Married parents have shared parental responsibility for the children who were born to them (Article 818 (1) A, Civil Code). Parental authority is exercised jointly by married parents. If one of the parents is incapable of exercising parental authority, the other parent exercises parental authority.

The residence of a child is determined by the person who exercises parental authority (Shinken) (Article 821, Civil Code).

The legal position of unmarried parents is different from that of married parents. Only one of the unmarried parents has parental responsibility of a child born to them. When an unmarried mother gives birth to a child, she has the parental responsibility unless the parents agree otherwise or a court orders that the father has the parental responsibility. A father can exercise parental authority with regard to his child if both parents agree that he will have parental authority (Article 819(4), Civil Code). When the parents do not, or cannot, reach an agreement, the family court can make an order in lieu of the agreement at the request of either of the parents. There is no shared parental responsibility. If the father obtains parental responsibility, the mother cannot keep the parental responsibility. At the request of the child's relative, the family court can rule that the other parent will have parental authority in relation to the child if it is necessary for the interests of the child.

Birth certificates are not issued by the central government or local governments. Local governments keep the family register (Koseki) which records the family relationships of each family member. A certificate confirming the entry in the family register can be obtained.

The family register includes the following information for each person (Article 13, Family Register Act):

The legal position of some parents in relation to their child's upbringing will not be decided by applying Japanese law, but by applying the law of another jurisdiction. The legal relationship between the parents and their child is governed by (Article 32, Act on General Rules for Application of Laws):

If the child has more than one nationality, the national law is (Article 38 (1), Act on General Rules for Application of Laws):

The parents do not share the rights and responsibilities for the child following separation. Only one parent continues to have parental responsibility. When the parents divorce by agreement, they decide who will have parental responsibility.

In the case of a judicial divorce, the court determines which parent will have parental authority. In the case where the parents divorce before the birth of a child, the mother exercises parental rights and duties; however, the parties may agree that the father will have parental authority after the child is born.

The family court can make an order in lieu of an agreement at the request of the father or the mother. The family court may, at the request of any relative of the child, rule that the other parent will have parental authority in relation to the child if it finds it necessary for the interests of the child.

The other parent who does not have parental responsibility will still have an obligation to pay child maintenance and can have contact with the child.

Typically, only one parent raises the child and separated parents do not share the care, however, the other parent may have contact with the child.

The issue of access/contact/visitation is different from that of parental responsibility/custody. A parent who does not have parental responsibility/custody may have access/contact/visitation.

The following orders can be made by family courts to determine or regulate a child's care arrangements (Article 766(1), Civil Code):

When a court gives an order to appoint a parent who will take care of and educate a child (Kangosha) of a married couple, only the specified parent has the power to take care of and educate the child and most likely the other does not share any power to do so.

If the parents divorce by agreement, the matters of appointing a parent who will have the custody over a child, visitation and other contacts between the other parent and the child, payments of child support and any other necessary matters regarding custody over the child are determined by that agreement. The child's interests are considered to be the highest priority (Article 766 (1), Civil Code). The family court can issue an order if the agreement cannot be reached. The family court can change the agreement and make a different disposition regarding custody over the child, if it finds this necessary.

Article 766 of the Civil Code can be applied not only to the custodial issues of a child of separated parents but also to that of a child of married parents (Supreme Court, 1 May 2010 (No Heisei 12 (kyo) 5) 54-5 Minshu 1607).

It is unclear whether "any other necessary matters regarding custody over the child" in Article 766 include relocation matters between married parents as they have shared parental responsibility. The author has never heard of any precedents on the issue. In such cases, the parent should apply not for a relocation order but for an order to appoint a parent who will take care of and educate a child (Kangosha) (Article 766(1), Civil Code).

The author of this chapter has never tried and heard of relocation proceedings in a family court.

When parents have already divorced, only one parent has the parental responsibility (Shinken). The residence of a child is determined by the person who exercises parental responsibility (Shinken) (Article 821, Civil Code). The parent who has divorced and has solo custody can change where the child lives without the consent of the other parent.

When parents have not yet divorced and therefore have shared parental responsibility (Shinken) of the child between them, one parent cannot change the place where the child lives without the agreement of the other.

It is likely that the parent who wants to move with a child without the necessary consent of the other parent who shares the parental responsibility (Shinken) (Article 818, Civil Code), will first apply for the Kangosha order (Article 766(1), Civil Code).

In the opinion of the majority of lawyers, a parent who is appointed as the Kangosha can relocate the child to other jurisdictions without further court orders even if the other parent (who shares Shinken) is against the relocation. It is considered that the other parent's Shinken does not include the power to take care of and educate a child and therefore does not include the power to decide on the child's place of residence.

Relocating a child by a parent who does not have the Kangosha order without the permission of the other parent who has the Kangosha over a child will constitute child abduction.

Relocation disputes tend to arise when the relationship between the parents is failing, as well as for job-related reasons (for example, a transfer within a company). Parents tend to relocate with children when they fear that if they decide to leave the child with the other parent, the other is more likely to get the parental responsibility in case of divorce.

If the Japanese law is applied, only a parent who is married to the other parent and shares parental responsibility must get the consent of the other parent to relocate with the child internationally. This is because married parents share the power and responsibility to decide where the child should live (Articles 820 and 821, Civil Code).

The child's interests must be considered as the highest priority in a relocation dispute (Article 766 (1), Civil Code).

In judicial proceedings to appoint the parent who will take care of and educate a child (Kangosha) the judge considers the following factors (see Satoko Ishigaki & Kei Shigetaka, “Ko no Kangosha no Shitei Hikiwatashi Choutei Shinpan Jiken no Shinri” Housou Jihou Vol. 66 No. 10 (Housoukai 2014) at 37-69, 47):

In judicial proceedings to appoint the parent who will take care of and educate the child (Kangosha) (Article 766(1), Civil Code), a plan of permanent relocation is likely to be taken into account more seriously, as such a relocation has a significant influence on the child's life. The child's wishes and feelings about relocation and the parent's preparation to relocate with the child may also be considered.

There is no guidance relating to relocation cases.

The courts do not officially provide any guidance to help the judges to decide on the appointment of the parent who will take care of and educate a child (Kangosha) (Article 766(1), Civil Code).

There is no precedent on the application for relocation.

The procedure for an order to appoint a parent who will take care of and educate a child (Kangosha) (Article 766(1), Civil Code) is provided by Domestic Relations Case Procedure Act.

Applicants must try court mediation first, except for unusual cases. If the applicant does not reach an agreement with the respondent, the judge will decide whether to appoint the applicant as a Kangosha in closed judicial proceedings. The judge can appoint the respondent as a Kangosha even if the applicant sought the order.

The Supreme Court offers statistics about the Japanese judicial system on its website (www.courts.go.jp). In most cases, the procedure is concluded within one year, with many cases, it can be complete in three to six months. The statistics are available on www.courts.go.jp/app/files/toukei/125/008125.pdf.

A child will not be issued with a passport if one parent/guardian submits a written refusal to passport offices in Japan or Japanese Embassies and Consulates-General abroad. The passport for the minor will be approved and issued once the other parent/guardian who did not consent submits a letter of agreement to issue a passport for the minor applicant to a passport office in Japan or Japanese Embassy/Consulates-General abroad.

The author has never tried nor heard of an order that a parent can apply for to stop the other parent from leaving the country with the child.

Methods of ADR are used to help to resolve family-related disputes. Six bar associations have recently started to offer ADR for HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention) return cases and Hague Child Abduction Convention access.

The agreement reached through the use of ADR methods is merely an agreement between the parties and [s not enforceable.

The child's wishes and feelings are likely to be taken into consideration in a relocation case if such a case is dealt with by a family court. They will also be considered in judicial proceedings to appoint the parent who will take care of and educate a child (Kangosha) (Article 766(1), Civil Code).

When making a ruling regarding the custody of a child (excluding a ruling on the sharing of expenses required for the custody of a child), the family court must hear statements of the child in addition to hearing statements of the parties under Article 68 (Article 152 (2), Domestic Relations Case Procedure Act). The child must be 15 years old or older to be heard by the court.

Even when the child is under 15 years old, the judge will try to understand the child's wishes and feelings and take them into consideration according to the child's age or degree of development (Article 65, Domestic Relations Case Procedure Act).

A court handling a relatively complex custody case often orders internal investigators to examine the opinion of the child. Judges give significant weight to the reports of court officers and investigators.

Generally, there are no great differences in the way in which family disputes are determined by the courts in local areas in Japan.

Offers of security for the return of the child to spend time with the other parent do not feature in relocation disputes in Japan. Relocation disputes are not heard by the Japanese courts in the same way as they are in other jurisdictions.

A matter regarding relocation can be heard in a family court as a case regarding the custody of a child. Such cases are decided in proceedings for the adjudication of domestic relations under the Domestic Relations Case Procedure Act, and the parent has a right to appeal (Articles 85 and 156, Domestic Relations Case Procedure Act). The party who is dissatisfied with the decision can file the appeal within two weeks from the notice of the order to appeal (Article 86, Domestic Relations Case Procedure Act).

The appeal to the court of appeal prevents the ruling of the family court from taking effect (Article 74(2), Domestic Relations Case Procedure Act).

Except as otherwise provided, a ruling (excluding a ruling to dismiss a petition) will become effective when notice of it is given to a person who is subject to that ruling (if there are two or more persons subject to the ruling, one of these persons). A ruling against which an immediate appeal can be filed will not become effective until it becomes final and binding.

The consent of the other parent is not legally required.

A parent who is married to the other parent, and shares parental responsibility, must get the consent of the other parent to remove the child from Japan to another jurisdiction if Japanese law is applied to the case (Articles 820 and 821, Civil Code).

If the parent who does not have the right to do so removes the child to another jurisdiction, the left behind parent can try the return process under the HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention), if possible. Alternatively, it may be possible to use domestic family court proceedings in another jurisdiction.

Japan is a signatory to the HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention).

The Hague Child Abduction Convention entered into force in Japan on 1 April 2014. The Act for Implementation of the Convention on the Civil Aspects of International Child Abduction took effect on the same day. It is available at www.japaneselawtranslation.go.jp.

The following defences provided by the HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention) are available (Article 28(1), Act for Implementation of the Convention on the Civil Aspects of International Child Abduction):

When deciding whether or not there is a grave risk that the child would be exposed to physical or psychological harm on his or her return, the court will consider the following circumstances:

The expressions of the defences listed in the Article 28(1) are slightly different to those listed in the Hague Child Abduction Convention. However, it is said persuasively in the jurisprudence that there is no material difference in the meaning of the words used in the Hague Child Abduction Convention and the implementing act (see Osamu Kaneko and others, Ichimon Ittou Kokusaiteki na Ko no Turesari heno Seidoteki Taiou (Shouji houmu 2015) at 133).

The items listed in Article 28(2) are mere factors to be taken into consideration when the grave risk is considered (see Osamu Kaneko and others, Ichimon Ittou Kokusaiteki na Ko no Turesari heno Seidoteki Taiou (Shouji houmu 2015) at 144).

The child's wishes and feelings are ascertained and taken into consideration in the HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention) return cases.

A court handling a Hague Child Abduction Convention return case often orders court investigator(s) to examine the wishes, feelings and opinions of the child. Judges give significant weight to their report.

The child also has a right to appeal against a final order on the return of child (Article 101(2), Act for Implementation of the Convention on the Civil Aspects of International Child Abduction).

The child can intervene in the proceedings except when doing so would harm the interests of the child. The court will dismiss the application of the child if it finds it is harmful to the child's interests (Article 48, Act for Implementation of the Convention on the Civil Aspects of International Child Abduction).

There are no major legal developments in progress or planned which directly affect the law or practice in relocation cases. The reform of the law relating to international jurisdictions of family cases is in progress.

Case law on international child abduction is developing steadily.

One of the hottest issues is the efficiency of the enforcement of return orders. Typical steps to enforce return orders are as follows:

The enforcement of a return order will be revised in the near future.