Two major changes to family law were made in 2011.

[SATOSHI MINAMIKATA]

First, section 766 of the Civil Code was revised to promote the legal status of parties to divorce disputes with respect to child maintenance and contact. The old subsection 1 of section 766 of the Civil Code stipulated that divorcing parents should form an agreement as to which parent should hold custody of their children after divorce and other relevant matters relating to custody. If they failed to reach an agreement, the family court would decide those matters. The old subsection did not include any clear statement as to the major issues of divorce disputes, such as maintenance of the child after divorce and contact with the non-resident parent.

The new provision states clearly that the divorcing parents shall form an agreement as to which parent will hold custody of their child after divorce and other matters relating to custody, contact, and maintenance. In addition, it has been enacted that the best interests of the child must be prioritised when making such an agreement.

In 1966, the court declared that, for the purpose of promoting the welfare of children involved in divorce disputes, an absent parent should be granted contact with their child after divorce. The court further permitted a claim for child maintenance to be paid by an absent parent to a resident parent following divorce, on the basis that the financial support of minor children should be a natural obligation of the parents. In this respect, it could be said that the revised section 766 has finally confirmed the common practice of the court in relation to custody issues such as contact and child maintenance after divorce.

Second, the provisions on parental rights and duties have been partly revised in order to meet the demands of practitioners involved in child abuse cases. Prior to the 2011 revision, where a family court judged the behaviour of parents to be inappropriate and harmful to the welfare of the child, or considered that the parents were at fault according to the current social norms regarding the protection of the child’s interests, it could issue a determination to remove parental rights and duties, upon an application by relatives of the child, a prosecutor and/or a director of the children’s section of a local authority (section 834). In this procedure, the parent(s) were faced with the possibility of either completely losing their rights and duties or retaining them by way of the determination. It often happened that parents adamantly and unreasonably opposed the application. As a result, the child was likely to lose protection, and the relationship between parents and the welfare authority seriously deteriorated, since the latter would in many cases be the applicant for this procedure.

Practitioners engaged in child welfare matters, such as officers of the children’s section of a local authority, strongly insisted that the measure to temporarily suspend parental rights and duties for a certain period should be implemented by law, in addition to the existing provisions to remove parental rights and duties altogether, in order to avoid unnecessary disputes between parents and the child welfare authority.

The revised Civil Code provides that a family court shall issue a determination to suspend parental rights and duties for up to two years, if it finds that it will be difficult for the parents to execute their parental rights and duties, or it is inappropriate for them to do so (section 834-2). Moreover, a child, his/her guardian or supervisor of the guardian is eligible to make an application to a family court for such determination to be issued. This is in addition to the relatives of the child, a prosecutor and a director of children’s section of a local authority (section 834-2 and Child Welfare Act section 33-7). The new law is thus intended to enable practitioners in this field to conduct their duties regarding the protection of abused children more effectively.

Akachan (satoshi@jura.niigata-u.ac.jp)