2022/07/09離婚・親権
Is it true Japanese Family Court prioritizes Motherhood as almighty element?
Q, I and my wife started the discussion about divorce. We basically agreed to get divorced, but we are at a stalemate regarding child custody. I want child custody and I believe I should be granted child custody of my son because my wife easily gets mad and is too strict with my son, she cannot do parenting properly from viewpoint of the best interest of child welfare. But I heard that in Japan, the court has a strong tendency to prioritize and respect motherhood, and being a father is considered negatively, namely, Father is lack of ability to raise children. No way! How does the court in Japan decide which parent should be granted child custody? Are there any objective criteria?
A,
■ True or not, the court’s tendency and mindset about child custody.
Certainly, I cannot deny the court in Japan seems to have a tendency to respect motherhood rather than fatherhood in terms of deciding which parent should be granted child custody. However, it is a little bit inaccurate. The court does not always prioritize motherhood. Rather, they respect maintaining ‘the status quo’ surrounding children unless the court finds there are obviously problems such as child abuse in current circumstances in terms of the best interest of the child’s welfare and well-being.
■Background of such tendency in Japan
In Japan, we can see the reality that many Japanese mothers are expected to manage housework and childcare in addition to working outside, and consequently, there is a tendency that the mother bears the burden of raising children single-handedly and spends more time with children compared to the father’s commitment in raising children, who work outside and has little time to spend with children. Considering such facts and reality, resultantly, there are many cases where the court grants child custody to the mother. In other words, I want to reiterate the court does not think that motherhood is an absolute element and value in respect to which parent should have child custody.
■ Elements to be considered by the court in Japan
What elements does the court in Japan take into consideration regarding child custody?
The following items are that the court requires both parents to make statements and submit them to the court as food for thought. In other words, the court takes into consideration these items comprehensively in deciding which parent should be granted single custody.
非監護親の生活状況 Living condition of a parent not living with children at the moment
(1) 生活歴（学歴，職歴，病歴，家庭生活や社会生活における主な出来事等）
Living background and history (your educational and occupational background history, medical history if any, any specific events during your marriage, and a social life that you would like to mention particularly if any)
(2) 職業，勤務先，勤務時間及び仕事の内容等
Your occupation (including business line, job title), the place of work, working schedule, etc.
(3) 平日及び休日の生活スケジュール
Your daily schedule (both on business days and holidays)
(4) 健康状況 (Your health condition
(5) 同居家族とその状況（氏名，年齢，職業）
Family member cohabiting with you and their situation (name, age, occupation)
(6) 住居の間取り＜資料＞ the layout of your residence(attach the floor plan if any)
２ 経済状況 Economic condition
(1) 収入＜資料：源泉徴収票，確定申告書など＞
Your income (attached such as withholding tax slip, tax returns form, or the other)
(2) 特記事項 Matters worthy of special mention if any
３ 子の生活状況 Living conditions of children
(1) 子の生活歴及び監護状況 living history and conditions of your children.
(2) 子との交流の状況
Your current interaction and relationship with your child (frequency, time lengthy, place, ways to meet or spend your time with your children)
４ 子の監護方針 your policy and plan regarding raising your child.
(1) 今後の監護方針 Future plans to take care of your children
(2) 予定している監護環境及び監護態勢 Educational and living conditions and circumstances that you can/plan to provide to your children at the moment
(3) 監護補助者の有無及びその氏名，年齢，住所 the name, age, and address of those who will support your child care responsibility if any.
(4) 親権者となった場合の非親権者と子との交流についての意向
Your opinion about how to interact between your ex-husband/wife (without parental authority) and your child if you obtain parental authority.
５ その他参考となる事項 other reference
（注） 資料は写しで可，例示の他に必要に応じて添付してください。
(Note) the documents to be submitted to the court should be accepted by copies, not original ones. You would like to deliver the documentation supporting your claim if necessary.
As mentioned above, the Japanese court does not necessarily prioritize Motherhood per se, rather they make a decision very carefully considering various elements from the view of the best interest of the child. Some people say the Japanese court has a prejudiced mindset that a father is not a good fit as the custodial parent. However, it is not true. Even if divorcing couple is going to end the marital relationship, there is no change in the relationship as a father and a mother of their children. Especially in highly conflict divorce cases, their child would be stuck in the middle between the mother and the father who is fighting against each other about which parent should be fit as parenting parent or custodial parent, which gives a severely stressful impact on their child.
Hope each divorcing couple would make each other halfway and try to understand each other for their child’s well-being.