2017.12.05

2017 (Kyo) 17

Minshu Vol. 71, No. 10

Decision regarding a case in which seeking delivery of a child from the mother with no legal custody authority as a claim for ceasing and desisting from obstruction under the parental authority of the father appointed as a person who has parental authority with regard to the child after the divorce of the father and mother was held to fall under abuse of right

Case of appeal with permission against a decision of dismissal of an appeal against a ruling against a decision of dismissal without prejudice of a petition for a provisional disposition order for delivery of a child

Decision of the Third Petty Bench, dismissed

Fukuoka High Court, Naha Branch, Decision of June 6, 2017

Seeking delivery of a child from the mother with no legal custody authority as claim for ceasing and desisting from obstruction under parental authority of the father appointed as a person who has parental authority with regard to the child after the divorce of the father and mother falls under abuse of right under the circumstances of the case, including the following (1) to (3):

(1) Since the child is seven years of age, and the mother has been caring for the child by herself for more than four years since she started to live separately from the appellant, there is no prima facie showing that the above-mentioned caring by the mother is inadequate in light of the child’s interests;

(2) The mother has filed a petition for conciliation, setting the appellant as the counterparty and seeking change of a person who has parental authority with regard to the child; and

(3) It cannot be found that the father has acceptable reasons to seek delivery of the child as claim for ceasing and desisting from obstruction under his parental authority, not as a disposition regarding the custody of a child.

(There is a concurring opinion.)

Article 1, paragraph (3) and Article 820 of the Civil Code



Civil Code

(Fundamental Principles)

Article 1
(3) No abuse of rights is permitted.

(Right and Duty of Care and Education)

Article 820 A person who exercises parental authority holds the right, and bears the duty, to care for and educate the child for the child's interests.

The appeal against a ruling is dismissed.

The cost of the appeal from a ruling shall be borne by the appellant.

Reasons for appeal against a ruling filed by the counsel for the appellant, WAKITA Takashi

1. In this case, the appellant, who is a father appointed as a person who has parental authority with regard to the first son after the divorce of the father and mother (hereinafter referred to simply as the “first son”), filed a petition for a provisional disposition order for delivery of the first son, setting the mother with no legal custody authority (hereinafter referred to simply as the “mother”) as an obligor and setting a claim for ceasing and desisting from obstruction under the parental authority as a right to be preserved.

2. According to records, the circumstances of this case are as follows:

(1) In September 2010, the appellant and the mother had the first son and gave notification of marriage.

(2) In February 2013, the mother started to live separately from the appellant, taking the first son with her, and since then, she has been caring for the first son by herself.

(3) In March 2016, the appellant and the mother divorced by agreement, designating the appellant as a person who has parental authority with regard to the first son.

(4) In December 2016, the mother filed a petition for conciliation to the Tokyo Family Court, setting the appellant as the other party and seeking to change the person who has parental authority with regard to the first son to the mother.

(5) In April 2017, the appellant filed a petition for this case, setting the mother as an obligor.

3. The court of prior instance decided that the petition of this case should be dismissed without prejudice, as it is an unlawful petition since the merits of the petition of this case are an adjudication case for a disposition regarding the custody of a child prescribed in row 3 of appended table 2 of the Domestic Relations Case Procedure Act and cannot be determined through procedures for civil actions.

4. However, it is construed that a party who is appointed as a person who has parental authority with regard to a child after the divorce of the father and mother may, through procedures for civil actions, seek delivery of the child from the other party with no legal custody authority as claim for ceasing and desisting from obstruction under the parental authority (1957 (O) No. 1166, Judgment of the Third Petty Bench of the Supreme Court of March 15, 1960, Minshu Vol. 14, No. 3, at 430, 1970 (O) No. 134, Judgment of the Second Petty Bench of the Supreme Court of May 22, 1970, Hanrei Jiho No. 599, at 29).

With that being said, since a person who exercises parental authority holds the authority to care for the child in the child's interests (Article 820 of the Civil Code), exercise of parental authority that harms the child's interests is unallowable as it constitutes abuse of right.

In this case, since the first son is seven years of age, and the mother has been caring for the first son by herself for more than four years since she started to live separately from the appellant, there is no prima facie showing that the above-mentioned caring by the mother is inadequate in light of the first son’s interests. In addition, since the mother has filed a petition for conciliation, setting the appellant as the other party and seeking change of a person who has parental authority with regard to the first son, the first son’s interests may be significantly harmed by changes in the caring environment that occur over a short period of time if the first son is delivered to the appellant, followed by the person with parental authority being changed to the mother, and the first son being delivered to the mother. On the other hand, it is construed that the appellant can file a petition to seek delivery of the first son as a disposition regarding the custody of a child, setting the mother as the other party. In proceedings pertaining to the above-mentioned petition, the child’s welfare is contemplated to be taken into consideration (Article 65, etc. of the Domestic Relations Case Procedure Act). From these points, it cannot be said that the appellant has reasonable cause to seek delivery of the first son as claim for ceasing and desisting from obstruction under the parental authority, not as a disposition regarding the custody of a child.

Therefore, under the above-mentioned circumstances, seeking delivery of the first son from the mother as claim for ceasing and desisting from obstruction under the parental authority of the appellant should be held to fall under abuse of right.

5. For the reasons stated above, the petition of this case should be dismissed without prejudice, and the conclusion of the determination by the court of prior instance, which reached the same conclusion as the Court, can be affirmed. The arguments of counsel for the appellant are an allegation of illegality in the decision in prior instance concerning matters that do not affect the conclusion of the decision, and therefore cannot be accepted.

Accordingly, the decision has been rendered as set forth in the main text by the unanimous consent of the justices. However, there is a concurring opinion from one of the justices, KIUCHI Michiyoshi.



The concurring opinion of the justice, KIUCHI Michiyoshi, is as follows:

Parental authority is a right and a duty at the same time to care for and educate the child, and should be exercised in the child’s interests (Article 820 of the Civil Code). Contrary to the fact that ownership is the exclusive power to control an object, and as it is a right, claim for ceasing and desisting from obstruction is allowed to secure exercise of the right from being obstructed, exercise of parental authority is not allowed simply because it is done by a person who has parental authority, but is allowed only when it is done in the child’s interests. If the child's interests are harmed in the exercise of parental authority, such a situation is cause for suspension of parental authority under Article 834-2, and eventually the parental authority itself will be suspended. From these points, it is needless to say that the exercise of parental authority in individual cases is not allowed to harm the child’s interests.

As procedures for determining whether the father or the mother is appropriate to care for a child based on the child’s interests, and demanding delivery of a child to an appropriate person, there are procedures called the family court’s disposition regarding the custody of a child and a provisional order based on such disposition. In these procedures, if a child is 15 years of age or older, the family court must hear statements from the child (Article 152, paragraph (2) and Article 157, paragraph (2) of the Domestic Relations Case Procedure Act). Even if a child is under 15 years of age, the family court shall endeavor to understand the intentions of the child by hearing statements from said child by having a family court investigating officer conduct an examination or using any other appropriate method, and to take the child's intentions into consideration according to the child's age or degree of development (Article 65 of the same Act); and therefore, in most cases on a practical level, a family court investigating officer is engaged and plays a large role in understanding the intentions of the child. Furthermore, the family court may reflect the intentions of a child in proceedings by having the child intervene in proceedings as an interested person by its own authority when the child possesses mental capacity or appointing an attorney as the child's counsel by its own authority (Article 42, paragraph (3) and Article 23, paragraph (2) of the same Act). As seen from these points, the family court has a duty to play a guardian role for the child’s interests.

On the other hand, in an action for merits of claim for delivery of a child under parental authority through procedures for civil actions and in a civil provisional order that holds such action as its merits, submission of allegations and evidence to the court regarding the presence or absence of a right and the necessity to preserve it must be carried out mainly by the parties (in this case, the father and the mother of the child), and there are no tools for the court to play a guardian role for a child’s interests since the court is not contemplated to play such a role.

For a dispute of claim for delivery of a child between the father and the mother, in light of the child’s interests and also in light of burdens placed on the parties and effectiveness of the proceedings, procedures at the family court are put in place as fundamental tools.

In this case, the child, who was seven years of age, has been cared for by his mother by herself for more than four years since she started to live separately from the father in February 2013, and the father, who is the appellant, had provided advance consent to such care by the mother (at least until the end of March 2017), and therefore it cannot be found that an objection has been made to such status of care-giving. Even in the petition of this case, there is no prima facie showing that the care offered by the mother is inadequate in light of the child’s interests. Therefore, removing the child under such status of care from the mother, who is the primary care giver for the child, and delivering such child to the appellant may harm the child’s interests, even if the appellant is a person who holds parental authority.

If the appellant seeks delivery of the child as a disposition regarding the custody of a child at the family court, it can be expected that the finding of facts and determination will be conducted by the family court after full proceedings are conducted on whether there is a risk of the child’s interest being harmed. However, the appellant did not bother to choose such proceedings and is seeking delivery of the child as a civil provisional order that holds claim for delivery of the child under parental authority through procedures for civil actions as its merits. From this point, a circumstance that denies that there is a risk of the child’s interests being harmed by a delivery of the child to the appellant cannot be found.

Such claim for delivery of the child from the mother under parental authority of the appellant cannot be held to be done for the child’s interests and is not allowed, as it is an abuse of right.

Justice KIUCHI Michiyoshi

Justice OKABE Kiyoko

Justice YAMASAKI Toshimitsu

Justice TOKURA Saburo

Justice HAYASHI Keiichi