Community and the Law
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Community and the Law

A Critical Reassessment of American Liberalism and Japanese Modernity

Takao Tanase

Edited by Luke Nottage and Leon Wolff

This important book translates seven landmark essays by one of Japan’s most respected and influential legal thinkers. While Takao Tanase concedes that law might not matter as much in Japan as it does in the United States, in a provocative challenge to socio-legal researchers and comparative lawyers, he asks: why should it? The issue, he contends, is not whether law matters to society; it is how society matters to law.
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Chapter 4: Post-Divorce Child Visitations and Parental Rights: Insights from Comparative Legal Cultures

Takao Tanase


1. INTRODUCTION The issue of child visitations is assuming greater importance in Japan. Each year, approximately 250,000 Japanese children in 150,000 family units witness the divorce of their parents. Overall, more than 23 per cent of all Japanese children are expected to experience the breakdown of their parents’ relationship before they reach adulthood. With the divorce rate hovering at its post-war peak, more fathers seeking to maintain a parenting role post-divorce and many mothers preferring to sever all ties with their ex-husbands, visitations disputes are climbing. So much is borne out by recent statistics. In 1998, visitation cases numbered 1,700 mediations and 290 formal adjudications; in 2006, they had nearly tripled to 5,600 cases overall. Yet full visitations rights are seldom allowed. Of the 5,600 cases concluded in 2006, visitations by non-custodians were approved in 57 per cent of all cases. Of these, only half permitted visitations of more than once a month and only 14 per cent granted overnight stays (Tanase, 2008). Japanese family law appears ambivalent about endorsing co-parenting post-divorce. Although article 766 of the Civil Code proclaims that the ‘best interests of the child’ should guide post-divorce parenting arrangements where the former spouses cannot agree on these themselves, article 819 provides that only one parent should have ‘parental power’. This ambivalence is reflected in judicial attitudes. Since the Tokyo Family Court first recognised visitations in 1964 (14 December 1964, 17 Kagetsu 55), Japanese judges have consistently refused to recognise a right in...

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