JAPAN Trends and Developments Contributed by: Kenji Yano, Tokyo Kokusai Partners Law Office
comprehensive custody and education powers. How ‑ ever, in practice, alternating or shared allocations will depend heavily on the parents’ ability to co-operate and on the practical feasibility of the arrangement. Judicial standard and factors Governing standard Under the current Civil Code, the designation of a custodian is determined in accordance with the “best interests of the child” (Civil Code, Article 766). The same standard applies to the designation of the par ‑ ent authorised to exercise parental authority under the 2026 Amended Civil Code (Article 824-2 (3)). Relevant factors In prior judicial practice, when designating a cus ‑ todian, courts have been understood to conduct a holistic assessment, giving primary consideration to the child’s safety and physical and psychological well- being, and focusing in particular on the following four perspectives. These considerations are expected to apply similarly under the amended regime, including in the designation of the parent authorised to exer ‑ cise parental authority or in the allocation of custody responsibilities, particularly in cases involving a pro ‑ posed change of the child’s residence. • 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 and; economic and educational circumstances; the availability of sup ‑ port from others; consideration of sibling relation ‑ ships, 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. Parenting plans The reform is expected to increase the practical importance of comprehensive parenting plans, inte ‑
grating parental authority arrangements, the allocation of custody, contact schedules and child support. Practical implications Relocation under joint parental authority Under the amended regime, relocation becomes one of the most legally sensitive issues after divorce. As relocation does not constitute a “routine daily matter”, unilateral relocation without urgency may conflict with the principle of joint exercise of parental authority. This is of particular significance in disputes concerning relocation, school transfer or international movement. For the practical framework governing relocation under joint parental authority, see the Japan Law & Practice chapter in the Child Relocation Global Prac ‑ tice Guide. International cases and the Hague Child Abduction Convention Under the former Japanese legal framework, only sole parental authority was permitted after divorce. As a result, post-divorce international relocation did not readily give rise to issues concerning infringement of “rights of custody” under the Hague Child Abduction Convention. By contrast, under the 2026 Amended Civil Code, where joint parental authority is designated after divorce, decisions concerning the designation or change of the child’s residence, as well as reloca ‑ tion or travel abroad, will require the agreement of both parents, in principle. Accordingly, if one parent removes the child from Japan without the consent of the other parent, such conduct may contravene the principle of joint exercise of parental authority and may constitute an infringement of “rights of custody” under the Hague Child Abduction Convention. This represents a departure from prior practice under Japanese law. It should therefore be noted that, even in respect of a child habitually resident in Japan, the Hague Child Abduction Convention may become applicable on the premise of post-divorce joint paren ‑ tal authority. At the same time, even where joint parental authority is in place after divorce, the interaction with “rights
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