Australian Embassy
Tokyo
Japan

Family Law – Child Custody in Japan

Family Law – Child Custody in Japan

Disclaimer: Any information contained on these pages relating to the legal system in Japan is provided for general information only. Independent legal advice should be sought from Japanese legal professionals for specific information relating to individual cases.

 

Domestic Japanese Family Law and Child Custody

Japanese family law is very different to Australian law. Child custody, child access and divorce decisions within Japan are based on Japanese family law. After divorce, only one parent retains legal parental responsibility for the child.

If you are involved in domestic family law disputes in Japan, consider contacting a lawyer in Japan for advice and to assist with your court proceedings. See here for a list of English speaking lawyers in Japan: https://japan.embassy.gov.au/tkyo/legal.html

Please be advised that the Australian Government does not have jurisdiction to intervene in Japanese legal proceedings.

 

Child Custody in Japan

In Japan, married parents have joint custody and responsibility of their children, unless there is a court order which indicates otherwise. Foreign court orders are not automatically recognised in Japan, but may be considered under certain circumstances.

The mother has sole custody and responsibility when children are born to unmarried parents. The father may be unable to have his details registered on the birth records of the children at Japanese municipal offices. Regardless of the nationality of the parents, birth records in Japan are registered and managed in accordance with Japanese laws and regulations.

When parents divorce, they must agree on who will take the sole custody of their children and responsibility. The Japanese family courts will provide mediation to facilitate a decision, but if the parents are still unable to reach an agreement, the court will determine the custody of the children via a court judgement. Family courts in Japan generally consider that it is in a child’s best interests for them to remain in their “usual place of residence”, therefore courts usually give sole custody and parental responsibility to the parent who has taken care of the child most recently.

 

Parental Child Abduction within Japan

The abduction of a child by a parent may not be considered a criminal offence in Japan. To establish a sound understanding of their legal rights, obligations and potential action that can be taken, the left behind parent should seek advice from a Japanese lawyer as well as consider reporting the situation to the police in Japan. However, Japanese law enforcement tend to view family disputes as private family matters and therefore can be reluctant to intervene.

The Australian Government does not have the authority to force the taking parent or the Japanese courts to return a child, grant regular access/visits or intervene in negotiations between parents. Left behind parents should establish communication with the taking parent in order to settle an agreement under Japanese law through court mediation. Left behind parents are able to pursue custody or visitation (access) through the Japanese family courts so it is important for parents to seek specialist local legal advice.

If you believe you are not being treated fairly under the Japanese legal system, you should consult your Japanese lawyer as well as consider reporting your situation to the Japan Federation of Bar Associations (JFBA).

 

Criminal Complaint for Kidnapping of Minors (Penal Code Article 224)

Complaints made under Penal Code Article 224 (Kidnapping of Minors) must be lodged with police within six months of the complainant identifying the suspected offender (following the incident).

Please note this is not official legal advice. Australians with questions about how Article 224 might apply in their situation should consult a Japanese legal professional.

 

Family Courts in Japan

During the divorce and custody mediation, if the left behind parent wishes to obtain an update on their children’s situation and welfare, they may request the family court to conduct an investigation (by court-appointed investigators). The courts will compile an investigation report after the conclusion of the investigation (in Japanese). The content of the investigation may differ depending on the specific family court and each individual case.

If visitation rights are granted through a court judgement (when an agreement was not reached through mediation between the parents), but the taking parent does not comply, the courts may order monetary compensation to be paid to the other parent until there is full compliance with the court decision. The common court decided visitation arrangement would be monthly half-day visits. Court judgements may differ significantly case by case.

Please be advised that the Australian Government cannot intervene in the decision-making process of the Japanese courts. Domestic child custody cases are processed under Japanese family law.

 

Children Travelling Out of Japan

There are no specific legal requirements for a child to be permitted to leave Japan. A parent who has legal and/or physical custody of their children has the right to take them out of Japan. There are no judicial procedures to implement a “travel restriction” to prevent a child from leaving Japan.

 

Australian Passport

In order for a minor with Australian citizenship to be issued an Australian passport, both of the child’s parents/guardians must consent and sign the corresponding sections of the passport application form. Without full consent, the only way to guarantee a passport is by the provision of an Australian court order.

“Child Alerts” can be requested to be recorded on a child’s Australian passport. A child alert does not guarantee that the Australian Passport Office (APO) will refuse a passport to the child. If APO determines that the child is entitled to a passport by law, APO will issue a passport even if there is a child alert. If the child already has an Australian or foreign passport, a child alert will not cancel the passport or stop travel.

See the Australian Passport Office’s website for more information:

https://www.passports.gov.au/getting-passport-how-it-works/how-get-child-passport/child-alert-requests

 

Japanese Passport

According to the Ministry of Foreign Affairs of Japan, when a minor with Japanese citizenship applies for a Japanese passport, only one parent/guardian must sign the “Legal Representative Signature” section on the passport application. An application signed by one parent is accepted under the assumption that the signature is a representation of consent from both parents/guardians.

However, if one parent/guardian submits a written refusal to a passport office in Japan, or a Japanese Embassy or Consulate abroad, a minor’s passport will only be issued after it has been confirmed that both parents/guardians consent to the minor’s passport application.

See the Ministry of Foreign Affairs of Japan’s website for more information:

https://www.mofa.go.jp/announce/info/pdfs/notice_for_parents.pdf 

 

Other Resources in Japan

The Japan Legal Support Centre (Ho Terasu) may provide free legal counselling for some foreign nationals with low income.
Enquire with them directly for more information: https://www.houterasu.or.jp/en/

 

The Japan Federation of Bar Associations provides a link to legal counselling for foreign nationals by various bar associations (generally charged, but free counselling provided for some individuals with low income).
Enquire with them directly for more information: https://www.nichibenren.or.jp/en/

 

Family Law Reform in Japan

Japan’s Ministry of Justice is currently considering a reform of its family law. More details can be found here:

The Ministry of Justice：Review of provisions on divorce and related systems (moj.go.jp)

Australia made a submission to the Ministry of Justice’s public consultation process on proposed reform. Linked below is Australia’s submission in English and Japanese:

Australia's Submission to Japan's Family Law Reform Proposal - English

Australia's Submission to Japan's Family Law Reform Proposal - Japanese

 

Family Law Reform in Australia

Useful factsheets provided by the Attorney-General’s Department in relation to family law reform in Australia.

English:

Family Law Amendment Act 2023: Factsheet for Parents | Attorney-General's Department (ag.gov.au)

Family Law Amendment Act 2023: Factsheet for Family Law Professionals | Attorney-General's Department (ag.gov.au)

Japanese translations: 

改正家族法－2024年5月施行－父母及び関係者向けのファクトシート

改正家族法－2024年5月施行－家族法専門家向けのファクトシート

 

International Child Abduction – The Hague Convention

Australia and Japan are both parties to The Hague Convention on the Civil Aspects of International Child Abduction.

If you are involved in parenting or other family disputes in Australia, and/or are considering removing your children from Australia, consult a lawyer before you leave Australia for advice on how the Hague Convention and Japanese family law may affect your family.

If you have concerns that your child may be removed from Australia without your consent, you may wish to contact the Australian Federal Police for advice about placing your child’s name on the Family Law Watchlist. You can find information about doing this at https://www.afp.gov.au/what-we-do/crime-types/family-law-kit#thefamily. The Family Law Watchlist mechanism is designed to alert relevant authorities to the movement of children and it identifies whether children are leaving Australia’s borders.

If you're concerned that your child has been wrongfully removed from Australia or detained in Japan, contact the Attorney-General's Department in Australia.

 

 

English Speaking Lawyers in Japan – Family Law Specialists

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The names and contact details of lawyers practicing in Japan appearing above has been compiled by the Department of Foreign Affairs and Trade (DFAT) from publicly available information. DFAT does not endorse any of the lawyers appearing in this list, provides no guarantees as to its currency and does not accept any liability if you choose to engage one of these lawyers to provide legal services. The lawyers are listed in no particular order.