband and wife have joint parental authority, meaning that they both have the foregoing rights and duties. Upon divorce, it is necessary to designate one parent as the person with parental authority.
How the person with parental authority is decided
Where minor children are involved, it is necessary to indicate the person with parental authority on the notice of divorce
If there are minor children and you are getting a divorce by agreement (協議離婚 or “kyogi rikon”), unless either the father or mother is indicated as the person with parental authority for each of the children on the notice of divorce (離婚届 or “rikon todoke”), the notice of divorce will not be accepted.
Therefore, prior to getting divorced, the husband and wife need to decide which of them will become the person with parental authority.
If the husband and wife cannot agree through discussions, the person with parental authority will be determined pursuant to conciliation, a decision of the court, or by court judgment.
If the husband and wife cannot agree as to who will be the person with parental authority, the person with parental authority will be determined pursuant to conciliation (調停 or “chotei”) or a decision by the court (審判 or “shinpan”) to designate the person with parental authority. If the divorce is being disputed and there is a pending divorce action, then the court will issue a judgment to determine the divorce (裁判離婚 or “saiban rikon”) along with the person with parental authority.
The criteria in determining the person with parental authority
The elements that the court considers in determining the person with parental authority
- The circumstances of the father and mother (in addition to the willingness of each to care for the child, all circumstances including matters such as age and health, economic wealth such as assets or income, help from parents of each spouse, and living conditions)
- The circumstances of the child (all circumstances including age and maturity, the effect that a change in environment may have on the child, and emotional ties to family members)
- The principle of continuity (the parent that has been actually caring for the child is prioritized)
- The intentions of the child are respected
- The principle of keeping siblings together
- The principle of prioritizing the mother
The court will consider all circumstances such as the foregoing in deciding which of the husband or the wife is more appropriate to be the person with parental authority.
The person with parental authority will be determined with a strong focus on the “benefit of the child”
Therefore, the court will decide who to give parental authority based upon the standard of which parent being chosen as the person with parental authority will be most beneficial to the child and contribute to the welfare of the child.
For this reason, continuity in providing future care and the stability of the child are prerequisites.
On top of this prerequisite, what is important is the “benefit of the child.” Therefore, you should always keep in mind, that the court will determine the person to have parental authority based upon the wellbeing of the child, and not the wishes or desires of either parent.
Changing the person with parental authority
After divorce, changes to the person with parental authority can only be made through family court
At the time of divorce, the husband and wife can discuss and decide who will have parental authority, but after divorce, changes to the person with parental authority can only be made through the family court.
Usually, when the person with parental authority changes, so will the living environment of the child. Courts believe that such change will have negative effects upon the child, and disfavors such change.
Therefore, if the child is living stably with the current person with parental authority, then it may be difficult to get approval to change the person with parental authority.
Because of the difficulty in changing the person with parental authority after the divorce, it is crucial that this decision is properly made at the time of divorce.
Difference between a person with parental authority and child custody rights
Custodial rights to the person of the child are rights included within parental authority.
A person with parental authority has rights to the custody of the child (formally 身上監護権 or “shinjo kangoken” or just “kangoken”) and rights to manage the assets of the child (財産管理権 or “zaisan kanriken”). Therefore, normally the parent that will be living with and caring for the child becomes the person with parental authority as well as the person with custodial rights to the child.
However, this does not always have to be the case, and it is possible to separate the custodial rights from parental authority, and to have one parent serve as the custodial parent, while the other parent serves as the person with parental authority.
The person with custodial rights to the child has the right to live with the child and to take care of the child.
What to watch out for when designating the person with custodial rights.
If you will become the custodial parent, prepare an agreement for divorce or have a notarized document prepared.
While the person with parental authority is required to be indicated in the notice of divorce, the person with custodial rights will not be indicated on the notice.
Therefore, when the husband and wife decide that one of them will have custodial rights, it is crucial to memorialize the fact of who will have custodial rights to care for the child either in an agreement for divorce (離婚協議書 or “rikon kyogisho”) or by having a notarized document prepared (公正証書 or “kosei shosho”).
The person with custodial rights does not have to be a parent.
Examples of persons that are commonly designated as the person with custodial rights are the grand parents of the child, aunts and uncles, and where a parent cannot live with the child due to economic reasons, child welfare organizations may also be designated as the person with custodial rights.
Be aware, that the person with custodial rights has the right to have the person with parental authority pay child support to care for the child.
However, because it is rare for persons other than the parents to be designated as the person with custodial rights, this should be thought more of as an exception.
Disadvantages in designating separate people as the person with parental authority and custodial rights.
The child and the person with custodial rights will have different family names.
For example, if the father is the head of the household indicated in the family register, and if it is decided that the father will have parental authority and the mother will have custodial rights, then for purposes of the family register, the child will remain with the father.
Under these facts, because the wife’s family name, which had changed upon marriage, will return to her original family name upon divorce, her family name will be different from that of the child that lives with her.
However, if the wife applies to continue to use her family name that she was using while married, she can avoid the child’s family name being different from hers.
Warning: when getting married again
If the parent with custodial rights gets married again, in order to create a parent-child relationship between the child and the new spouse, the child must be adopted. However, because an adoption is considered a change to the minor child's personal status (身分関係 or “mibun kankei”), consent of the person with parental authority will be necessary. Therefore, in order to adopt the child, you will need the consent of your former spouse that has parental authority.
Advice from our attorneys
When getting divorced, in addition to the dispute concerning the divorce itself, problems such as those involving parental authority over the children, division of assets, and compensation for emotional damages frequently occur. In addition to these issues, where foreign spouses are involved, the legal complexity of the divorce increases exponentially. At Verybest, our experienced lawyers can advise and guide you through this complex area of the law.