Noriko Shiina Prof. Takushoku University

THE JOINT CUSTODY OF CHILDREN AFTER DIVORCE TO REALIZE THE RIGHT OF CHILDREN TO BE RAISED BY BOTH PARENTS :A COMPARISON OF JAPANESE LAW AND ITALIAN LAW

Noriko Shiina Prof. Takushoku University

Presentation Outline

1. The situation of Joint Custody in Italy.2. Japanese legal system regarding the custody of children after divorce.3. The actual situation of children after divorce

in Japan.

Joint Custody in Italy

• In 2006• The New Joint Custody

Affidamento condiviso

Joint Custody in Italy Before 2006

・Alternative Custody (Affidamento alternato) 　　　　　　　　　　

　　　　　Emotional Instability of the children

・Joint Custody (Affidamento congiunto) 　　　　　

　　　　　The broad discretion of a Judge

The Purpose of the New Joint Custody (2006)

To limit the discretion of a Judge To make Joint Custody easier to realize

The Concept of the new Joint Custody

　　 Bigenitorialità

・　 The right of the children to be raised by both parents

・　 Parental Responsibility after divorce

　　　　　　 Shared responsibility

New Joint Custody

1. Joint Custody becomes principle, sole custody is an exception

2. The child has priority about assignment of family’s residence.

3. Change of the concept of support of child from “Indirect support” to “Direct support”

4. Sanction against serious breach of agreement

0

10

20

30

40

50

60

70

80

90

2003 2004 2005 2006 2007 2008 2009

%

Custody after Divorce in Italy

Istitute Centrale di Statistica

Joint Custody

Mother has sole custody

Father has sole custody

1960196519701975198019851990199520002005

Custody after Divorce in Japan 　

%

20

40

60

80

100

Joint custody in Japan

0%

Japanese legal system about Custody

• Only sole custody( Art. 819) • Joint custody is not recognized

The reason for sole custody in Japan

The difficulties of joint exercise

1. The end of cohabitation2. Conflicts between husbands and

wives

0102030405060708090

1960196519701975198019851990199520002005

Custody after Divorce in Japan 　%

Mother has sole custody

Father has sole custody

Parental authority divided: siblings split up

The Ministry of Health, Labor and Welfare

50.8%

Contact in the past

17.6%

27.7%No contact

Contact

The Ministry of Health, Labor and Welfare 2011

Contact between children and their fathers

(mother has sole custody)

19.7%

Father has paid in the past

15.8%

Father hasn’t paid60.7%

Father pays

Financial Support by fathers

Divorce of determination

Judicial Divorce

Divorce by mediation

Divorce by agreementDivorce by agreement87.8%

Japanese Divorce System

Why fathers don’t take responsibility

No Agreement about Visitation and Child Support

Social situation of single mothers in Japan

• Mother has to work

• Gender discrimination ・ Lack of opportunities of secure work　 ・ Wage disparity

54

56

58

60

62

64

66

68

70

72

1990 1995 2000 2005 2008 2012

67.865.6

62.5

70.6

60.2

Wage disparities between men and women

The Ministry of Health, Labor and Welfare 2012

Men=100

Womens’ Wages

The rate of temporary workers according to gender

male workers 29.8%

female workers 70.2%

The Ministry of Internal Affairs 　　　　　 and Communications 2012

Single mother's income

Single mother and extra income ２ Parent family

with Children

0

20000

40000

60000

80000

20568

33068

75000

Annual Income of Single mothers and 2-Parent families with children

The problem of Physical and Psychological care

• Bullying at school

• Juvenile Stay –at –home

Conclusion

Parents must take Joint responsibility• Joint Custody System is needed.• Sanction system needed. 　　　To prevent poverty of children after divorceTo guarantee personal contact 　　　　　　　　　　　 for the sound development of children