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Review of Discussions on the Introduction of Joint Custody After Divorce in Japan - Centered on the Interim and Draft Proposals for Revising Family Law in Japan -

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2024, 12(2), pp.67-112
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law
  • Received : May 3, 2024
  • Accepted : May 22, 2024
  • Published : May 31, 2024

Oh, Ho-Cheol 1

1화성의과학대학교

Accredited

ABSTRACT

According to Article 909, Paragraph 2 of our Civil Code, “during marriage,” parents are to jointly exercise parental rights over their minor children. However, in the case of divorce, while Article 873, Article 909, Paragraphs 4 and 5 do not mandate the appointment of a sole custodian or caregiver, they do interpret the possibility of joint custody after divorce. Despite this interpretation, the actual recognition rate of joint custody for divorced parents remains significantly low. Even if joint custody is legally recognized for divorced parents, practical issues arise such as how to exercise joint custody and how it relates to the right of guardianship, due to the lack of explicit regulations addressing these concerns. Moreover, the global trend, especially in Europe, regards joint custody as the norm regardless of marital status, with sole custody being an exception. Recently, to introduce joint custody for divorced parents as a norm, Japan announced a "Draft Proposal for the Revision of Family Law" on January 30, 2024. This paper reviews the interim proposal and the draft proposal leading up to this announcement, providing insights into potential implications for explicitly incorporating joint custody for divorced parents into our Civil Code. The paper suggests specifying the responsibilities of parents of minors clearly in the law, establishing joint custody as the standard both during and after marriage, and clarifying regulations concerning the exercise of parental rights and the guardianship of children under joint custody.

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