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MOJ to clarify rules for handing over children of divorced parents

The subcommittee on the Civil Execution Law of the Legislative Council of the Ministry of Justice (MOJ), an advisory body to the justice minister, has decided to draft an outline specifying rules regarding the handover of children between divorced parents. Currently, court execution officers almost always fail to conduct the handover of children after being refused by parents who lost custody but live with the children. The draft outline is expected to stipulate such details as allowing court officials to hand over children to the parents who have won custody even in the absence of the parents who have not. The MOJ aims to revise the Civil Execution Law within next year.


The current law does not stipulate how to hand over children from parents who have lost custody due to family court judgments and mediation as a result of divorce to parents who have won custody. Under the current law, if parents who live with children defy a court order to let them go, court officials visit their houses. But officials are often forced to give up the handover of children due to the parents’ refusal or absence.


According to the Supreme Court, court officials last year could successfully conduct the handover of children in only 35 out of 107 cases in which parents with custody sought the handover of their children, accounting for about 30% of the total. In many cases, former couples met face-to-face and started arguing, resulting in failed handovers and traumatizing many children.


In light of these situations, the subcommittee, which has been examining the clarification of handover procedures, decided to include the condition that “children can be handed over even in the absence of the parents living with them” in the outline. The condition that “children can be removed in the presence of the custody holder” is also expected to be included. If the law is amended according to the outline, execution officers will be able to remove children and hand them over to parents with custody in their presence even though parents living with the children are absent.


Meanwhile, the outline will also include a provision urging parents to voluntarily hand over children by imposing a penalty on parents living with children before execution officers’ visits in consideration of mental and physical burden on children. Further, the outline will require execution officers to make every effort to avoid visiting public places, such as school zones and parks, and prohibit forceful removal of children from homes.


The subcommittee will soon finalize the draft outline and submit it to the justice minister as early as this autumn after gaining approval from the Legislative Council. The MOJ will draw up a revised Civil Execution Law reflecting the direction of the draft outline and submit it to a regular Diet session as early as next year.


On the other hand, in connection with the Hague Convention, which stipulates the handling of children taken overseas due to a failed marriage, the effectiveness of the law has been inviting distrust from overseas following a series of cases in which Japanese parents bring their children to Japan and refuse to return them to the countries where they came from. So the MOJ will soon ask the subcommittee to discuss revising the domestic implementation law stipulating rules for handing over children based on the Hague Convention.



Gist of the draft outline

  • Execution officers can hand over children in the presence of parents with custody even though parents living with the children without custody are absent.
  • Procedures need to be executed before execution officers’ visits for children’s handovers, such as imposing a fine on parents living with the children without custody to urge them to voluntarily hand them over.
  • The handover of children should essentially be conducted in their homes. But it can be conducted in other places in consideration of the effect on children’s emotions and health.
  • Children can’t be forcibly taken from their homes.
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