Upcoming joint custody brings relief and concern in Japan; Questions about medical decisions and other details

A system where divorced parents can choose to share custody of their child or children is set to become a reality in Japan after relevant legislation was passed by the House of Councilors on Friday. It will be a major change compared to the current system in which only one parent gets parental responsibility after a divorce.

The new system creates a framework in which both parents can take responsibility for and collaborate in raising their child, even after separation. Despite this, the way in which both parents are involved in a child’s upbringing remains undefined in some specific situations, so many wrinkles in the system need to be ironed out before it comes into effect.

National demographic statistics show that 179,099 married couples will have divorced in 2022. Of these, 94,565 had minor children. A total of 161,902 children experienced the separation of their parents that year.

In the current system, determining whether the mother or father gets parental responsibility after a divorce has been a major issue. Parental custody is the right and responsibility of a parent to care for a minor child and includes matters such as the child’s education and management of the child’s assets. Currently, the Civil Code stipulates that both parents have this authority as long as they are married, but that only one parent has this authority after a divorce.

In almost 90% of cases, the mother is given parental authority. Under this system of sole parental authority, the parent without parental authority is often unable to meet their child and finds it difficult to become involved in its upbringing. Some observers have pointed out that this can also lead to situations where the non-custodial parent does not pay child support.

Joint custody is common abroad, especially in countries like Europe and the United States. “It’s crazy that the option of joint custody doesn’t exist here, even though both parents want such an arrangement,” said one observer.

The revisions to the Civil Code and other laws allow parents who are divorcing to discuss and choose whether to opt for sole or joint custody. If they are unable to reach an agreement, a family court will decide whether to award joint or sole custody. The revisions state that a family court must award sole custody if there is concern that the “best interests of the child will be damaged” for reasons such as domestic violence or abuse committed by a parent.

These changes are very significant, according to Satoko Shibahashi, 50, head of Rimusubi, a Tokyo-based general association that supports divorced mothers and fathers in raising children. “The social prejudice that there is still a single parent after a divorce is being swept away. This could be an opportunity for society to more broadly recognize that both parents must raise a child even if they separate,” Shibahashi said.

Nerves ringing in medical circles

If joint custody is granted after a divorce, both parents will in principle discuss and decide matters that affect the child, such as the choice of which school to attend. Still, given that mother and father will effectively live separately, the revisions give one parent the ability to make decisions for “normal activities of daily living” or if there are “urgent circumstances.”

During parliamentary deliberations, the Ministry of Justice explained that “normal activities of daily life” would apply to matters related to the care of the child, such as the provision of meals, the choice of extracurricular activities, vaccinations and minor medical treatments, and the child working part-time. after starting high school. “Exigent circumstances” would apply to situations such as emergency surgery, fleeing domestic violence or abuse, and completing school admission procedures after matriculation results have been announced.

However, these cases are just examples. A family court will be charged with making a decision in the event that the parents’ opinions are divided on matters that should be decided by mutual agreement. “This could make a child’s progress to higher school or university difficult to complete,” one analyst suggested.

The government plans to provide clarity on what constitutes ‘urgent circumstances’ and other details before the new system comes into effect. Concern about the current situation is especially great in the medical world. When a child is a patient in a medical care facility, consent from the parent with parental responsibility is obtained when the child is admitted or undergoes surgery. However, it remains unclear what conditions must be met and what level of urgency is considered “urgent” enough that one parent’s consent would be sufficient. In joint custody cases, the medical facility would face the additional burden of contacting the parent who lives elsewhere and obtaining their consent.

“There is also the risk that if a medical institution performs an emergency medical procedure with the consent of one parent, the medical staff could be sued by the other parent who did not consent,” said the president of the Japan Society of Obstetrics and Gynecology . Kiyoko Sato, who is also a professor at Kyushu University.

The association she chairs is considering formulating guidelines covering issues including the scope of what medical procedures would be categorized as ‘regular’ and what would be ‘urgent’.

“We will develop these guidelines by working closely with pediatricians and advocates to ensure that any medical treatment necessary to save a child’s life can be provided with confidence,” Sato said.