Reliably hand over a child to the custodial parent: Effective rules for settling custody disputes over children after their parents' divorce must be decided expeditiously.
A proposed outline for revising the Civil Execution Law has been compiled at a panel meeting of the Legislative Council. One of its main pillars is stipulating procedures for the handover of children between divorced parents. The Justice Ministry aims to submit the revision bill to the extraordinary Diet session this autumn.
Which of the parents -- the father or mother -- is more suited to be the custodial parent? Even when a conclusion on this issue has been reached at a family court -- either through adjudication or mediation -- there are many cases where the conclusion cannot be implemented because the parent who has lost custodial rights will not comply. Of the 107 cases in which custodial parents demanded the handover of their children last year, only 30 percent actually saw that happen.
The Civil Execution Law, as it stands now, has no explicit provisions regarding the handover of children. The present state of affairs, in which provisions related to movable property are applied to such cases with necessary modifications, should be ameliorated.
According to the proposed outline, the court will in principle impose a fine before a handover is conducted in a compulsory manner, thus encouraging the person without custodial rights to hand the child over voluntarily. In the case of a person not complying with the demand, the revised law stipulates that a court execution officer may take the child out of the home, even in the absence of the cohabitating parent, and hand the child over to the custodial parent.
Up until now, when a parent who had lost custodial rights but continued to live with a child firmly refused to surrender the child, or was absent when a court execution officer visited their home, the court had to give up on executing the order. Stipulating the relevant rules will avoid turmoil to some degree at the time of the handover.
Protect feelings of children
What is most important on such occasions is to give sufficient consideration to the feelings of the children.
If a court execution officer hands over a child at a conspicuous place such as a school-commuting road, there will be an immeasurable emotional shock for the child. It is reasonable that the proposed outline calls for primarily conducting handovers at home, and forbids taking a child out of a home by force.
Not handing a child over to the custodial parent has also become controversial in the domestic application of provisions of the Hague Convention. There has been a succession of cases in which parents who have taken their children to Japan following the breakup of their international marriages have refused to return them to the country of habitual residence, thereby bringing Japan under criticism from abroad.
In accordance with the purport of revising the Civil Execution Law, the law concerning the domestic implementation of the Hague Convention should be hastily amended.
Also incorporated in the proposed outline are measures regarding the nonpayment of child support.
To clarify the assets of a debtor, the revised law will make it possible for the court to ask financial institutions and others for information regarding the debtor's place of employment and their bank deposits and savings. Punishments over the concealment of assets will also be strengthened. When realized, it will be easier to ascertain their bank accounts, also facilitating the seizure of wages.
Such provisions will also be applied to reparations for victims of serious crimes.
If a court ruling is not implemented, public trust in the judiciary will be shaken. Reinforcing the civil execution system is also effective in preventing creditors from having to swallow their losses.
(From The Yomiuri Shimbun, Sept. 3, 2018)
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