Judgments of the Supreme Court

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2020 (Kyo) 14

Date of the judgment (decision)

2021.03.29

Case Number

2020 (Kyo) 14

Reporter

Minshu Vol. 75, No. 3

Title

Decision concerning whether it is permissible for a person who is a third party other than the parents of a child and has for all practical purposes had custody of the child to file a petition for a ruling to determine a person who is to have custody of the child

Case name

Case of appeal with permission against a decision to dismiss with prejudice on the merits appeal against a ruling of a disposition regarding the custody of a child (designation of a person who has the custody of a child)

Result

Decision of the First Petty Bench, quashed and decided by the Supreme Court

Court of the Prior Instance

Osaka High Court, Decision of January 16, 2020

Summary of the judgment (decision)

A third party other than parents of a child may not file a petition for a ruling to determine a person who is to have custody of the child as a disposition regarding the custody of a child prescribed in Appended Table 2, row (3) of the Domestic Relations Case Procedure Act with the family court even if the third party is a person who has for all practical purposes had custody of the child.

References

Article 766 of the Civil Code and Article 39 and Appended Table 2, row (3) of the Domestic Relations Case Procedure Act

Civil Code

(Determination of Matters regarding Custody of Child after Divorce etc.)
Article 766 (1) If parents divorce by agreement, the matters of who will have custody over a child, visitation and other contacts between the father or mother and the child, sharing of expenses required for custody of the child and any other necessary matters regarding custody over the child shall be determined by that agreement. In this case, the child's interests shall be considered with the highest priority.
(2) If the agreement set forth in the preceding paragraph has not been made, or cannot be made, the matters set forth in the preceding paragraph shall be determined by the family court.
(3) The family court may change the agreement or determination under the provisions of the preceding two paragraphs and order any other proper disposition regarding custody over the child, if it finds this necessary.
(4) The rights and duties of parents beyond the scope of custody may not be altered by the provisions of the preceding three paragraphs.

Domestic Relations Case Procedure Act

(Particulars to Be Adjudicated)
Article 39 A family court shall, as provided for in this Part, adjudicate the particulars set forth in Appended Tables 1 and 2 as well as the particulars specified in this said Part.

Appended Table 2 (Related to Article 20, Article 25, Article 39, Article 40, Articles 66 to 71, Article 82, Article 89, Article 90, Article 92, Article 150, Article 163, Article 167, Article 168, Article 182, Article 190, Article 191, Article 197, Article 233, Article 240, Article 245, Article 252, Article 268, Article 272, Article 286, and Article 287; and Article 5 of the Supplementary Provisions)
Paragraph (3) Disposition regarding the custody of a child
- Article 766, paragraphs (2) and (3) of the Civil Code (including the cases where applied mutatis mutandis pursuant to Articles 749, 771, and 788 of said Code)

Main text of the judgment (decision)

The decision in prior instance is quashed, and the ruling in first instance is revoked.

The petition filed by the respondent is dismissed without prejudice.

The total costs of the procedures shall be borne by the respondent.

Reasons

Concerning the reasons for appeal stated by the counsel for appeal, NISHIMURA Eiichiro and SAKATE Ayako

1. In this case, the respondent, the grandmother of Child A (hereinafter referred to as the "Child"), filed a petition for a ruling to determine a person who is to have custody of the Child as a disposition regarding the custody of a child prescribed in Appended Table 2, row (3) of the Domestic Relations Case Procedure Act, against Appellant Y1, who is the natural mother of the Child, and Appellant Y2, who is the adoptive parent of the Child.

2. According to the case records, the development, etc. of this case is as follows.

(1) Appellant Y1 and her ex-husband had the Child in December 2009, but divorced in February 2010 while designating Appellant Y1 as the person who has parental authority of the Child.

(2) In December 2009, Appellant Y1 and the Child had come to live with the respondent, who is the mother of Appellant Y1, at the respondent's home. Since then, Appellant Y1 and the respondent had had custody of the Child.

(3) Around August 2017, Appellant Y1 left the respondent's home while leaving the Child at the respondent's home and started living with Appellant Y2. Since then, the respondent has solely had custody of the Child.

(4) Appellant Y1 and Appellant Y2 got married in March 2018. At that time, Appellant Y2 adopted the Child.

3. The court of prior instance determined as summarized below and determined that the respondent should be designated as a person who is to have custody of the Child.

In order to achieve child welfare, in light of the purport of Article 766, paragraph (1) of the Civil Code, it should be considered that a grandparent, etc. of a child who is for all practical purposes a person having custody of the child may file a petition for a ruling to determine a person who is to have custody of the child as a disposition regarding the custody of the child. As a grandmother who has for all practical purposes had custody of the Child, the respondent may file a petition for a ruling to determine a person who is to have custody of the Child.

4. However, the aforementioned determination of the court of prior instance cannot be upheld for the following reasons.

(1) The first sentence of Article 766, paragraph (1) of the Civil Code provides that if parents divorce by agreement, a person who is to have custody of a child and other necessary matters regarding the custody of the child are to be determined by agreement between the parents. In response to this, paragraph (2) of the same Article provides that "if the agreement set forth in the preceding paragraph has not been made, or cannot be made, the matters set forth in the preceding paragraph shall be determined by the family court." Taking this into account, paragraph (2) of the same Article is considered to be premised on the expectation that the family court will determine matters regarding the custody of a child upon petition filed by his/her parents who are to make agreement referred to in paragraph (1) of the same Article.

On the other hand, there is no provision to the effect that a third party who has for all practical purposes had custody of a child may file a petition to request the family court to determine the aforementioned matters in the Civil Code or in any other laws and regulations. Regarding the aforementioned petition, the aforementioned third party also cannot be equated with parents only on the grounds of the fact of having custody of a child. Incidentally, the interests of a child must be given first priority in determining matters regarding the custody of the child (see the second sentence of Article 766, paragraph (1) of the Civil Code). However, this does not serve as a ground for permitting the aforementioned third party to file the aforementioned petition.

For the reasons described above, it cannot be considered through the application or application by analogy of Article 766 of the Civil Code that the aforementioned third party may file the aforementioned petition, and there is also no other legal ground for such interpretation.

Therefore, it is reasonable to consider that a third party other than the parents of a child may not file a petition for a ruling to determine a person who is to have custody of the child as a disposition regarding the custody of the child with the family court even if he/she is a person who has for all practical purposes had custody of the child.

(2) When this determination is applied to this case, the respondent is a person who has for all practical purposes had custody of the Child but is not a parent of the Child. Therefore, the respondent may not file a petition for a ruling to determine a person who is to have custody of the Child as a disposition regarding the custody of the Child with the family court. Consequently, the petition filed by the respondent should be considered unlawful.

5. The determination of the court of prior instance different from the above contains a violation of laws and regulations that has clearly influenced the judicial decision. The counsel's arguments are well-grounded as arguments to this effect, and the decision in prior instance should inevitably be quashed without the need to make a determination on other reasons for appeal. According to the explanations made above, the ruling in first instance should be revoked, and the petition filed by the respondent should be dismissed without prejudice.

Accordingly, the Court unanimously decides as set forth in the main text of the decision.

Presiding Judge

Justice IKEGAMI Masayuki

Justice KOIKE Hiroshi

Justice KIZAWA Katsuyuki

Justice YAMAGUCHI Atsushi

Justice MIYAMA Takuya

(This translation is provisional and subject to revision.)