JAPAN Law and Practice Contributed by: Kenji Yano, Tokyo Kokusai Partners Law Office
exercise of parental authority, except in cases of urgency (Article 824-2 (2), Article 824-2 (1)(iii)). The amended Code also introduces new provisions to resolve disputes between parents over the joint exercise of parental authority (Amended Civil Code, Article 824-2, Article 766). In addition to the proce - dures traditionally used, the following methods will become available. • Designation of the parent exercising parental authority (Article 824-2 (3)) – upon the petition of either parent, the Family Court may authorise one parent to exercise parental authority alone with respect to changing the child’s residence. Where relocation alone is in dispute, this method is expected to be the primary means of resolution. • Allocation of custody responsibilities (Article 766) – the authority regarding the child’s care (including matters concerning the designation of residence) may be entrusted to one parent. 2.3 Application to a State Authority for Permission to Relocate a Child 2.3.1 Factors Determining an Application for Relocation Basic Standard The standard, both for designating a custodian under the current law and for designating the parent to exer - cise parental authority under the amended law, is the best interests of the child (Civil Code, Article 766; Amended Civil Code, Article 824-2 (3)). These procedures do not directly determine whether relocation is permitted. Instead, they decide which parent should exercise custody or parental authority, including determining the child’s residence. Factors Considered in Judicial Practice In judicial practice, designation of the custodian has been decided through a holistic assessment, giving primary consideration to the child’s safety and physi - cal and emotional well-being, and focusing on the following four factors (Judicial Research and Training Institute, Study on the Hearing and Determination of Disputes Concerning Custody and Delivery of Chil - dren, 2024, Hōsōkai).
The same considerations are expected to apply under the amended Code when designating the parent to exercise parental authority. • Past caregiving arrangements – who has been the primary caregiver, the amount and quality of care, etc. • Caregiving capacity and environment – the parent’s physical and mental condition, willingness to care, understanding of and commitment to the child’s welfare, living environment, economic and educa - tional circumstances, availability of support from others, consideration of sibling relationships, etc. • Parent-child relationship – the current parent- child relationship, potential for change, the child’s wishes and feelings, emotional bonds, etc. • Attitude toward the child’s relationship with the other parent – willingness to support continued parent-child contact, etc. Additional Factors in Relocation Cases Following the amendment of the Civil Code, in relo - cation cases, additional consideration is expected to be given to the impact of changes in the child’s living environment and the effect on the child’s continued relationship with the non-residential parent. 2.3.2 Wishes and Feelings of the Child A child’s wishes and feelings are taken into account according to the child’s age and degree of develop - ment (Domestic Relations Case Procedure Act, Article 65). Where the child is 15 years of age or older, the Family Court must hear the child’s statement (Article 152 (2) of the same Act). Such hearings are generally con - ducted by a Family Court investigator. The child’s wishes and feelings are positioned as one of the factors to be considered in the evaluation of the “caregiving capacity and environment” and “parent- child relationship” identified in 2.3.1 Factors Deter- mining an Application for Relocation . 2.3.3 Age/Maturity of the Child A child’s wishes should be carefully assessed as they are influenced by factors such as the child’s maturity
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