\\jciprod01\productn\C\CAC\17-3\CAC313.txt

unknown

Seq: 128-MAR-16

16:05

BARGAINING IN THE SHADOW OFCHILDREN’S VOICES IN DIVORCECUSTODY DISPUTES: COMPARATIVEANALYSIS OF JAPAN AND THE U.S.
Hiroharu Saito*
This paper discusses the social impact of hearing children’s
wishes in judicial procedures for divorce custody disputes by comparing the different legal systems in Japan and the U.S. In particular, through a plain law and economics approach with the analyticalframework of “Bargaining in the Shadow of the Law” suggested by
Mnookin and Kornhauser (1979), this paper discusses the backlash
to parents’ bargaining outside the court by empowering children to
be heard in court.
There has been a child advocacy movement in Japan to empower children’s participation right in the judicial procedures in accordance with the UN Convention on the Rights of the Child, andthe act for family court procedure was reformed in 2013 accordingly.
However, this paper argues: (i) in general, the more the legal systemempowers children’s right to be heard in the judicial procedure, theless opportunity children will have to be heard in society (i.e., during
the parents’ negotiations outside the court); and (ii) particularly
under the unique Japanese divorce system, the 2013 reform would
hinder the social change to empower children in society—children
would rather lose their opportunity to be heard outside the court. In
order to really empower children in society, society should not only
grant children procedural rights in court but also substantive rights
regarding their parents’ divorce.

* Visiting Researcher at Harvard Law School. Attorney-at-law qualified in Japan. LL.M.,
Harvard Law School. M.Ed. & LL.B., University of Tokyo. I am grateful to all the participantsof the Child Advocacy Program Workshop and the LL.M. Long-Paper Writers’ Workshop at
Harvard Law School and a session at the 4th East Asian Law & Society Conference (“EALS2015”) in Tokyo for their helpful feedbacks. I would also like to thank Shozo Ota, University ofTokyo for his invaluable comments. Special thanks to Mary Welstead, Elizabeth Bartholet, andCheryl Bratt, the Child Advocacy Program Harvard Law School for their kind support to myresearch.

937

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

unknown

Seq: 228-MAR-16

16:05

938 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 17:937
I.

INTRODUCTION

Imagine you are a child and your parents decided to separate.
Sadly, today is the day your dad is moving out of the house. You
really, really wanted to live with your dad, but your parents eventually decided that your mom would take you. Your parents didn’t
even ask you anything when making this decision. Your mom issuper crazy about you, and it seems your dad couldn’t convince her
although he also desired to have you. How would you feel?
This paper discusses the impact of hearing children’s wishes injudicial proceedings for child custody disputes upon divorce, comparing Japan and the U.S. When divorcing parents have minor
children, it is necessary for them to determine which parent takes
post-divorce custody of their children (more precisely, custodial
duties towards and rights with regard to their children). For many
parents, children are what matters the most to them, and thus, theissue of child custody frequently turns out to be an important andserious dispute upon divorcing.
However, the main focus of this paper is not the direct effectof children’s wishes on judges’ decisions in legal procedures. Instead, through a plain law and economics approach, this paper focuses on (i) how divorcing parents’ informal bargaining behaviors
and negotiations outside the court would be affected, and (ii) how
those parents’ negotiations would differ under each legal system tohear children’s wishes. Systematic differences in the legal systems
between Japan and the U.S. should have a certain impact on divorcing parents’ negotiations. This paper actually intends to highlight potential backlash effects of hearing children’s wishes injudicial procedures on society outside the court.
The key argument of this paper is that parents might end up
giving children less opportunity to express the children’s own views
during the parents’ negotiations outside the court even if children’s
formal rights to express their wishes inside the court were more
empowered. In particular, the risk of such backlash might behigher under the Japanese divorce system where parents may divorce without any involvement from the court.
A.

Background

Currently, there is a worldwide consensus that children shouldbe treated as rational human beings, not just as the property or\\jciprod01\productn\C\CAC\17-3\CAC313.txt

2016]

unknown

Seq: 328-MAR-16

DIVORCE CUSTODY DISPUTES

16:05

939

possession of the parents. As the recently minted word “childism”
indicates,1 some people began to view discrimination against children as serious as discriminations based on race or gender. Also,
the worldwide movement of empowering children has been gradually growing. The General Assembly of the United Nation (the“UN”) adopted the Convention on the Rights of the Child (the“UNCRC”) in 1989, which has been widely ratified by every member nation of the UN except for Somalia, South Sudan, and the
U.S. Also, in 2006, the UN made a resolution2 to re-emphasizethat the UNCRC “must constitute the standard in the promotion
and protection of the rights of the child.”
The UNCRC suggests three different types of children’s rights,
often called “three P’s”: (i) Protection from exploitation andabuse/neglect; (ii) Participation in society and the decision-making
processes that affect the children’s interests; and (iii) Provision ofassistance for survival and development.
Hearing children’s wishes in judicial proceedings, the focus of
this paper, is within the scope of the Participation right. Article 12of the UNCRC provides a specific suggestion on this issue. Children shall have the right to express their views in society (Paragraph 1), and in particular, shall have the opportunity to be heard
in the judicial procedures (Paragraph 2).
Article 12 (emphasis added):
1. States Parties shall assure to the child who is capable offorming his or her own views the right to express those views
freely in all matters affecting the child, the views of the childbeing given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided theopportunity to be heard in any judicial and administrative
proceedings affecting the child, either directly, or through a
representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Each ratified nation is required to design its own judicial procedures in accordance with this UNCRC suggestion. Thus, designing legal systems to hear children’s wishes is now quite a universal
issue. As for divorce custody cases, children’s wishes, preferences,
1 ELISABETH YOUNG-BRUEHL, CHILDISM: CONFRONTING PREJUDICE AGAINST CHILDREN(2012). Young-Bruehl, a psychologist, first used the word “childism,” and discussed abuse andneglect from the perspective of prejudice against children.
2 G.A. Res. 61/146, U.N. Doc. A/RES/61/146 (Dec. 19, 2006).

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

unknown

Seq: 428-MAR-16

16:05

940 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 17:937
views, and opinions regarding custodial parents should be heard in
relevant judicial procedures.
B.
1.

Scope

Children’s Right to be Heard

This paper takes a stand that it is essential for our society toempower children’s right to be heard, as embodied in the
UNCRC.3 The focus of this paper is on this particular right ofchildren.
On the other hand, detailed discussions about the rights or interests of parents are beyond the scope of this paper. For example,
it is said that hearing children’s wishes might count against gay andlesbian parents in the custodial disputes.4 Also, from a paternalistic perspective, some people underline psychologically negative impacts of hearing children’s wishes.5 But I will save those
discussions for another occasion.
2.

Divorce Custody Disputes

Divorce custody cases are an exceptionally good opportunity
to discuss children’s wishes. Children are required to express theirown wishes independently from their parents, since the situations
require that a child choose one of two parents. This is different
from situations such as school choice, where children and the parents make the choices jointly.
Second, divorce custody cases are a good opportunity to discuss the impact of children’s voices to the involving actors’ behaviors. As described in Section I-C below, it would be worth
analyzing the parents’ negotiations outside the court in the divorce
custody case.
To be precise, this paper analyzes divorcing parents’ bargaining in a case where both parents are willing to take custody—the
3 This paper does not intend to make a detailed argument in this regard. But, consideringchildren’s ability to adapt to a changing environment is higher than that of adults in general, I
think we should listen to children in this rapidly changing society. Our next generation shouldhave the right to express its views.
4 Kirsten Lea Doolittle, Note, Don’t Ask, You May Not Want to Know: Custody Preferencesof Children of Gay and Lesbian Parents, 73 S. CAL. L. REV. 677 (2000).
5 See, e.g., PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS § 2.08 cmt. f. (AM. LAW INST. 2002), which highlights the concern that “children may
feel responsible for the outcome of a custody dispute if they believe they have participated in its
resolution.”\\jciprod01\productn\C\CAC\17-3\CAC313.txt

2016]

unknown

Seq: 5

DIVORCE CUSTODY DISPUTES

28-MAR-16

16:05

941

majority case for divorce custody disputes.6 If only one of the twoparents wanted to take custody, no substantial dispute would arise
over child custody. If none of the two parents was willing to takecustody, child custody arrangements would be of issue, but thesekinds of cases are in the minority.
3.

Japan and the U.S.

This paper focuses on two countries, Japan and the U.S.,
whose legal systems concerning divorce are systematically different
from each other. Thus, hearing children’s wishes has differing impacts on these countries’ societies. This paper mainly discusses theJapanese context, comparing it to the state of the law in the UnitedStates.
C.

Significance of Study

This study is significant in three contexts: (i) the context ofchildren’s empowerment; (ii) the context of divorce disputes; and(iii) the context of Japan.
First, in the context of children’s empowerment, even though
the worldwide movement to empower children and to respect children’s participation rights has been growing as described above,
there has been a lack of attention to the outcome and social impactof empowering children’s participation rights. How would it affectsociety and other adults if children were heard; and vice versa, howshould children be heard if you consider its impact on society? Ifchildren’s voices were to be heard in a decision-making or a dispute-resolution procedure, their voices would not only be reflected
directly in decisions (i.e., the judge would take into account children’s voices when making the judgment), but also might change
behaviors and strategies of other actors involved (i.e., the strategies
of divorcing parents would change). While advocating for children’s conceptual “rights” themselves is important, it is also critically important to discuss the social outcome and impact of hearing
children in the legal system. This study offers a discussion fromthis new perspective.
6 For example, in a study conducted in California, 82.2% of mothers wanted to obtain solephysical custody of the children, while a total of 67.9% of fathers wanted to have sole (32.5%) or
joint (35.4%) physical custody. See ELEANOR E. MACCOBY & ROBERT H. MNOOKIN, DIVIDINGTHE CHILD: SOCIAL AND LEGAL DILEMMAS OF CUSTODY 98–100 (1992).

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

unknown

Seq: 628-MAR-16

16:05

942 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 17:937
Second, in the context of divorce disputes, this study offers a
new discussion highlighting the relationships between children’s
wishes and parents’ bargaining. In a number of previous studies
discussing child custody standards and reforms, a few have cast a
spotlight on the role of children’s wishes.7 But none of those studies discussed the effects on parent-bargaining behavior. Considering the fact that parents themselves have broad discretion todetermine their post-divorce rights and duties both in Japan andthe U.S.,8 it is necessary to analyze the impact on the parents’ negotiations outside court when improving the legal system for divorce disputes.
Robert Mnookin and Lewis Kornhauser9 started the discussion about divorcing parents’ bargaining in the shadow of the law.
Over the past thirty years, after their article, several studies havediscussed divorcing parents’ bargaining in the shadow of the law,
but none of them really focused on the role of children’s wishes.10
In these thirty years, children’s rights have begun to be recognized
more explicitly under the UNCRC. Today, it is essential to include
the role of children’s wishes in the discussion in order to understand divorcing parents’ bargaining outside the court in a moreelaborate way.
Third, this study offers a new discussion emphasizing systemic
differences between the legal systems in Japan and the U.S., andhow those differences might affect parents’ divorcing negotiations.
As described in Section II-A below, practices and discussions
about how to hear and value children’s wishes in the legal system
are yet to be developed in Japan. This comparative study would
7 E.g., Randi L. Dulaney, Children Should be Seen and Heard in Florida Custody Determinations, 25 NOVA L. REV. 815 (2001); Barbara A. Atwood, The Child’s Voice in Custody Litigation: An Empirical Survey and Suggestions for Reform, 45 ARIZ. L. REV. 629 (2003); Rebecca
Hinton, Comment, Giving Children a Right to be Heard: Suggested Reforms to Provide Louisiana Children a Voice in Child Custody Disputes, 65 LA. L. REV. 1539 (2005); Jacqueline Clarke,
Do I Have a Voice? An Empirical Analysis of Children’s Voices in Michigan Custody Litigation,
47 FAM. L.Q. 457 (2013).
8 See infra Sections II.A.1 and II.B.1.
9 Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Caseof Divorce, 88 YALE L.J. 950 (1979).
10 E.g., Randy Frances Kandel, Squabbling in the Shadows: What the Law Can Learn fromthe Way Divorcing Couples Use Protective Orders as Bargaining Chips in Domestic Spats andChild Custody Mediation, 48 S.C. L. REV. 441 (1997); Betsey Stevenson & Justin Wolfers, Bargaining in the Shadow of the Law: Divorce Laws and Family Distress, Q.J. ECON. 121, 267 (2006);
Jana B. Singer, Bargaining in the Shadow of the Best-Interests Standard: The Close Connection
Between Substance and Process in Resolving Divorce-Related Parenting Disputes, 77 L. & CONTEMP. PROBS. 177 (2014).

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

2016]

unknown

Seq: 728-MAR-16

DIVORCE CUSTODY DISPUTES

16:05

943

help reveal characteristics of the Japanese legal system and the system’s impact on divorcing parents in Japanese society.
I hope this paper will help improve the legal systems for divorce disputes and start discussions about redesigning the legal andsocial system around children’s voices in Japan, the U.S., and othercountries.
D. Composition
First, in Section II, I will overview (a) the legal systems fordivorce and (b) the current role of children’s wishes in Japan andthe U.S. respectively. Then, in Section III, I will suggest two behavioral models for divorce negotiations, and examine them by reviewing both quantitative (a survey report) and qualitative data
(biographies) in Japan. Section IV will offer the main argument; itconducts a theoretical analysis of the impact of hearing children indivorce custody disputes based on a concept of bargaining in the
shadow of the law. Lastly, in Section V, I will conclude this paper’s
discussion and offer policy recommendations.
II.

LEGAL SYSTEMS IN JAPAN AND THE U.S.

In this section, I overview the role of children’s wishes in thelegal systems for divorce in Japan and the U.S.
A. Japan
1.

Japanese Legal System for Divorce

Before focusing on children’s wishes in the legal system, I
would like to briefly summarize the Japanese divorce system ingeneral. Compared to other countries, the Japanese system isunique in two respects: (i) divorce by mutual agreement; and (ii)no joint custody.11
11 See ATSUSHI OMURA ET AL., HIKAKU KAZOKU HO KENKYU [COMPARATIVE STUDY OF
FAMILY LAW] (2012); FUMIO TOKOTANI & ATSUSHI MOTOYAMA, SHINKEN HO NO HIKAKUKENKYU [COMPARATIVE STUDY OF CUSTODIAL RIGHTS] (2014). For criticism of the Japanesesystem, see also Matthew J. McCauley, Comment, Divorce and the Welfare of the Child in Japan,
20 PAC. RIM L. & POL’Y J. 589 (2011).

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

unknown

Seq: 828-MAR-16

16:05

944 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 17:937
i.

Kyogi Rikon (Divorce by Mutual Agreement)

The most unique quality of divorce law in Japan is that a decree from court is not required to effectuate a divorce. Couples
themselves may decide any conditions by mutual agreement, including issues related to their children (i.e., child custody, visitation, and child support) without going to or filing anything with acourt. Once divorcing couples agree to a divorce and its conditions, they just go to a municipal office, where they are required tosubmit a divorce notification form in order to revise their family
registration record. This type of divorce, called kyogi rikon (divorce by mutual agreement), comprises approximately ninety percent of divorce cases (87.3% in 201312) in Japan.
ii.

Saiban Rikon (Divorce at Court)

However, if couples cannot agree to the divorce or divorcing
conditions, they go to a family court to resolve their disputes.
Those cases are called saiban rikon (divorce at court—12.7% in
201313). All the cases at the court first go to the conciliation procedure (chotei), which is a mandatory procedure,14 and in which twopart-time mediators employed by the court (and sometimes one
professional judge) facilitate couples to reach an agreement. Most
court cases are successfully resolved at this conciliation stage (tenpercent in 201315).
If couples still fail to reach an agreement through the conciliation procedure, they file a lawsuit for divorce with the family court(sosho). This is officially a separate legal procedure from the conciliation procedure (chotei), but there is de facto continuity in practice: the judge usually handles the court proceedings based on the
judicial record of the conciliation procedure.16 These cases are approximately three percent of all divorce cases. Once they file alawsuit, half of the cases are resolved by a court’s adjudication(1.2% in 201317) while another half are resolved by a settlement(1.5% in 201318).
12 KOSEI RODO SHO [MINISTRY OF HEALTH, LABOR, AND WELFARE], JINKO DOTAI TOKEI[DEMOGRAPHIC REPORT] (2014).
13 Id.
14 Kaji Jiken Tetsuzuki Ho [The Domestic Relations Case Procedure Act], Law No. 52 of2011, art. 257 (Japan).
15 SHO, supra note 12.
16 In small courts in rural areas, even the judge in charge would be the same person as theone in charge of the conciliation procedure.
17 SHO, supra note 12.
18 Id.

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

2016]

unknown

Seq: 928-MAR-16

DIVORCE CUSTODY DISPUTES
iii.

16:05

945

Sole Custody

Another unique quality in Japan is joint custody of the childafter divorce is not permitted. A parent with a sole legal custodial
right (shinken) must be identified for each child, regardless ofwhether parents divorce by kyogi rikon or saiban rikon.19 This is
grounded in the traditional idea that divorced parents cannot
jointly and amicably take care of their children.20 Ordinarily, theparent who takes the legal custody (shinken) would also take thephysical custody (kangoken) of the children.21
2.

Children’s Wishes in Japanese Legal Systemi.

Rights to Express Wishes

In accordance with the UNCRC (see Section I-A above),
there is a movement in Japan to empower children’s participationrights in the judicial procedures. A new Japanese act (Kaji Jiken
Tetsuzuki Ho [The Domestic Relations Case Procedure Act], hereinafter the “Act”), which reformed family court procedures significantly, was enacted in 2011 and took effect in 2013. In order to beconsistent with the UNCRC, children’s participation rights in family court are stipulated in four ways under the Act: (A) through(D) below.22(A) Regarding the child at the age of fifteen and older, “thefamily court must hear statements from the child” when the court
makes an adjudication.23 This provision was actually not new todivorce custody cases; the same provision existed before the new
Act took effect in 2013.24 Specific ways to hear the child are notclarified in the Act, and it is considered that a variety of ways
would be acceptable, such as: (i) direct hearing by the judge; (ii)hearing or examination by a family court research official (katei
19 MINPO [CIV. C.] art. 819, paras. 1–2 (Japan).
20 YUKO MIZUNO, RIKON CHOTEI / RIKON SOSHO [DIVORCE CONCILIATION & DIVORCE
LITIGATION] 142 (Kenichi Akitake & Kentaro Oka eds., rev. ed. 2013).
21 It is not prohibited to divide legal custody and physical custody between two parents, butsuch an arrangement is unusual in practice. See MINPO [CIV. C.] art. 766, paras. 1–2 (Japan).
22 OSAMU KANEKO, ICHIMON ITTO KAJIJIKEN TETSUZUKI HO [Q&A: THE DOMESTIC RELATIONS CASE PROCEDURE ACT] 34 (2012).
23 Kaji Jiken Tetsuzuki Ho [The Domestic Relations Case Procedure Act], Law No. 52 of2011, art. 152, para. 2 (Japan).
24 But, the Act newly expanded the scope of this provision to the cases of termination ofparental rights. To be specific, the family court was not obliged to hear children’s wishes intermination of parental rights before 2013, but now the family court must hear children’s wishes.

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

unknown

Seq: 1028-MAR-16

16:05

946 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 17:937
saibansho chosakan);25 (iii) written statement submitted from thechild; and (iv) inquiry in writing.26(B) Even regarding children not reaching the age of fifteen,
the family court “shall endeavor to understand the intentions of
the child . . . , and to take the child’s intentions into considerationin adjudicating the case, according to the child’s age or degree ofdevelopment.”27 Even though this was not a significant change inpractice, it was the Act that first stipulated this clearly in the law.
(C) As long as the child is considered to have basic mental
capacity (usually at the age of ten), the child may participate in thechild custody case as an “Interested Party,” independent from theparents, and the child him or herself may perform procedural acts
without having any legal representative, such as his or her parent,
guardian, attorney, and guardian ad litem.28 By participating as an“Interested Party,” the child can state his or her own views before
the court. This was new to Japanese family courts.
(D) As for the child’s participation as an “Interested Party,”
the family court may appoint an attorney as counsel for the participating child, upon the request of the child or at the discretion of
the court.29 This was also very new to the Japanese legal system.
Before 2013, there was no formal system for children to be directly
represented by attorneys in the judicial procedures except for juvenile delinquent or criminal cases.
While (A) applies only to sosho (the adjudication procedure)and does not apply to chotei (the conciliation procedure), (B), (C),and (D) apply to chotei as well as sosho.30
ii.

Role of Children’s Wishes

Now, the family court system in Japan secures children’s procedural right to express their own wishes and views in child custodycases. However, the Act did not stipulate how the court should
value expressed children’s wishes, and this is still left open. Two
25 Family court research officials (katei saibansho chosakan) are experts in child psychology,

development, and education, who conduct research and examinations for judges. Normally,each case at the family court is assigned to one judge and one (sometimes two) research
official(s).
26 OSAMU KANEKO, CHIKUJO KAISETSU KAJI JIKEN TETSUZUKI HO [COMMENTARY ON THE
DOMESTIC RELATIONS CASE PROCEDURE ACT] 492–93 (2013).
27 Kaji Jiken Tetsuzuki Ho [Domestic Relations Case Procedure Act], Law No. 52 of 2011,art. 65 (Japan).
28 Id. at arts. 151 & 42.
29 Id. at art. 23.
30 Id. at art. 258, para. 1.

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

2016]

unknown

Seq: 11

DIVORCE CUSTODY DISPUTES

28-MAR-16

16:05

947

opposing positions were discussed upon the enactment of the Act,but the discussion has been inconclusive.31
One position was to treat children’s wishes as one of numerous factors to help the court determine the best interests of thechildren when deciding the custodial parent. It is said that court
practices have primarily taken this position before and after theenactment of the Act.32 To be specific, the court exercises discretion to determine the best interests of the child through a holistic
review of all factors such as: (i) factors of parents, including parents’ capacity for custody, mental and economic environment, living environment, educational environment, parents’ attachment tothe child, previous custodial circumstances, assets, and support
from other relatives; and (ii) factors of child, including age, sex,
physical and mental maturity, adoption to environment, adoptability to new environment, child’s wish, attachment to parents andrelatives.33
The weight of a child’s wish depends on the child’s age. Because children around the age of ten are considered to have thebasic mental capacity to declare their own intent in Japan, it is said
that courts tend to respect the wishes of children at the age of ten
or older when those wishes are clearly expressed. On the other
hand, the court would not always respect the wishes of children
below the age of ten.34
Another approach, promulgated mainly by child-advocate attorneys, was to give children the rights to make a decision, and tosupport children in the exercise of such rights. In other words, children’s wishes and choices are considered to be a controlling anddecisive factor in deciding the custodial parent.
31 Homusho, [Ministry of Justice], Hosei Shingi Kai—Hishojiken Tetsuzuki Ho / Kaji
shinpan Ho Bukai Kaigi Gijiroku [Legislative Council—Working Group for Act of Procedure in
Non-Contentious Matters / the Domestic Relations Case Procedure Act: Mins. (2009–10) at the
9th and 27th meetings]; HIROSHIGE TAKATA, KAJIJIKEN Tetsuzuki Ho: Riron Kaishaku Unyo[the Domestic Relations Case Procedure Act: Theory, Interpretation and Practice] 242–54(2014) (Japan).
32 Family court’s adjudications are rarely publicized. Consequently, it is difficult to grasp thefamily court practice and ruling in Japan. A common way to learn the family court practice is toreview commentaries written by judges. See infra note 33.
33 MIZUNO, supra note 20, at 143–45; MASAAKI MATSUBARA, KASAI NI OKERU KO NOSHINKENSHA / KANGOKENSHA WO SADAMERU KIJUN [CRITERIA FOR DETERMINING CHILDCUSTODY AT FAMILY COURT], FUFU / OYAKO 215 DAI [215 QUESTIONS FOR MARRIED COUPLES/ PARENTS AND CHILDREN] (Aiko Noda & Yasuko Hitomi eds., 1991).
34 MIZUNO, supra note 20, at 145; SHUHEI NINOMIYA & FUJIKO SAKAKIBARA, RIKONHANREI GAIDO [DIVORCE CASES GUIDE] 201–02 (2d ed. 2005).

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

unknown

Seq: 1228-MAR-16

16:05

948 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 17:937
Even though current court practice in Japan has adopted thefirst position (a non-controlling factor to determine the best interests of the child), this practice may shift in the near future to thesecond position (a controlling factor based on the child’s right tochoose), given the general movement in Japan to empower children’s rights.
B.
1.

U.S.

U.S. Legal System for Divorce

Divorce and child custody are intrinsically state law issues. Legal systems vary from state to state. However, generally, parents in
the U.S. are required to obtain a decree from court when divorcing. In other words, courts reserve the legal authority to determine
all the conditions of divorce, including child custody, visitation, andchild support. Having said that, in practice, the court usually acknowledges the conditions agreed upon by the parties. In most divorce cases, once parents file a form with the court specifying the
divorce conditions agreed, the court would issue a decree in accordance with the form submitted. To be specific, Section 306 of the
Uniform Marriage & Divorce Act of 1970 (amended in 1971 and1973) (the “UDMA”) has suggested the “unconscionable” standard: the court shall issue a divorce decree unless the court finds
the agreement “unconscionable.”35 Parties also may choose tomerge the provisions of divorce agreement into the decree or not.36
Therefore, divorcing parents themselves have a certain de facto
discretion to determine the divorce conditions.37
Also, joint custody is widely adopted in the U.S. Some states
have introduced a system to divide child custody into legal custodyand physical custody.
2.

Children’s Wishes in U.S. Legal System

Despite the fact that the U.S. has not ratified the UNCRC,
children’s wishes are indeed playing an important role in the U.S.
35 This “unconscionable” standard has been actually adopted in several states such as Colorado (COLO. REV. STAT. § 14-10-112 (2015)), Kentucky (KY. REV. STAT. ANN. § 403.180 (West2015)) and Missouri (MO. REV. STAT. § 452.325 (2015)). Other standards are such as the “unfair” standard adopted in Arizona (ARIZ. REV. STAT. ANN. § 25-317 (2015)).
36 As for the practice and the effects, see, for example, JAMES DWYER, FAMILY LAW: THEORETICAL, COMPARATIVE, AND SOCIAL SCIENCE PERSPECTIVES 686 (2012).
37 This is so called “private ordering.” See Mnookin & Kornhauser, supra note 9.

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

2016]

unknown

Seq: 1328-MAR-16

DIVORCE CUSTODY DISPUTES

16:05

949

legal system for divorce custody.38 First, I will overview the relevant cases of the Supreme Court of the United States. Then, I willsummarize how the roles of children’s wishes have been consideredin state court cases.
i.

Supreme Court of the United States

There has been no Supreme Court case directly addressing therole of children’ wishes in divorce custody. However, children’s
voices in broader contexts have been discussed in some cases. Although the issue of children has mostly appeared as conflicts between parents (i.e., parents’ rights to control their children’s
upbringing) and state intervention (i.e., parens patriae),39 children’s
voices were mentioned in the three cases below.
Yoder40 was a case where three Amish parents were convicted,
under the state compulsory school attendance statute, for not sending their children to school. The majority opinion delivered by
Chief Justice Burger took the position of not considering children’s
wishes because (i) it was the conflict between the State and theparents and (ii) the children were not parties to the litigation.
However, in his dissenting in part opinion, Justice Douglas insisted
the importance of hearing their children’s wishes on whether or notthey prefer to attend school:[A]s the child has no other effective forum, it is in this litigationthat his rights should be considered. And if an Amish childdesires to attend high school, and is mature enough to have thatdesire respected, the State may well be able to override the parents’ religiously motivated objections . . . . [O]n this importantand vital matter of education, I think the children should be entitled to be heard.41

Another case was Prince,42 a case where the custodian of anine-year-old girl was convicted under state child labor laws for
38 Historically, the legal standards for divorce custody in the U.S. have changed largely. The
custody rule was simple in the early nineteenth century: the father was entitled to child custody(the paternal-preference standard). Later, the rule shifted to the maternal-preference standard
in the twentieth century. Then, up to the present, the gender-neutral “best interests of the child”
standard spread in the U.S., under which children’s wishes began to be taken into account. For
the history, see Robert H. Mnookin, Child-Custody Adjudication: Judicial Functions in the Faceof Indeterminacy, 39 LAW & CONTEMP. PROBS. 226, 232–37 (1975).
39 See Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510(1925); Troxel v. Granville, 530 U.S. 57 (2000).
40 Wisconsin v. Yoder, 406 U.S. 205 (1972).
41 Id. at 242–44.
42 Prince v. Massachusetts, 321 U.S. 158 (1944).

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

unknown

Seq: 1428-MAR-16

16:05

950 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 17:937
letting a girl sell religious magazines on the street. The majority
opinion delivered by Justice Rutledge admitted the broad authorityof the state to regulate children’s activities and sustained the state
laws, reducing this case “to the question whether the presence ofthe child’s guardian puts a limit to the state’s power.”43 But Justice
Murphy, in his dissenting opinion, attached weight to the girl’swishes and religious freedom after examining the result of the girl’s
testimony, and insisted that the state laws cannot be sustained.
Murphy stated, “it is undisputed, furthermore, that she did this ofher own desire and with appellant’s consent. She testified that she
was motivated by her love of the Lord and that He commanded
her to distribute this literature; this was, she declared, her way ofworshipping God.”44
The third case was Michael H.,45 which featured a dispute overthe visitation rights between a man who was the putative natural
father (ninety-eight percent probability according to a blood test)of the child and a man who was the husband of the mother. The
plurality opinion delivered by Justice Scalia highlighted the importance of the family unit established by marriage, denied dual fatherhood, and denied visitation rights of the putative natural
father. In this case, the child herself (through her attorney andguardian ad litem) was also a party to the litigation, and claimed
that she had a due process right to maintain full filial relationshipwith both of the two men. However, no Justice really focused on
the role of the child’s wish. The plurality opinion just stated thechild’s due process challenge was “if anything, weaker than” theputative natural father’s, and rejected the argument of dual
fatherhood.46
To sum up, the Supreme Court has been very reluctant to discuss the role of the children’s wishes. Yoder avoided consideringchildren’s wishes by strictly limiting the scope of the case to parents’ rights. Prince switched the focus to whether the presence ofthe child’s guardian puts a limit to the state’s power. Also, Michael
H. primarily focused on the rights of the putative natural father
even though the child herself was a litigating party as well.
On the other hand, the Supreme Court has still left a hugeroom for discussion over the role of the children’s wishes in the
43 Id. at 169.
44 Id. at 172.
45 Michael H. v. Gerald D., 491 U.S. 110 (1989).
46 Id. at 130.

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

2016]

unknown

Seq: 15

DIVORCE CUSTODY DISPUTES

28-MAR-16

16:05

951

judicial procedures.47 Considering there have been some Justices
like Douglas (in Yoder) and Murphy (in Prince) who insisted theimportance of children’s wishes, the Supreme Court might decideto give significant weight to the role of children’s wishes in the future if a suitable case was presented.
ii.

State Courts

There have been abundant court cases addressing custody ineach state, and state courts usually do consider children’s wishes insome way. State court cases can be roughly categorized into two
different groups: (a) those that view children’s wishes as a noncontrolling factor and (b) those that view children’s voices as a controlling factor. The view of children’s voices as non-controlling factor can be further classified into: (a-1) a non-controlling factor
having great weight; (a-2) one of numerous non-controlling factors;and (a-3) the last factor to be considered.48a.

Non-controlling factor

The prevailing position of state courts is to treat children’s
wishes as one of the factors to be considered, but not as the controlling factor, as long as the children are of sufficient age and capacity of exercising rational judgment. This view is adopted by the
UDMA as well. Section 402 of the UDMA explicitly stipulates
that child custody shall be determined in accordance with the bestinterests of the child. Then, it further suggests “[t]he wishes of thechild as to his custodian” as one of the five major factors to beconsidered by the court.49 Section 2.08 of ALI’s Principles of the
Law of Family Dissolution takes a more cautious view50 toward
children’s wishes, but it still recognizes matured children’s “firmand reasonable preference” as a factor to be considered.
47 Please note that Michael H. shall not be construed to limit the role of children’s wishes on
the divorce custody issue. Michael H. was not a case where the child’s choice between two
persons/parents was the issue. It was a case where the child insisted on having both of the two
persons as fathers rather than choosing one of them.
48 D. W. O’Neill, Child’s wishes as factor in awarding custody, 4 A.L.R. 3d 1396 (1965).
49 Other factors listed by the UDMA are: (1) the wishes of the child’s parent or parents as tohis custody; (2) the interaction and interrelationship of the child with his parent or parents, his
siblings, and any other person who may significantly affect the child’s best interest; (3) the child’s
adjustment to his home, school, and community; and (4) the mental and physical health of all
individuals involved. But, it should also be noted that the court shall consider “all the relevant
factors,” not limited to these five factors, under the UDMA.
50 See supra note 5.

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

unknown

Seq: 1628-MAR-16

16:05

952 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 17:937
At least the courts in the following states have explicitly taken
this position: Alabama, Alaska, Arkansas, California, Florida, Illinois, Indiana, Iowa, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New
York, North Dakota, Pennsylvania, Rhode Island, South Carolina,
South Dakota, Tennessee, Texas, Utah, and Wyoming.51
However, the weight given to children’s wishes as a non-controlling factor varies by court. Some courts give children’s wishes
significant weight (heavier than other factors) and others do not.
One view, (a-1), is that children’s wishes are entitled to great
weight even though they, standing alone, are not a controlling factor. For example, in New York, the Supreme Court of Orange
County stated, “while the express wishes of the children are notcontrolling in determining whether to modify custody, they are entitled to great weight, after consideration of the age and maturity of
the children and the potential for influence having been exerted on
the children” (emphasis added).52 Some states, including California and Hawaii, have a statute giving children’s wishes “dueweight.”53
Another view, (a-2), is that the trial courts have broad discretion in determining children’s custody in the best interests of thechildren, and the children’s wishes are a factor, just like many otherfactors, to be considered under such a broad discretion. For instance, in Alabama, the State Supreme Court has established a listof factors trial court may consider:
51 From the state court cases listed in O’Neill, supra note 48. E.g., Heyat v. Rahnemaei, 127
So. 3d 1209, 1223 (Ala. Civ. App. 2013); Helen S.K. v. Samuel M.K., 288 P.3d 463 (Alaska 2012);
Mathews v. Schumacher, 375 S.W.3d 31 (Ark. Ct. App. 2010); In re Patrick S. III, 160 Cal. Rptr.
3d 832 (Cal. Ct. App. 4th Dist. 2013); Schweinberg v. Click, 627 So. 2d 548 (Fla. Dist. Ct. App.
5th Dist. 1993); In re Marriage of Balzell, 566 N.E.2d 20 (Ill. App. Ct. 3d Dist. 1991); Baxendale
v. Raich, 878 N.E.2d 1252 (Ind. 2008); McKee v. Dicus, 785 N.W.2d 733 (Iowa Ct. App. 2010);
Penn v. Penn, 28 So. 3d 304 (La. Ct. App. 2009); Karanikas v. Cartwright, 61 A.3d 69 (Md. 2013);
J.F. v. J.F., 894 N.E.2d 617 (Mass. App. Ct. 2008); Fletcher v. Fletcher, 504 N.W.2d 684 (Mich.
Ct. App. 1993); Lundell v. Lundell, 387 N.W.2d 654 (Minn. Ct. App. 1986); Phillips v. Phillips, 45
So. 3d 684 (Miss. Ct. App. 2010); Farley v. Farley, 51 S.W.3d 159 (Mo. Ct. App. 2001); In re N.S.,
253 P.3d 863 (Mont. 2011); Colling v. Colling, 818 N.W.2d 637 (Neb. Ct. App. 2012); Ivory B. v.
Shameccka D.B., 993 N.Y.S.2d 173 (N.Y. App. Div. 2014); Hammeren v. Hammeren, 823
N.W.2d 482 (N.D. 2012); Ketterer v. Seifert, 902 A.2d 533 (Pa. Super. Ct. 2006); Waters v.
Magee, 877 A.2d 658 (R.I. 2005); Payne v. Payne, 674 S.E.2d 515 (S.C. Ct. App. 2009); Watson v.
Watson, 196 S.W.3d 695 (Tenn. Ct. App. 2005); In re S.N., 272 S.W.3d 45 (Tex. App. 2008);
Paryzek v. Paryzek, 776 P2d 78 (Utah Ct. App. 1989); Holiday v. Holiday, 247 P.3d 29 (Wyo.
2011).
52 Margaret M.C. v. William J.C., 972 N.Y.S.2d 396, 399 (N.Y. Sup. Ct. 2012).
53 CAL. FAM. CODE § 3042(a) (2011); HAW. REV. STAT. § 571–46(3) (2013).

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

2016]

unknown

Seq: 1728-MAR-16

DIVORCE CUSTODY DISPUTES

16:05

953

The sex and age of the children . . . [;] the characteristics andneeds of each child, including their emotional, social, moral, material and educational needs; the respective home environments
offered by the parties; the characteristics of those seeking custody, including age, character, stability, mental and physicalhealth; the capacity and interest of each parent to provide forthe emotional, social, moral, material and educational needs ofthe children; the interpersonal relationship between each childand each parent; the interpersonal relationship between the children; the effect on the child of disrupting or continuing an existing custodial status; the preference of each child, if the child isof sufficient age and maturity; the report and recommendation ofany expert witnesses or other independent investigator; available alternatives; and any other relevant matter the evidence may
disclose [(emphasis added)].54

In this list, children’s wishes are treated as one of the many factors,
and the Court of Appeals of Alabama has taken the position that“although the stated preference of a child regarding custody is tobe considered by a trial court, the child’s desires are notcontrolling.”55
Also, some courts have taken the position, (a-3), to treat children’s wishes as the last factor to be considered. These courts consider children’s wishes only in doubtful cases where the courts arehaving difficulties in determining the custodial parent because all
the other factors are in a state of equipoise.
For instance, the Supreme Court of Rhode Island in 1975 heldthat the trial court did not abuse its discretion in giving substantial
weight to the child’s preference, in a case where circumstanceswere so nearly “in state of equipoise” as to make it extremely difficult for the court to decide the custody of the child.56 Also, more
recently in a 1993 Michigan Court of Appeals case, the custody ofchildren was awarded to the mother in a case where both parents
were equal with regard to all custody factors except for reasonable
preference of the children, which was in favor of the mother.57 Another example is a Pennsylvania case in 1995: the Superior Court
took the position that children’s preference would have to “tip theevidentiary scale” in favor of the father in a case where record
showed each parent equally suitable to have custody.58
54 Ex parte Devine, 398 So.2d 686, 696–97 (Ala.1981).
55 Heyat, 127 So. 3d at 1223.
56 Goldstein v. Goldstein, 341 A.2d 51, 53 (R.I. 1975).
57 Fletcher v. Fletcher, 504 N.W.2d 684 (Mich. Ct. App. 1993).
58 Myers v. DiDomenico, 657 A.2d 956, 958 (Pa. Super. Ct. 1995).

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

unknown

Seq: 18

28-MAR-16

16:05

954 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 17:937
b.

Controlling factor

Some courts have treated children’s wishes as the controllingand decisive factor for the courts to consider when determining
custody. As of 2001, twelve states had a statute considering children’s preference as the key and controlling determining factor.59
But currently, Georgia seems to be the only state that has such a
statute. Georgia has established a specific statute that stipulates
children reaching a certain age (fourteen years) must be allowed tochoose the post-divorce custodial parent by themselves.
In Georgia, the Supreme Court has taken the position that it
was mandatory for the courts to follow children’s choices of thecustodial parent as long as the chosen parent is not unfit to havethe custody of the children60 under the statute, which stipulates at
the time the following:
In all such cases and in cases where a change in custody issought, where the child has reached the age of fourteen years,
such child shall have the right to select the parent with whomsuch child desires to live and such selection shall be controlling
unless the parent so selected is determined not to be a fit andproper person to have the custody of said child [(emphasis
added)].61

The language of the statute has been slightly revised to be thefollowing:
In all custody cases in which the child has reached the age of 14
years, the child shall have the right to select the parent withwhom he or she desires to live. The child’s selection for purposes of custody shall be presumptive unless the parent so selected is determined not to be in the best interests of the child[(emphasis added)].62

But, the fundamental concept of the statute has been maintained,
which explicitly states “the child shall have the right to select theparent” and under which the exercise of court discretion againstchildren’s choice is considered as an exception.

59 Dulaney, supra note 7, at 819–20. States other than Georgia listed therein currently do
not seem to have such a statute anymore; it seems these states shifted to a non-controlling factor
system under the best interests standard.
60 Froug v. Harper, 140 S.E.2d 844 (Ga. 1965).
61 Id. at 846.
62 GA. CODE ANN. § 19-9-3 (2011).

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

2016]
C.

are:

unknown

Seq: 1928-MAR-16

DIVORCE CUSTODY DISPUTES

16:05

955

Comparison of Legal Systems in Japan and the U.S.

Major differences between legal systems in Japan and the U.S.

First, regarding divorce law in general, parents have broad discretion to determine divorce conditions both in Japan and the U.S.
However, there is a critical difference in the legal systems between
the two countries: parents may divorce without any involvement of
the court in Japan, while divorcing parents always have to obtain adecree from the court in the U.S.
Second, concerning children’s wishes, courts in both Japan andthe U.S. ordinarily hear children’s wishes in a certain way, particularly if the children are mature enough to express their own views.
There are similarly opposing positions regarding the role of children’s wishes in both Japan and the U.S. One position is that the
court takes children’s wishes into account as one of the non-controlling factors to determine the best interests of the child. But, theweight given to children’s wishes is not always the same. The court
would consider it heavier as the age of the children becomes older,
and as the court is more inclined to consider “the best interests ofthe child” in a psychological way to maximize the subjective welfare of the child.63 Another position is that the court considers
children’s wishes as a controlling factor based on the idea that children at a certain age should have the right to choose the custodial
parent. Japanese courts and the majority of the U.S. state courts
adopt the first position, but a few U.S. state courts, such as those inGeorgia, employ the second position.
Third, joint custody is not permitted in Japan while it is allowed or even recommended in the U.S.64
III.

BEHAVIORAL MODELS FOR DIVORCE NEGOTIATIONSA.

Two Models

This Section III offers an outline of parents’ behavioral principles, before conducting the five-factor bargaining analyses in Sec63 As for the idea of the “psychological best interests test,” see ROBERT H. MNOOKIN & D.
KELLY WEISBERG, CHILD, FAMILY, AND STATE 474–75 (6th ed. 2009).
64 See MACCOBY, supra note 6 at 284–85. For the argument against the tendency in the U.S.
of presumption in favor of joint custody, see Robert H. Mnookin & Eleanor E. Maccoby, Facing
the Dilemmas of Child Custody, 10 VA. J. SOC. POL’Y & L. 54, 74–75 (2002).

R\\jciprod01\productn\C\CAC\17-3\CAC313.txt

unknown

Seq: 2028-MAR-16

16:05

956 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 17:937
tion IV.65 In this section, I introduce and examine two models
from the area of law and economics, which would facilitate theanalysis of parents’ behaviors in custodial negotiations. The twomodels are (i) the self-interested person model and (ii) the altruistic person model.
1.

Self-Interested Person Model

Conventional studies of law and economics borrow the idea ofhomo economicus from neoclassical economics. They assume people behave rationally to maximize their own interests through a
cost-benefit analysis (rational choice theory).66 It would be truethat people do care about self-interests. I call this behavioral
model the self-interested person model.
Based on this model, a parent would behave in a way to maximize his or her self-interests when negotiating in divorce custody
disputes. Namely, a parent would seek child custody as long as hisor her own financial and emotional interest of obtaining child custody exceeds his or her own financial and emotional costs for seeking it. If both parents wanted to continue living with the child, theywould fight for the custodial right in order to satisfy their selfinterests.
2.

Altruistic Person ModelOn the other hand, studies of behavioral economics emphasizethat real people are different from homo economicus. They consider people’s self-interest to be bounded, and that people often
behave in a way to achieve fairness and other people’s interest as
well.67 Actually, one well-known behavior of an animal or ahuman being in the area of ethology is parents’ behavior to protect
children (so called, “parental investment”).68 It would be true thatparents often do care about their children’s interest.
To simplify, I define a person who behaves in a way to maximize a third party’s interest as an altruistic person. In other words,
under this altruistic person model, a parent would behave in a way
to maximize children’s interests when negotiating in divorce cus65 Mnookin, supra note 9. It seems Mnookin and Kornhauser’s analysis was mostly based on
the model of a self-interested person.
66 See, e.g., RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 3–4 (8th ed. 2011); A.
MITCHELL POLINSKY, AN INTRODUCTION TO LAW AND ECONOMICS 10–11 (4th ed. 2011).
67 See, e.g., Christine Jolls et al., A Behavioral Approach to Law and Economics, 50 STAN. L.
REV. 1471, 1479 (1998).
68 See Robert Trivers, Parental Investment and Sexual Selection, in SEXUAL SELECTION AND
THE DESCENT OF MAN 136–79 (Bernard Campbell ed., 1972).

R\\jciprod01\productn\C\CAC\17-3\CAC313.txt

2016]

unknown

Seq: 2128-MAR-16

DIVORCE CUSTODY DISPUTES

16:05

957

tody disputes. However, even if the parent were an altruistic person, the parent’s specific behaviors in bargaining would vary basedon each parent’s thoughts on how “to maximize the children’sinterests.”
B.

Japanese Parents’ Behaviors: Analysis of Report and
Biographies
1.

Questions and Methodology

The first question is to what extent the two behavioral models
above (i.e., self-interested person or altruistic person) would fit
into the reality of the parents’ custodial negotiations. I assume thisis not a black-and-white question. Each negotiating party would
exhibit some aspects of both models. Some would have stronger
self-interested person characteristics, and others would be more
like the altruistic person. Actually, social science studies, which
compared the negotiation culture of Japan and the U.S., havefound that Japanese negotiators are generally more altruistic andless self-interested than American negotiators.69
However, the next question is how parents actually behave
based on the altruistic person model. In order to examine thisquestion and the reality of parents’ negotiations in Japan, this paper analyzes two different kinds of materials.
The first material is a report of a survey conducted by Family
Problems Information Center (“FPIC”).70 There have been several psychological studies related to post-divorce children’s developments, but this FPIC’s report is the only empirical study in Japanthat covers the communications between parents and children at
the time of divorce. FPIC conducted surveys by way of questionnaires and interviews with people who experienced divorce in thepast either as a parent or a child. I mainly review quantitative datain the FPIC report in order to find out tendencies of parents’ behaviors upon divorce.
69 Wendi Adair et al., Starting Out on the Right Foot: Negotiation Schemas When Cultures
Collide, 2 NEGOT. & CONFLICT MGMT. RES. 138 (2009); Jeanne Brett & Tetsushi Okumura,Inter- and Intracultural Negotiation: U.S. and Japanese Negotiators, 41 ACAD. MGMT J. 495(1998).
70 SHADAN HOJIN KATEI MONDAI JOHO SENTA [FAMILY PROBLEMS INFORMATION CENTER(“FPIC”)], RIKON SHITA OYA TO KODOMO NO KOE WO KIKU [HEARING VOICES OF DIVORCED PARENTS’ AND CHILDREN’S] (2005).

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

unknown

Seq: 2228-MAR-16

16:05

958 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 17:937
Second, from a qualitative perspective, I analyze biographies
of Japanese people who experienced (i) parents’ divorce when they
were children; or (ii) their own divorce after having children. I collected biographies commercially published in Japan recently ofpeople such as celebrities, actors, entertainers, artists and athletes—these biographies were found on online search engines byusing the keywords “biography [jijoden or jiden]” and “divorce[rikon].” Out of the total twenty-six biographies collected, sevenbiographies contained relevant descriptions of communication between parents and children upon divorce (see Section VI. Annex
for the list of biographies reviewed).
Considering feasibility,71 I believe the use of biographies is afairly good qualitative methodology to look at parents’ behaviors
upon divorce. The main strength of using biographies is that theauthors’ own vivid descriptions remain unaffected by survey questions or interviewers’ focuses. The weakness of this methodology
should also be noted. The primary weakness is the potential inaccuracy of the descriptions; the authors’ memories at the time ofwriting might not be precise. In addition, particularly in commercial biographies, authors might intentionally distort facts to makethemselves look good in the public. Sample bias might be an issue
as well; stories of celebrities might not represent the behaviors ofJapanese parents.
2.
i.

Analysis

FPIC’s Report

By reviewing the quantitative data of the FPIC’s Report, I
consider parents’ behavior in the divorce negotiations can be classified roughly into two categories: (a) behavior to avoid children’s
involvement; and (b) behavior to encourage children’s
involvement.
a.

Parents’ Behavior to Avoid Children’s Involvement

The first type of parent behavior is to exclude children fromthe divorce process. According to the FPIC’s report, only fiftyseven percent of divorced parents in Japan discussed their divorce
71 Even though FPIC succeeded in conducting interviews and surveys, their study was supported by two major nation-wide newspapers (The Asahi Shimbun and The Nikkei). It is hard
to conduct large-scale interviews on private family-related issues (especially, divorce-related issues) in Japan. In addition, the conciliation procedure (chotei) at the family court is completely
private, and the family court’s adjudications in the adjudication procedure (sosho) are rarely
publicized.

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

2016]

unknown

Seq: 23

DIVORCE CUSTODY DISPUTES

28-MAR-16

16:05

959

with the children before or upon divorce.72 It means the rest (i.e.,
forty-three percent) do not. Twenty-eight percent of parents havenever explained divorce to children even after the divorce.73 The
major reasons for not explaining divorce to children, listed in thereport, were reasons such as “I thought the child would not be able
to understand because the child was little,” “I’m worried how muchthe child understands it,” and “I have no idea how much the child
can understand it and whether I should explain it to him or not.”74
The majority of these reasons are based on the parents’ concern
about the children’s capacity to understand divorce. Also, anotherreason listed is “I couldn’t stand telling it because I felt so sorry forthe child.”
It may seem that these parents exclude their children from thedivorce process. But, when you see their reasons, it is not because
they do not care about their children’s interests, but because they
do not want the children to be confused by an incomprehensible
issue and to be hurt emotionally.
b.

Parents’ Behavior to Encourage Children’s Participation

The second type of parents encourages children to become involved in the divorce process. As mentioned above, it is true that
more than half (fifty-seven percent) of divorced parents in Japan
explained about their divorce to the children before or upon the
divorce. Their reasons, as listed in the report,75 can be classified
into types, such as: (i) to mitigate children’s discomfort and anxiety
upon divorce (i.e., “I felt the explanation based on the fact wasnecessary in order for the children not to feel anxious by their
groundless assumptions”); (ii) to respect children’s right to know
(i.e., “I thought even little children could understand about divorce
if I explained it in a proper way. And I thought children had theright to hear it because they would be impacted by the divorce”);and (iii) to respect children’s right to self-determination (i.e., “Divorce is a big issue for children. If I were a child, I would not want
the parents to decide about me in my absence”).
Some parents not only explain their divorce, but also ask children for their opinions. According to FPIC’s report, upon the par72 FPIC, supra note 70, at 10. Out of ninety-nine parents (valid respondents), thirty-one
explained “well in advance” and twenty-five explained “just before” the divorce.
73 Id. Out of ninety-five parents (valid respondents), twenty-eight “did not explain” it to thechildren.
74 Id. at 11.
75 Id. at 12–13.

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

unknown

Seq: 24

28-MAR-16

16:05

960 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 17:937
ents’ divorce, (i) thirty-four percent of the children were asked
their opinion on the divorce;76 and (ii) forty-four percent of thechildren were asked their opinion regarding which parent to livewith after the divorce.77
These parents encourage their children to participate in the
divorce process or at least inform their children about the divorce.
ii.

Biographies

Parents’ behaviors and the communications between parents
and children described in the biographies78 can be classified into
the same two types as above: (a) to avoid children’s involvement;and (b) to encourage children’s participation.
a.

Parents’ Behavior to Avoid Children’s Involvement

In three cases, parents did not explain their divorce to children
at all, let alone hear the children’s wishes.
In Kanji’s case, he divorced his wife when his daughter was
thirteen or fourteen years old. Before the divorce, he tried to explain it to his daughter, Hiroko, but failed to do so. It is describedas follows:79
We talked and came to the conclusion that we would separate, but
one issue was our daughter. At least, I wanted to tell Hiroko
about our separation properly. Hiroko was on summer vacation
at the time, and she was in a place called Herman in northern
Massachusetts to participate in a summer camp. I went to the
U.S. by myself.
....
Daughter brought a friend with her. . . . We entered an Italianrestaurant. When I tried to start talking about divorce while wewere eating, Daughter digressed. She kept talking about the camp
happily. I could not find a moment to talk, and could not tell her
in the end. Maybe, Hiroko knew about it, but it was difficult forher to hear the conclusion that she was the most afraid of.

In DAI’s case, where the parents divorced when he wasaround the age of three, he did not receive any explanations upon
the parents’ divorce. The description goes as follows:80
76 Id. at 19. Out of eighty-nine children (valid respondents), thirty were asked theiropinions.
77 Id. at 20. Out of ninety-one children (valid respondents), forty were asked their opinions.
78 The original languages of the biographies are Japanese. All of the excerpts herein fromthe biographies are my translations.
79 KANJI INOKI, ANTONIO INOKI JIDEN 254–58 (1998).
80 DAI, BREAK POINT: JINSEI GA KAWARU SHUNKAN 20–24 (2013).

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

2016]

unknown

Seq: 25

28-MAR-16

DIVORCE CUSTODY DISPUTES

16:05

961

Before I entered into kindergarten, my parents got divorced.
....
In a darkish room of a housing development apartment with little
sunlight, Mother was crying and Father was shouting. My mind
went blank, and I could not do anything. I was opening my eyesand standing still.
Dim memories. I found myself leaving home led by Mother byhand,
Mother and I, and Brother and Father, our family was split intotwo.
I still do not know now the meaning of the words Father shouted
at the time (“Why are you still talking about such a thing!!”) or
the reasons why they got divorced. I have never tried to find out
about it.

Similarly, in Akane’s case, where the parents divorced when
she was around the age of two, she did not receive any explanations upon the parents’ divorce. The description goes as follows:81“Father hasn’t come back after he went to a bathhouse,” Mothertold me quite disinterestedly. It was the winter when my age wastwo.
The first memory of my life began on the previous night.
In a small bathroom of the public housing, my parents were quarreling very hard. They were almost punching each other, ormaybe they were actually punching or kicking each other . . . .
Mother: “What are you doing? Until when, that kind of things!
Aren’t you ashamed of yourself?”
Father: “Shut up! It is useless to say such a thing now!”
My parents’ shouts could be heard outside the bathroom. I, alittle kid, was terrified of the loud sounds, the bang and slammade by their fight. And I covered my ears in bed.
....
I never saw Father after the next morning of the severe marital
quarrel. Father has been at a bathhouse for more than twenty
years now.
Of course, I did not know the word divorce until very later, and I
was thinking again and again as a kid, “Where did Father actually go?”In these three cases, the parents did not explain their divorce
to the children. They decided to divorce by themselves and determined child custody without any involvement from the children.
It is not clear why the parents behaved in this in the latter twocases, because they are described from the little children’s view81 AKANE OSAWA, HAHA HITORI KO HITORI 6–8 (2009).

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

unknown

Seq: 26

28-MAR-16

16:05

962 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 17:937
point. But, the description of Kanji’s case has an interesting implication. It seems that Kanji, the father, did not think it was
important to involve his daughter in the divorce process, eventhough he cared much about the daughter’s welfare. He even went
to the U.S. from Japan in order to see the daughter. However, he
did not want her to participate in the divorce discussions, but simply wanted to inform her about the parents’ decisions (and heeventually failed to do so).
b.

Parents’ Behavior to Encourage Children’s Participation

In four cases, children’s wishes were respected and children
themselves decided the post-divorce custodial parent.
In Taichi’s case, whose parents divorced when he was at theage thirteen or fourteen, his mother asked him about the custodial
preferences and he himself decided to live with the mother. The
description goes as follows:82
When I was in my second year of junior high school, Father andMother got divorced at last.
Mother: “Which of us do you want to accompany, Taichi?”
Me: “Mom, of course.”
I decided to accompany Mother without hesitation, and after that,
I met Father much less frequently. I still think Father is a greatguy, but I could not respect his behaviors toward Mother. He
sometimes spoke in an autocratic manner, and there was no reason for me to dare to choose Father instead of Mother.

In Mariko’s case, whose parents divorced when she was at theage of thirteen, she herself chose to live with her father. Her feeling at the time is described as follows:83
After the divorce of my parents, I lived with Father and my elder
sister. . . . Because I did not have a good relationship with Father,I actually wanted to accompany Mother. But, I decided in theend to live with, not Mother, but Father because I wanted to stay
together with my sister who I liked very much. My sister, who
was three years older than me, did not choose Mother, but chose
Father.

The third one, Hikaru’s case is a unique one. Her parents divorced when she was seventeen, and she chose to live by herself
after the parents’ divorce.84 Probably, this choice was possible for
82 TAICHI ISHIMOTO, FURYO ROKU: KANTO RENGO MOTO RIDA NO KOKUHAKU 37 (2012).
83 MARIKO ISHIHARA, FUZOROINA HIMITSU 23–24 (2006).
84 Technically, the legal custodial parent should have been determined upon the divorce, but
it is not mentioned in the biography.

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

2016]

unknown

Seq: 27

28-MAR-16

DIVORCE CUSTODY DISPUTES

16:05

963

her because she was already working as a well-known successful
singer at the time. Her choice is described as follows:85
I was seventeen, and I was old enough to choose which parent tosupport. Father and Mother told me their arguments respectively.
Their stories were totally different from each other, and I was
confused about what was true and what was a lie. I was
distracted.
I tried to be in a neutral position. . . . Honestly, I wanted to be
involved with this issue as little as possible. Most importantly, I
hated that they were bringing a dispute into my workplace. It wasannoying.
Soon after Mother left our house, I also left home and started tolive in a hotel.

Aya’s case is also similar to Hikaru’s case. Her parents divorced when she was fifteen, and she chose to live by herself:86“Which of us do you want to accompany if Dad and Mom got
separated?”
Mother often asked us this question whenever she quarreled with
Father . . . .
My answer to her insensitive question was always the same: “Iwill accompany Father.”
Father looked like a weak person, and as a child, I thought thatsomeone would need to be with him to support . . . .
My answer to “accompany Father” became a lie as a result. I did
not accompany Father, Mother or Grandmother, but decided tolive by myself. I was fifteen at the time. I quit high school towork to survive; I began to work seriously as a model and earned
living expenses.

In these four cases, parents involved the children in their divorce processes. Unfortunately, the reasons why the parents behaved in this way were not very clear from the descriptions because
they were written from the children’s viewpoint. But, at least, it
seems that parents treated children as autonomous persons: (i) parents asked children for their preferences of the custodial parent;(ii) children clarified their preferences; (iii) parents respected children; and (iv) parents allowed children to follow the children’s
preferences.

85 HIKARU UTADA, TEN 17 (2009).
86 AYA SUGIMOTO, RIBERARU RAIFU, LIBERAL LIFE 34–35 (2010).

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

unknown

Seq: 28

28-MAR-16

16:05

964 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 17:937
iii.

Altruistic Person Model: Paternalistic and Autonomic

Based on the above analysis of the FPIC’s report and biographies, the specific behaviors of an altruistic person would vary primarily based on parents’ thoughts concerning children’s autonomy
and protection. Some parents would value children’s protection
paternalistically and think that children’s involvement in divorce
negotiations would be useless and harmful to the children. Others
would value children’s autonomy and think that children’s participation in determining child custody would serve the best interestsof the children.
Therefore, the altruistic person model could be further subdivided into (i) paternalistic altruistic person model and (ii) autonomic altruistic person model.
IV.

BARGAINING IN THE SHADOW OF CHILDREN’S VOICESA.

Five-Factors Framework
1.

Overview

In this section, I attempt to analyze the divorcing parents’ informal bargaining and negotiations outside the court under eachlegal system, focusing on how children’s wishes are valued in judicial procedure. This paper aims to predict the reality of divorcing
parents’ behaviors through a basic law and economics approach by
employing the five-factor analytical framework of Mnookin andKornhauser.87
To be specific, this paper applies the five-factor framework toeach of the behavioral models discussed in Section III. The fivefactor framework was suggested for divorcing parents’ bargaining
in the shadow of the law: (1) preferences of the divorcing parents;(2) bargaining endowments created by legal rules; (3) degree of
uncertainty concerning the legal outcome; (4) transaction costs;
and (5) strategic behavior.
2.

Review of Five Factors

These five factors are the elements suggested for the analysis
of divorcing negotiations in general. I will first review each factor
87 Mnookin & Kornhauser, supra note 9.

R\\jciprod01\productn\C\CAC\17-3\CAC313.txt

2016]

unknown

Seq: 2928-MAR-16

DIVORCE CUSTODY DISPUTES

16:05

965

and examine the utility of each factor when focusing on the parents’ custodial negotiations and children’s wishes.
i.

Preferences of the Divorcing Parents

In simplified terms, there are two elements to be settled upondivorce: money and custody. Monetary issues include property division, child support and alimony.88 The other major issues arechild custody and visitation. The first factor is parental personal
preferences in regard to these issues.
Regarding child custody, most parents would be willing tomaintain some relationship with their children, but the degree ofsuch desire would vary with each parent. Some would prefer tomaintain the custodial rights of the children at any cost. But others
would be satisfied with visitation rights or would prefer to tradecustodial rights for money to some extent: for instance, (i) a husband might want to give up child custody and be satisfied withsome visitation rights, considering that he could spend his timewith the children only on the weekend anyway due to his work
situation, or (ii) a wife might want to give a husband more frequent
visitation rights in order for him to provide her with more generous
child support or alimony.89
However, these parental preferences are basically just personal preferences. Therefore, the preferences concerning childcustody would not be affected by the legal systems to hear children’s wishes in the judicial procedures.90
ii.

Bargaining Endowments Created by Legal Rules

The second factor is the bargaining endowment created by legal systems. Divorcing parents always negotiate in the shadow of
the law; each side makes plausible claims based on the expected
legal outcome if the case were to go to court. At the bargaining
table, each parent has an alternative option to go to court if theycannot reach an agreement. Therefore, neither parent would agree
to a divorce arrangement (concerning both monetary and custodyissues) that is worse than the expected legal outcome at the court.
Even for the informal negotiations outside the court, legal rules
88 There is no such legal concept of alimony payment to the divorcing partner in Japan, while
there is in the U.S.
89 Mnookin & Kornhauser, supra note 9, at 966–68.
90 Having said that, the law regarding monetary issues such as child support might affectparental preferences; parents might prefer the custodial rights more if the legal standard forchild support is set high.

R\\jciprod01\productn\C\CAC\17-3\CAC313.txt

unknown

Seq: 30

28-MAR-16

16:05

966 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 17:937
and systems provide bargaining endowments, power, and chips toeach party.91
Basically, where the legal system tries to hear children’s
wishes regarding child custody, the preferred parent is more likely
to be awarded child custody if the case goes to court. Thus, generally speaking, the parent preferred by the child would havestronger bargaining endowments for child custody.
iii.

Degree of Uncertainty Concerning the Legal Outcome

The third factor is the degree of uncertainty if the case went tocourt. If the court had disclosed simple, clear, and straightforward
rules or guidelines related to the case, it would be easier for parties
to predict the legal outcome of the court. However, there is always
a certain uncertainty concerning the court decisions because no
precedent would be exactly the same as the current case.92
If the uncertainty were lower, negotiating parties would have astronger tendency not to go to court. In a case where the legal
outcome can be clearly predicted by each party, there is no point
for the parties to bear the additional transaction costs mentioned in
the fourth factor below to pursue a lawsuit.93
Under the legal system in which the court takes into accountthe children’s wishes as just one of the non-controlling factors todetermine the “best interests of the child,” the uncertainty of thechild custody would be high. But, the uncertainty would decreaseas the court gives greater weight to children’s wishes when deciding
the custodial parents.
iv.

Transaction Costs

Each party is required to bear all the transaction costs (including both financial and emotional costs) incurred for the case. In
general, the longer the negotiations or disputes take, the higher
transaction costs become. In particular, the transaction costs
would increase if the case went to court.94 With regard to financial
costs, parties would need to pay the attorneys’ fee largely increased
for the litigation, as well as the filing fee and other fees. As foremotional costs, fighting in litigation for a long time would be certainly a heavy emotional burden on the parties. Also, emotionalcosts would usually be higher in the divorce case than in other91 Mnookin & Kornhauser, supra note 9, at 968–69.

R

92 Id. at 969–71.
93 See, e.g., POLINSKY, supra note 66, at 135–46.
94 Mnookin, supra note 9, at 971–72.

R\\jciprod01\productn\C\CAC\17-3\CAC313.txt

2016]

unknown

Seq: 31

DIVORCE CUSTODY DISPUTES

28-MAR-16

16:05

967

types of disputes because they relate to a party’s attachment to thechildren and to the anger and reprobation to the other party.
The degree of estimated transaction costs for litigation would
affect the informal negotiations outside the court. First, a party
who can afford more transaction costs would have an advantage inthe bargaining because he would have alternative options to continue the negotiations for a longer period or to bring the lawsuit,
while the other party would lose such options at some point. Second, if the transaction costs for litigation were much higher thancontinuing informal negotiations, parties would tend to avoid going
to court.
Hearing and valuing children’s wishes in the judicial process
would certainly affect the degree of parties’ transaction costs oflitigation.
v.

Strategic Behavior

The last and most critical factor for this paper’s analysis is thestrategic behavior of parents during negotiations. During informal
negotiations outside the court, parties try to influence and convince
the counterparty not only by claiming rules and norms but also byusing a variety of tactics including bluffing and threatening.95
Under the legal systems to hear children’s wishes, how to“use” the children might be the key of the negotiation tactics tomaximize or exaggerate the parents’ bargaining endowments. But,
the strategic behavior of parents would differ depending on theparents’ characteristics.
B.

Analysis

By using this framework and the three behavioral models of
parents’ characteristics (self-interested person, paternalistic altruistic person, or autonomic altruistic person) described in Section III,
this paper predicts how each design of the legal system to hear children’s wishes would affect divorcing parents’ bargaining behaviors.
As for the five-factor framework, I omit the first factor, the parental preferences, which would not have an impact on this analysis.
I analyze the specific legal systems in a following order: (i) theJapanese system after the 2013 reform (compared to the previous
system); (ii) the Japanese system compared to the U.S. system (in95 Id. at 972–73.

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

unknown

Seq: 32

28-MAR-16

16:05

968 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 17:937
cluding comparison of attorneys’ role); and (iii) the controlling factor system compared to the non-controlling factor system.
1.

Japanese System after 2013

As described in Section II-A, the family court system in Japanwas reformed in 2013. Under the new system, children’s procedural rights to be heard in the divorce custody cases are guaranteed:(i) children at the age of fifteen and older are entitled to be heard
by the family court; (ii) the family court shall endeavor to take thechildren’s intentions into consideration even if they are below theage of fifteen; (iii) children around the age of ten are allowed toparticipate in the case as an independent “Interested Party;” and(iv) children may have an attorney when participating in the case.
With regard to the role of children’s wishes, the court considers children’s wishes as one of the factors to determine the bestinterests of the child and to decide the custodial parents. However,
it is said that the older the children are, the heavier weight the
court gives to the children’s wishes; in particular, the court respects
the wishes of children at the age of ten and older.
How would parents negotiate the child custody under this new
Japanese system?
i.

Bargaining Endowments Created by Legal Rules

Under the Japanese system, the court certainly takes into account the child’s wish as one of the factors to determine the bestinterests of the child. Therefore, obviously, a parent preferred by
the child more than the other parent would at least have an advantage in this one factor, and would more likely be awarded childcustody if the case went to court.
Thus, the parent preferred by the child would have stronger
bargaining endowments for child custody. The older the children
are, the stronger endowments the parent obtains; in particular, aparent preferred by the child at the age of ten and older would
have relatively strong endowments.
ii.

Degree of Uncertainty Concerning the Legal Outcome

Because the Japanese system uses the “best interests of thechild” standard, in which the court has broad discretion to determine the best interests of the child from numerous factors, the uncertainty of child custody would basically be high.
Having said that, the uncertainty would decrease as the court
gives greater weight to children’s wishes than to other factors.

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

2016]

unknown

Seq: 33

28-MAR-16

DIVORCE CUSTODY DISPUTES

16:05

969

Therefore, the older the children are, the less uncertain the court
decision becomes; to be specific, it would be highly probable forthe court to adjudicate to give child custody to the preferred parent
when the child at the age of ten clearly expressed his or her
preference.
iii.
a.

Transaction Costs

Self-Interested Person Model: Costs for Parents

The transaction costs of divorce litigation for parents would behigher under the Japanese system after 2013 than those before
2013. Therefore, based on the self-interested person model, parents would be more reluctant to go to court under the 2013 systemthan under the previous system.
First, the transaction costs for parents would be higher. Underthe 2013 system, the child may participate in the procedure as anindependent party, and the court may appoint a representative attorney for the child. If the child (and the attorney) participated in
the case, the structure of the dispute would change from two-party
negotiations to three-party negotiations. Multiparty negotiations
are usually more difficult to settle and resolve due to their complexity. Consequently, parents would be required to bear more
fees to their own attorneys, and to spend more time and energy forthe litigation.
Second, because of the system’s preference for children’s
wishes, the emotional costs of parents at the court would be highunder the 2013 system. The new system guarantees children of allages to be heard, under which children’s preferences would be
more prone to be revealed to the parents. For instance, the parent
not chosen by children would be hurt emotionally, especially ifchildren’s wishes became the focal point of the arguments and children stated their wishes explicitly in the procedures. Particularly,
the emotional cost of parents would be high if the child were at theage of fifteen, the age for the mandatory hearing by the family
court.
b.

Altruistic Person Model: Costs for Children

The transaction costs for children would also be higher.
Under the 2013 system, children would be required to bear theemotional burden of expressing their views in judicial procedures.
Children at the age of fifteen must bear this emotional burden. In
particular, when children decided to explicitly express their preference of the custodial parent, their emotional burden would be\\jciprod01\productn\C\CAC\17-3\CAC313.txt

unknown

Seq: 34

28-MAR-16

16:05

970 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 17:937
quite high. In addition, if the child were involved in the case as anindependent party, he or she would be exposed to the transaction
costs of time and energy to participate in the litigation.
Thus, based on the paternalistic altruistic person model, parents would be reluctant to go to court under the 2013 system.
But, at the same time, from the perspective of children’s autonomy, the benefits for children to go to court would be higher
under the 2013 system because they are guaranteed to express theirwishes if the case went to court. Therefore, based on the autonomic altruistic person model, parents would balance the costs andbenefits for children to go to court.
iv.
a.

Strategic Behavior

Self-Interested Person Model: Parent’s Interests

Assuming a parent, as a self-interested person, is eager to obtain custody of the child for his or her own interests, that parent
would employ strategic behaviors to maximize his or her odds ofgetting child custody. Under the Japanese system, where the court
hears children’s wishes as one of the non-controlling factors, thatparent would try to “use” the child’s voice to increase his or her
odds.
For example, one parent might try to bluff the other parent
about the children’s wishes or control the children’s voices.96 In
this regard, the parent living with the children would have a great
advantage compared to the other non-resident parent. First, someresident parents might bluff the non-resident parents about thechildren’s views and wishes (i.e., the parent can say to the otherparent, “Ken (child) is saying he wants to continue living with me,”even if Ken has never actually said so). Some might force or ask
the children to say the word on the parent’s behalf (i.e., the mothercan ask the child, “Ken, tell your Dad that you want to live withMom,” even if Ken does not have a specific preference between
the two parents). Second, some parents might even try to control
or brainwash the children’s wishes (i.e., the mother can say to thechild, “You have no choice but to live with me. Your Dad is suchan irresponsible man, and he just abandoned us,” even if it is notbased on the fact).97 Furthermore, considering these advantages of
96 Also, a parent might provide the child with gifts and pleasant times to win child custody.
This is the so-called “lollipop” syndrome. See MNOOKIN, supra note 63, at 589.
97 One parent might, deliberately or unconsciously, behave in a way hostile to the otherparent, and alienate the child from the other parent. Then, the child would grow up to reject thetargeted parent. This kind of parental behavior is the so-called “parental alienating behavior,”

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

2016]

unknown

Seq: 35

28-MAR-16

DIVORCE CUSTODY DISPUTES

16:05

971

physically having children under their control, some parents mighttake children away from the other parents by using physical forces
before starting the divorce negotiations.
On the other hand, children’s age would play an importantrole in determining parents’ behaviors. Parents’ strategic behavior
might be stronger if the children were at the age of ten or older
because the older children’s wishes would be more respected if thecase went to court. However, at the same time, younger children
would be easier to be controlled by the resident parent because of
their higher dependence on the parent emotionally, financially, andsocially. But, older children would still be somehow controlled by
the resident parent even though they might not be as highly dependent as younger children (i.e., it would be difficult for the resident
parent to shut down all the communication between a fifteen-yearold child and the other non-resident parent. The child could use
the phone or email on his or her own).
b.

Altruistic Person Model: Children’s Interests

Assuming a parent thinks, as a paternalistic altruistic person,that he himself or she herself having custody would serve the bestinterests of the child, that parent would employ strategic behaviors
to maximize his or her odds of getting child custody. In that case,the parent’s strategic behaviors would be basically the same as theself-interested person model. Having said that, a paternalistic parent might be more reluctant than a self-interested parent to havethe children involved in the divorcing process and to “use” children’s voices in a tactical way because the paternalistic parent
would care about children’s interests.
On the other hand, if a parent thinks, as an autonomic altruistic person, that children themselves should choose the custodial
parent in order to maximize the children’s interests, that parent
would behave in a different way (i) to reveal real and honest
wishes of the children, and (ii) to follow the children’s wishes.

and the child’s symptom is the so-called “parental alienation syndrome (“PAS”).” See, e.g.,
RICHARD A. GARDNER, THE PARENTAL ALIENATION SYNDROME (2d ed. 1998); Joan B. Kelly &Janet R. Johnston, The Alienated Child: A Reformulation of Parental Alienation Syndrome, 39
FAM. CT. REV. 249 (2001). Parental alienation is usually a post-divorce issue, such as one related
to visitation, but it could be an issue for custodial negotiations upon divorce if the negotiation
took a long time.

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

unknown

Seq: 36

28-MAR-16

16:05

972 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 17:937
a.

v. Holistic Discussion
Self-Interested Person Model & Paternalistic Altruistic
Person Model

To sum up, based on the self-interested person model or thepaternalistic altruistic person model, Japanese legal systems after
2013 would have two major influences on divorcing parents’behaviors.
First, divorcing parents would be reluctant to go to court tosettle child custody disputes. From the viewpoint of transaction
costs, the transaction costs for parents before the court would increase both emotionally and financially under the 2013 system,
which guarantees children’s right to be heard and the right of participation. Also, the transaction costs for children would increase if
the case went to court. Thus, parents would be reluctant to go tocourt either under the self-interested person model or the paternalistic altruistic person model. In addition, from the viewpoint of thedegree of uncertainty concerning the legal outcome, parents would
be particularly reluctant to go to court if the children are older
because the court would be more respectful of the older children’s
wishes.
Second, under the 2013 systems in Japan, children would lose
their opportunities to express their real wishes. From the analysisof strategic behavior of parents, parents would make an attempt tocontrol children’s voices. The parents who successfully have a certain level of control over their children would avoid going to court,
where children’s honest views might be revealed or where children
might change their views. At the same time, the non-resident parents who do not have direct contact with the children would also
avoid going to court because there would often be a significant risk
for them to go to court without having communication with thechildren. Imagine a simplified situation where the mother (resident) is bluffing the father (non-resident): “Ken (child) is saying hewants to continue living with me.” The mother would certainly
avoid going to court in order to maintain her bargaining endowment created by her bluff. The issue here is that the parents would
not only avoid going to court, but also would try to control children’s voices and to curtail the children’s opportunities to express
their real wishes during the informal negotiations outside the court.
b.

Autonomic Altruistic Person ModelOn the contrary, the Japanese legal system after 2013 would
have a different impact under the autonomic altruistic person

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

2016]

unknown

Seq: 37

28-MAR-16

DIVORCE CUSTODY DISPUTES

16:05

973

model. If parents were eager to respect children’s autonomy andchildren’s own preferences, they would try to reveal children’s honest wishes during the informal negotiations outside the court regardless of the design of the legal system. As for the strategic
behavior, parents would occasionally be willing to go to court
under the 2013 system, which guarantees children to be heard in
the judicial procedures. For instance, if a parent is concerned thatthe child’s honest wishes are unclear or that the counterparty denies to respect the child’s wish in the informal negotiations, thatparent might choose to go to court in order to settle the case pursuant to the child’s honest wishes. From the viewpoint of transaction
costs, the parent would balance the costs and benefits for the childto go to court.
vi.

Combination of Parents’ Characteristics

In the analysis above, I examined each parent’s behavior.
Under the Japanese legal system after 2013, if a parent has strong
characteristics of a self-interested person or a paternalistic altruistic person, that parent would be reluctant to go to court, and children might lose their opportunities to express their wishes.
On the other hand, if a parent has rather strong characteristics
of an autonomic altruistic person, that parent would be positive to
go to court in order to respect the real wishes of the children.
However, divorce custody negotiations are actually between
two parents. Thus, to make the analysis more precise, combinations of two parents’ characteristics should be further examined.

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

unknown

Seq: 38

28-MAR-16

16:05

974 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 17:937
a.

Resident Parent v. Resident Parent

Table 1: Combinations of Two Resident Parents and Children’s
Opportunities to be Heard

SI

PA

SI

Negative

PA

Negative

NegativeAA

Somewhat
Positive

Somewhat
Positive

AA

Positive

In cases where both parents live together with their children(i.e., where both parents have an easy access to their children),there are six possible combinations of parents’ characteristics asshown in Table 1: SI-SI, PA-SI, PA-PA, AA-SI, AA-PA and AAAA98 (SI, PA and AA respectively represent Self-Interested person, Paternalistic Altruistic person and Autonomic Altruistic person). Each cell in Table 1 indicates, by the scale of four (Negative,
Somewhat Negative, Somewhat Positive and Positive), whether thechildren have opportunities to be heard—(i) whether the casewould likely be brought to court and (ii) whether the children haveopportunities to express their real wishes during the parents’negotiations.
The analysis is simple if both parents have similar characteristics. Under the combinations of SI-SI, PA-SI and PA-PA, both ofthe parents would be reluctant to go to court and would not be
respectful to the children’s own wishes. Consequently, the casewould not likely go to court and children would lose their opportunities to express their real wishes during the parents’ negotiations.
Conversely, under the combination of AA-AA, both parents
would be respectful to the children’s own wishes, and they would
not hesitate to go to court if necessary. For instance, parents would
choose to go to court to settle the case if the children’s real wishes
98 The two characteristics tied with hyphen simply indicate the combinations, and the order
before and after the hyphen does not have a particular meaning.

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

2016]

unknown

Seq: 39

28-MAR-16

16:05

975

DIVORCE CUSTODY DISPUTES

were not clear or if each parent has a different view on the children’s wishes (for instance, both parents might consider that himself or herself is more preferred by the children). Therefore,children would have their opportunities to express their wishes
during the negotiations, and the case would be positive to go tocourt.
Deeper examinations are necessary for the two remaining
combinations: AA-SI and AA-PA. Under these combinations, one
parent would be reluctant to go to court and unrespectful to thechildren’s wishes while the other parent would be positive to go tocourt and respectful to the children’s wishes. But actually, one
party can bring a lawsuit—a mutual agreement between two parents is not required to go to court. Thus, as long as one AA parent
is involved in the case, the case would be somewhat positive to go
to court. Also, as long as one AA parent is involved in the caseand he or she has a sufficient access to the children, that parent
would surely ask the children’s own wishes. Thus, although theother parent (SI or PA) would try to control children’s voices or toprevent children from involving the divorce process, the children’s
real wishes would probably appear on the bargaining table during
the negotiations.
b.

Resident Parent v. Nonresident Parent

Table 2: Combinations of a Resident Parent and a Nonresident
Parent and Children’s Opportunities to be Heard

Resident

Nonresident
SI

PA

AA

SI

Negative

Negative

Somewhat
Negative

PA

Negative

Negative

Somewhat
Negative

AA

Positive

Positive

Positive\\jciprod01\productn\C\CAC\17-3\CAC313.txt

unknown

Seq: 40

28-MAR-16

16:05

976 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 17:937
In cases where one parent is a resident parent and the otherparent is a nonresident parent (i.e., one of the parent has limitedaccess to the children), combinations of parents’ characteristics are
more complicated. In those cases, as discussed in iv-a above, theresident parent would have a great advantage regarding strategic
behavior. There are nine possible combinations as shown in Table
2: [SI, SI], [SI, PA], [SI, AA], [PA, SI], [PA, PA], [PA, AA], [AA,SI], [AA, PA] and [AA, AA].99 As the same as Table 1, each cell
indicates, by the scale of four (Negative, Somewhat Negative,
Somewhat Positive and Positive), (i) whether the case would likely
be brought to court and (ii) whether the children have opportunities to express their real wishes during the parents’ negotiations.
As discussed in the case of two resident parents, the analysis issimple if both parents have similar characteristics. Under the situations of [SI, SI], [SI, PA], [PA, SI] and [PA, PA], the case would not
likely go to court and children would lose their opportunities toexpress their real wishes during the parents’ negotiations. On thecontrary, under the combination of [AA, AA], children would certainly have their opportunities to express their wishes, and the casewould be positive to go to court.
Under the combinations of [SI, AA] and [PA, AA], the casewould somewhat unlikely go to court and children would somewhat lose their opportunities to express their real wishes during thenegotiations. Despite an involvement of one AA parent to thecase, effects of the AA parent would be limited due to the limitedaccess from the nonresident parent (AA) to the children. Influence of resident parent (SI or PA) would be much stronger. For
instance, imagine the same situation described in iv-a above where
the SI or PA mother (resident) is bluffing the father (non-resident),“Ken (child) is saying he wants to continue living with me.” As
already discussed, the mother in this situation would avoid going tocourt so that she could maintain her bargaining endowment created by her bluff. What I would like to highlight here is that the
AA father (non-resident) would also not dare to go to court. He
would think—he would just lose the case before the court and thelawsuit would cause unnecessary transaction costs for Ken (and thehimself) if the alleged Ken’s wish were actually true. Therefore,
unless the father was very skeptical about Ken’s real wish, the AA
father would end up respecting the “Ken’s wish” alleged by theresident mother, which might be different from Ken’s real wish.
99 The first of the two characteristics in parentheses indicates the characteristic of a resident
parent. The second one is the characteristic of a nonresident parent.

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

2016]

unknown

Seq: 4128-MAR-16

DIVORCE CUSTODY DISPUTES

16:05

977

Lastly, under the combinations of [AA, SI] and [AA, PA],children would have their opportunities to express their real
wishes, and the case would likely go to court if necessary. As longas an AA resident parent is involved, that parent would surely ask
the children’s own wishes. At the same time, the access of the nonresident parent (SI or PA) to the children is limited. Thus, attempts of the nonresident parent to control children’s voices or toprevent children from involving the divorce process would fail.
Also, in order to settle the case in accordance with the children’s
own wishes, the AA resident parent would not hesitate to bring thecase before the court if he or she had difficulty negotiating with theother parent.
c.

Conclusion

The purpose of the Japanese system reform in 2013 was to empower children’s rights to be heard. As long as at least one autonomic altruistic person is involved as a resident parent (i.e., AA-SI,
AA-PA, AA-AA combinations of resident parent v. resident parent, and [AA, SI], [AA, PA], [AA, AA] combinations of resident
parent v. nonresident parent), wishes of the children would be
respected during the negotiations and the case would be positive to
go to court if necessary. This consequence would be consistent
with the purpose of the 2013 reform.
On the other hand, in the rest of situations where (i) both of
two parents are either self-interested persons or paternalistic altruistic persons (i.e., SI-SI, PA-SI, PA-PA of resident parent v. resident parent, and [SI, SI], [SI, PA], [PA, SI], [PA, PA] of resident
parent v. nonresident parent) or (ii) autonomic altruistic person is
involved only as a nonresident parent (i.e., [SI, AA], [PA, AA] of
resident parent v. nonresident parent), the case would not likely go
to court, and children might lose their opportunities to express
their wishes during the parents’ negotiations. This seems to be opposite to the purpose of the Japanese system reform in 2013.
2.

Japanese System Compared to U.S. Systemi.

General Differences

If you compare the Japanese system after 2013 to the U.S. majority system, the fundamental structure to hear and to value children’s wishes in the judicial procedures is similar. The court hears
children’s wishes and takes them into account as one of the noncontrolling factors to determine the best interests of the children.

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

unknown

Seq: 42

28-MAR-16

16:05

978 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 17:937
However, as described in Section II, the Japanese divorce system has some outstanding qualities when compared to the U.S. system. Under the Japanese legal system for divorce, (i) parents may
divorce by mutual agreement without any involvement from thecourt, (ii) ninety percent of divorce is actually completed this way,and (iii) joint custody after divorce is not permitted. I think thisunique difference would affect parents’ custodial negotiations if
parents were self-interested persons or paternalistic altruistic
persons.
First, because joint custody is not permitted in Japan, one parent should be selected as the custodial parent. Thus, the disputes
over child custody would be harsher in general in Japan than in the
U.S. Second, parents would be more aggressive in Japan in controlling and hiding children’s wishes from the other parents duringnegotiations because there would be no involvement from thecourt at all as long as parents could reach an agreement. On thecontrary, the parents would be less aggressive under the U.S. system where the court always has the final authority to issue a divorce decree.
To conclude, children would be exposed to greater risk of losing their opportunities to be heard under the Japanese system thanunder the U.S. system.
ii.

Attorneys’ Role Under Ethical Rules

I also would like to discuss the role of attorneys in informal
negotiations by comparing ethical rules for attorneys in Japan andthe U.S.
In the U.S., the American Bar Association (“ABA”) has established the Model Rules of Professional Conduct in 1983, which
serves as an ethical rule for attorneys in most states. Rule 4.1
thereof stipulates truthfulness in statements to others upontransactions.
Rule 4.1 [(emphasis and note added)]:In the course of representing a client a lawyer shall notknowingly:a) make a false statement of material fact or law to a third
person; or.
b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent
act by a client, unless disclosure is prohibited by Rule 1.6 [(note:
Rule 1.6 covers confidentiality of information)].

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

2016]

unknown

Seq: 43

28-MAR-16

DIVORCE CUSTODY DISPUTES

16:05

979

Under the U.S. majority system ,where the court takes into
account children’s wishes as one of the factors to decide child custody, it is likely that children’s wishes in the divorce custody negotiations fall under a “material fact.” Especially if children wereolder and their wishes were given heavier weight by the court, attorneys should certainly consider children’s wishes as a “material
fact.” Thus, under the ABA’s rule in the U.S., attorneys cannot
bluff or hide the children’s wishes in the divorce custodial negotiations. Even if the client (resident parent) wanted to bluff or hide
the child’s real wish, the attorney would still be required to deliver
the child’s real wish to the counterparty (non-resident parent) in
the negotiations. Namely, in the U.S., attorneys of parents would
play the role of a safety net for children to express and reflect theirwishes in divorce negotiations outside the court.
On the other hand, in Japan, the Japan Federation of Bar Associations (nichibenren) (“JFBA”) established the Fundamental
Rules of Attorneys’ Professional Conduct (bengoshi shokumu
kihon kitei) in 2004, which all the attorneys in Japan are required tofollow. In the JFBA’s rule, the only clause relevant to handlingchildren’s wishes is Article 14 regarding contribution to unlawful
behavior.
Article 14 [(emphasis added)]:Attorneys shall not assist or use fraudulent transactions, violence, and other unlawful or unjust behaviors.

Bluffing or hiding children’s real wishes in the divorce custody
negotiations might in theory fall under “fraudulent transactions” of
Article 14. However, unlike ABA’s Rule 4.1, the vague languageof JFBA’s Article 14 focuses on unlawful behaviors, and does not
specifically mention truthfulness or a statement of “material fact.”
Therefore, Japanese attorneys might not consider children’s wishes
as an issue of Article 14. Attorneys might not dare avoid bluffing
or hiding children’s wishes in the divorce custody negotiations
when being requested to bluff or hide by the client. In that sense,
in Japan, attorneys for parents might not be playing the role of asafety net for children to reflect their wishes in the divorce
negotiations.
3.

Non-controlling Factor v. Controlling Factor

As described in Section II-B above, in the U.S., a few states,
such as Georgia, have adapted the legal system to hear children’s
wishes as a controlling factor, while the courts in the majority ofthe states consider children’s wishes to be a non-controlling factor.

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

unknown

Seq: 44

28-MAR-16

16:05

980 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 17:937
Also in Japan, some child-advocate attorneys have insisted on introducing such a controlling factor regime (see Section II-A).
How would the parents’ negotiations differ under the legal
system of non-controlling factor and that of controlling factor?
i.

Bargaining Endowments Created by Legal Rules

The parent preferred by the child would have stronger bargaining endowments for child custody. And the heavier weight the
court gives to children’s wishes, the stronger endowments the parent obtains. More specifically, the bargaining endowments of thepreferred parent would be conclusively strong under the legal system that considers children’s wishes as a controlling factor. Under
the system of controlling factor, the court would give child custody
to a parent as long as the child preferred that parent despite anyother factors. On the other hand, the endowments would be
weaker under the legal system that considers children’s wishes asjust one of the non-controlling factors, although still positively enhanced by the children’s preferences.
ii.

Degree of Uncertainty Concerning the Legal Outcome

The uncertainty would be much lower under the controlling
factor regime, in which children have the right to choose the custodial parent, than under the non-controlling factor regime. This isbecause the court under the former system would simply give childcustody to the parent preferred by the children while the court
under the latter system has a broad discretion to determine thebest interests of the child.
Having said that, in reality, a room for uncertainty would still
remain even under the legal system of controlling factor. For example, the uncertainty under the legal system of controlling factor
would still be higher than the maternal-preference standard,100
under which the mother basically takes the child custody. There
are two reasons for this from a practical perspective.
First, it would not be easy for parents to find out the children’s
honest views and wishes before going to court, while “who themother is” would always be clear under the maternal-preference
standard. Particularly, there would be a psychological barrier forchildren to inform their wishes to the parent not chosen by them.
100 The same discussion applies to the paternal-preference standard, which is not common
around the world at the present day, but was for example adopted in Taiwan until 1996. See
Hung-En Liu, Mother or Father: Who Received Custody? The Best Interests of the Child Standard
and Judges Custody Decisions in Taiwan, 15 INT’L J. L. POL’Y & FAM. 185 (2001).

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

2016]

unknown

Seq: 45

28-MAR-16

DIVORCE CUSTODY DISPUTES

16:05

981

Second, the children’s views and wishes might change before
the court, while “who the mother is” would almost never change
under the maternal-preference standard. The children’s initialviews and wishes might change after being interviewed by a neutral
third person and/or being advised by their attorney or guardian adlitem. For instance, even if a child said to the father, “I would liketo stay with you, Dad,” at the early stage of the divorce negotiations, there is no guarantee that this word from the child was honest and that this view would not change before the court.
iii.
a.

Transaction Costs

Self-Interested Person Model: Costs for Parents

The transaction costs of divorce litigation for parents would behigher under the legal system of controlling factor than that of noncontrolling factor.
Under the system of controlling factor, it would be more likelythat children’s wishes become the focal point of the arguments andthat children state their wishes explicitly in the procedures. Consequently, the parent not chosen by children would be emotionallyhurt more.
b.

Altruistic Person Model: Costs for Children

The transaction costs for children would also be higher under
the system of controlling factor than the system of non-controlling
factor. Children would feel an emotional burden more because
they themselves have to choose the one custodial parent from thetwo parents and their choices would be the final call.
But, at the same time, from the perspective of children’s autonomy, the benefits for children to go to court would be higher
under the system of controlling factor because the court would always decide the custodial parent in accordance with the children’s
wishes. Therefore, based on the autonomic altruistic personmodel, parents would balance the costs and benefits for children to
go to court.
iv.
a.

Strategic Behavior

Self-interested Person Model: Parent’s Interests

If a parent who is a self-interested person were eager to obtaincustody of the child for his or her own interests, that parent would
employ strategic behaviors to maximize his or her odds of getting
the child custody. Under the controlling factor system, it would be\\jciprod01\productn\C\CAC\17-3\CAC313.txt

unknown

Seq: 46

28-MAR-16

16:05

982 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 17:937
very critical for parents to “use” the child’s voices to increase his or
her odds because the child’s wish would be the decisive factor ifthey went to court.
Therefore, under the system of controlling factor, parents
would be more aggressive in bluffing, controlling, and hiding theirchildren’s voices from the other parents in order to maximize his or
her bargaining power in the negotiations.
b.

Altruistic Person Model: Children’s Interests

Assuming a parent thinks, as a paternalistic altruistic person,that he himself or she herself having a child’s custody would serve
the best interests of the child, that parent would employ strategic
behaviors to maximize his or her odds of getting child custody.
Thus, the analysis would be basically similar to the self-interested
person model, but a paternalistic parent would be more reluctant
to have children involved in the process.
However, if a parent thinks, as an autonomic altruistic person,that children themselves should choose the custodial parent in order to maximize the children’s interests, that parent would behave
in a way to be respectful of children’s wishes. Therefore, in thatcase, parents would be more likely to choose to go to court under
the legal system of controlling factor, where it is guaranteed thatthe court hears and follows children’s wishes.
v.
a.

Holistic Discussion

Self-Interested Person Model & Paternalistic Altruistic
Person Model

Based on the self-interested person model or the paternalistic
altruistic person model, the legal system of controlling factor would
have two stronger influences on divorcing parents’ behaviors than
the system of non-controlling factor.
First, divorcing parents would be more reluctant to go to court
to settle child custody disputes. From the viewpoint of transaction
costs, the transaction costs for parents before the court would increase under the system of controlling factor. Also, the transaction
costs for children would be higher under the system of controlling
factor if the case went to court. Thus, parents would be more reluctant to go to court either under the self-interested person modelor the paternalistic altruistic person model. In addition, from theviewpoint of the degree of uncertainty concerning the legal outcome, parents would be more reluctant to go to court because it\\jciprod01\productn\C\CAC\17-3\CAC313.txt

2016]

unknown

Seq: 47

DIVORCE CUSTODY DISPUTES

28-MAR-16

16:05

983

would be easier for them to predict the outcome of the court under
the system of controlling factor.
Second, under the system of controlling factor, children would
have less opportunity to express their wishes. From the analysis ofstrategic behavior of parents, parents would make an attempt tocontrol children’s voices more under the system of controlling factor. Consequently, parents would be more prone to avoid going tocourt, and also to curtail the children’s opportunities to express
their real wishes during the informal negotiations outside the court.
b.

Autonomic Altruistic Person ModelOn the contrary, as for strategic behavior under the autonomic
altruistic person model, parents would be more willing to go tocourt in some cases under the legal system of controlling factor,
where it is guaranteed that the custodial parent is determined inaccordance with the children’s wishes. For instance, if a parent isconcerned that the child’s honest wishes are not reflected in theinformal negotiations, the parent might choose to go to court inorder to settle the case pursuant to the child’s honest wishes. Morespecifically, from the viewpoint of the transaction costs, that parent
would balance the costs and benefits for the child to go to thecourt.
c.

Conclusion

In conclusion, under the legal system of controlling factor,
compared to the legal system of non-controlling factor, parents
would be more reluctant to go to court and children would be more
likely to lose their opportunities to express their wishes if the parents have strong characteristics either of a self-interested person ora paternalistic altruistic person. Namely, when the children’s rightto be heard is more empowered under the legal system, children
would actually have less opportunity to be heard in the negotiations outside the court.
On the other hand, if a parent has rather strong characteristics
of an autonomic altruistic person, the parent would be more positive to go to court in order to reveal and to reflect the wishes of thechildren under the legal system of controlling factor than that ofnon-controlling factor.
To be more precise, similar discussions to 1-vi above would
apply with regard to combinations of parents’ characteristics. If atleast one autonomic altruistic person is involved in the case as aresident parent, wishes of the children would be more respected\\jciprod01\productn\C\CAC\17-3\CAC313.txt

unknown

Seq: 4828-MAR-16

16:05

984 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 17:937
during the negotiations and the case would be more positive to go
to court under the legal system of controlling factor. However, forthe rest of parents’ combinations, the case would less likely go tocourt and children would have less opportunity to express theirwishes during the parents’ negotiations under the controlling factor
system.

V.

CONCLUSION

A.

Discussion

In this paper, I first compared how legal systems hear children’s wishes in divorce custody disputes in Japan and the U.S.
Second, by reviewing a quantitative survey report and biographies
in Japan, I suggested three behavioral models (the self-interested
person model, the paternalistic altruistic person model, and the autonomic altruistic person model) to analyze parents’ negotiations
for divorce custody in Japan. Lastly, I analyzed parents’ custodial
negotiations in Japan by using the five-factor framework of bargaining in the shadow of the law.
As a general result, empowering children’s rights to participation in the legal procedures would actually work well to empowerchildren in society if the parents have strong characteristics of anautonomic altruistic person. However, children whose parents’characteristics are of a self-interested person or a paternalistic person would have less opportunity to be heard in the parents’ negotiations outside the court if children’s participation rights in the legal
procedures were empowered. This general principle would apply
not only to the Japanese legal systems, but also to the U.S. systems.
More specifically, based on a self-interested person or a paternalistic person model, children would rather lose their opportunity
to be heard in the parents’ negotiations outside the court under thecurrent Japanese legal system after 2013, which guarantees children’s participation rights in the court. Compared to the U.S. system, Japanese children would have less opportunity to be heard
outside the court if you consider the uniqueness of Japanese divorce system (kyogi rikon) and the ethical rules for attorneys. In
addition, under the legal systems that value children’s wishes as acontrolling factor rather than a non-controlling factor, children
would have less opportunity to be heard.

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

2016]

unknown

Seq: 49

DIVORCE CUSTODY DISPUTES

28-MAR-16

16:05

985

The purpose of the 2013 reform of family court systems in Japan was to empower children’s rights to participate and to express
their own views. However, this reform might end up curtailingthese children’s rights in the shadow of the law. In particular, themajority (nearly ninety percent) of the divorce custody disputes inJapan are settled outside the court. The main concern is that the
introduction of systems to empower children’s wishes in the judicial procedure targeting a minority of the divorce disputes might
have a de facto adverse effect of preventing children from raising
their wishes in the majority of divorce disputes outside the court insociety.
Furthermore, as I summarized in II-A above, there is a discussion still going on in Japan about how a court should value children’s wishes. However, if the court practices were to move to thedirection to consider children’s wishes as a controlling factor in thecurrent Japanese system, children might further lose their opportunity to be heard.
Children’s rights advocates often focus narrowly on the formal
legal rights of children before the court, but we should not ignore
the actual impact and backlash on the whole society in the shadowof the law.
B.

Policy Recommendations

Though further empirical studies would be needed to identify
the best legal system for child empowerment, I would like to tentatively explore two possible reforms to mitigate the concerns above
in Japan.
One possible approach would be to secure the court’s involvement in each case. The first policy recommendation, based on thisapproach, is to abolish the kyogi rikon (divorce by mutual agreement) system in Japan, at least for couples with a child. Ideally, thecourt should be involved and hear children’s wishes in every divorce custody case. In this way, children’s right to express theirwishes would be guaranteed in all the divorce custody cases. Even
though it might not be feasible for the court to directly hear children’s wishes in every case, it would be feasible to employ a system
like that of the U.S. under which the court has the final authority toreview parents’ agreement and to issue a divorce decree.
Another possible approach would be to secure children’s
rights outside the court. Thus, the second policy recommendation

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

unknown

Seq: 50

28-MAR-16

16:05

986 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 17:937
is to give children a substantive right regarding their parents’ divorce. Under the current Japanese system, children have the procedural right to participate in the legal procedures and to express
their wishes there, but they do not have any substantive rightoutside the court. I think this is the main problem that would
cause the above concerns outside the court. To be specific, my recommendation is to grant children, at least at a certain age, the rightof veto on their parents’ divorce and on the divorce conditions (i.e.,
parent would be required to obtain children’s written consent upondivorce). In this way, parents would no longer be able to ignore
children’s wishes in the divorce negotiations. Some might feel thisidea radical, but I think it is rather natural for children, as membersof the family, to have a substantive right for divorce if you consider
the fact that divorce is dissolution of the family and not just separation of the couple. This second recommendation would apply to
the U.S. system as well as the Japanese system.
Of course, various other factors (i.e., psychological effects onchildren, parents’ interests, and judicial economy) and any otherpossible options should be examined carefully before actually implementing these policies. But still, I believe it is worth suggesting
the policies recommendable from the perspective of empoweringchildren’s participation right.
C.

Future Tasks

This paper employed three models to identify parents’ characteristics and theoretically discussed divorcing parents’ bargaining
behaviors through a five-factor framework from a law and economics approach. Considering the difficulties of conducting empiricalstudies on divorce disputes in Japan,101 this theoretical analysis provides meaningful insight. Having said that, divorce custody disputes are perhaps more complicated in reality. This paper’s
analysis might not be applicable as-is to some exceptional cases.
For instance, while this paper focused on parents’ behaviors,
the changes of legal system might also affect children’s behaviors insome cases. Technically, empowering children’s participation rightin the judicial procedures can provide bargaining endowments withthe children. Although it would be difficult for children to beaware of such bargaining endowments in most cases, some older
101 See supra note 71.

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

2016]

unknown

Seq: 51

28-MAR-16

DIVORCE CUSTODY DISPUTES

16:05

987

children might be able to utilize their own bargaining power during
the divorce custody negotiations outside the court.
In another instance, with regard to the degree of uncertainty
concerning the legal outcome, this paper discussed that divorcing
parents would become reluctant to go to court if the court’s decisions were predictable (i.e., under the controlling factor regime).
But, parents’ motivations to “go to court” might be more diverse.
In particular, under the Japanese legal system, the lawsuits (sosho)
have de facto continuity from the pre-litigation conciliation procedures (chotei) at the court. Therefore, some parents might choose
to enter the court system initially not for seeking the court’s adjudications but solely for the purpose of facilitating their negotiations
through the conciliation procedures (chotei).
Also, regarding the transaction costs, increase of the costs
caused by children’s participation in the judicial procedures might
not have so much impact on parents’ behaviors in some cases. For
parents who have already paid enormous costs for the divorce negotiations (imagine severe cases where parents are exhausted afterfighting over the years in a highly hostile way), the costs caused bychildren’s participation in the judicial procedures might be a minor
issue.
These examples mentioned above are potential exceptions,and they would not ruin the importance of this paper’s arguments.
However, empirical studies would be eventually needed to reveal
details of the reality—how parents actually behave in the custodial
negotiations in each legal system. I hope this paper’s models andtheoretical analysis will help design the empirical studies in the
future.
VI.
The list ofdescriptions):
•
•
•
•
•

26

biographies

ANNEX
reviewed(*contains

relevant

DAI, BREAK POINT: JINSEI GA KAWARU SHUNKAN(2013).*
KANJI INOKI, ANTONIO INOKI JIDEN (1998).*
MARIKO ISHIHARA, FUZOROINA HIMITSU (2006).*
TAICHI ISHIMOTO, FURYO ROKU: KANTO RENGO MOTO
RIDA NO KOKUHAKU (2012).*AKANE OSAWA, HAHA HITORI KO HITORI (2009).*

\\jciprod01\productn\C\CAC\17-3\CAC313.txt

unknown

Seq: 52

28-MAR-16

16:05

988 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 17:937
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•

AYA SUGIMOTO, RIBERARU RAIFU [LIBERAL LIFE](2010).*HIKARU UTADA, TEN (2009).*
RURIKO ASAOKA, SAKITSUZUKERU (2013)
SHINICHI CHIBA, CHIBA SHINICHI ARATEME WACHINAGARINDO (2008)
NORIAKI ENDO, THE STORY (2013)
HITOMI FUJIMOTO, RIKON MADE (2001)
HIROMI GO, DADHI [DADDY] 1998
KENICHI HAGIWARA, SHOKEN (2008)
RIE HASEGAWA, GANRIKI (2012)
TAKAFUMI HORIE, WAGA TOSO (2015)
KAZUMA IEIRI, KONNA BOKU DEMO SHACHO NI NARETA(2007)
MERO IMAI, NAITE, YANDE, WARATTE (2012)
YUKI KOKUBO, ISSHUNNI IKIRU (2013)
JUNKO MIHARA, IKITAI (2010)
MEGUMI OKUNA, AKAI TOGE (2008)
SHINOBU OTAKE, WATASHI HITORI (2006)
NORIKO SAKAI, SHOKUZAI (2010)
AI TOMINAGA, AI NANTE DAIKKIRAI (2014)
MASANOBU TAKASHIMA, NANNO INGA DE (1996)
KAZUYA YOSHII, USHINAWARETA AI WO MOTOMETE(2007)ZEEBRA, ZEEBRA JIDEN HIP HOP LOVE (2009)Correction by the Author
November 2, 2016
Hiroharu Saito
The author would like to correct lines 24-26 (and note 30) on page 946 as
follows.
Original sentence
While (A) applies only to sosho (the adjudication procedure) and does not
apply to chotei (the conciliation procedure), (B), (C) and (D) apply to chotei
as well as sosho.
Revised sentence (see underlined parts)
While (A) applies only to shinpan (the adjudication procedure) and does
not apply to chotei (the conciliation procedure), (B), (C) and (D) apply to
chotei as well as shinpan. (A) also applies to sosho (the litigation
procedure).
Add one more source to note 30 (see underlined parts)
30 Id. at art. 258, para. 1. Jinji Sosho Ho [Personal Status LitigationAct], Law No.109 of 2003, art. 32, para. 4 (Japan).
A supplemental note:
The author omitted an explanation of shinpan in the original article.
The author’s intention was to simplify explanations of the complicatedfamily court system in Japan, but it might have been misleading.
If chotei (the conciliation procedure) fails, the case will go to either
sosho or shinpan in accordance with the nature of the case. Parties mustfile a lawsuit to start sosho (the litigation procedure) in cases where
divorce itself is an issue in dispute. Shinpan (the adjudication procedure)is the adjudication procedure used for cases where custody of the child orvisitation is disputed without disputing divorce itself. These cases
automatically move to shinpan once chotei fails. The judge adjudicate
issues in dispute such as designation of the custodial parent or surrenderof the child custody. Kaji Jiken Tetsuzuki Ho [The Domestic Relations
Case Procedure Act], Law No. 52 of 2011 applies to chotei and shinpan.
Jinji Sosho Ho [Personal Status Litigation Act], Law No.109 of 2003
applies to sosho.