JAPAN Law and Practice Contributed by: Kenji Yano, Tokyo Kokusai Partners Law Office
Domicile, Residence and Nationality See 1.2 Choice of Jurisdiction in Divorce Proceed- ings (Domicile, Residence and Nationality). 3.2 Living/Contact Arrangements and Child Maintenance Court Proceedings Concerning Residence and Contact Where the parents cannot agree If the parents are unable to agree on the child’s resi ‑ dence or contact (visitation), either parent may file a petition with the Family Court for mediation or adju ‑ dication concerning contact (Civil Code, Article 766). Where the dispute concerns the child’s residence, including proposed relocation, the matter is typically addressed through procedures such as designation of the custodian (Civil Code, Article 766) or change of the parent holding parental authority (Civil Code, Arti ‑ cle 819 (6)). In particular, Japanese law does not pro ‑ vide for a formal “relocation permission” procedure. Instead, relocation disputes are resolved indirectly through the framework of determining which parent should exercise custody or parental authority, thereby effectively determining the child’s place of residence. Judicial standard In determining matters concerning a child’s care, the court must give paramount consideration to the best interests of the child (Civil Code, Article 766 (1)). In practice, the court conducts a holistic assessment, taking the following into account in particular: • safety (eg, abuse, domestic violence, risk of abduction or other threats to the child’s well- being); • the child’s circumstances (age, physical and psychological condition, living environment, and wishes); • each parent’s circumstances (physical and mental condition, caregiving capacity, financial situation, and attitude toward facilitating contact); • the parent–child relationship (the pre-separation relationship and the history of contact); and • inter-parental and environmental factors (ability of the parents to co-operate, sibling relationships, remarriage, and support from extended family).
judicial procedure conducted within the court system and is, strictly speaking, distinct from ADR. Legal Status of Settlement Agreements An agreement reached through ADR is valid as a con ‑ tract between the parties, but it does not in itself have enforceability. To make the agreement enforceable, it must be either incorporated into a notarised deed containing an enforcement clause, or formalised in a Family Court conciliation record or court judgment.
3. Child Law 3.1 Choice of Jurisdiction in Children Proceedings Jurisdiction to Commence Child-Related Proceedings International jurisdiction
In respect of child-related proceedings, including cus ‑ tody, contact (visitation) and child support, the juris ‑ dictional framework differs depending on whether or not the claim is made in connection with divorce pro ‑ ceedings. Where filed as ancillary relief to divorce proceedings If a Japanese court has international jurisdiction over the divorce action, it will also have jurisdiction over ancillary matters such as designation of parental authority, custody and contact (Personal Status Liti ‑ gation Act, Article 3-4). Where filed independently of divorce proceedings Where child-related proceedings are brought indepen ‑ dently of divorce, Japanese courts will, in principle, have international jurisdiction if the child’s residence is in Japan (Domestic Relations Case Procedure Act, Article 3-8). Domestic venue Once international jurisdiction is established, the question of which Family Court within Japan has venue is determined separately under the applicable domestic venue rules.
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