2000.05.01

2000 (Kyo) 5

Minshu Vol. 54, No. 5, at 1607

Decision concerning whether the Family Court may order appropriate measures concerning visitation by a parent not living with the child in such case that parents have been in separation due to broken matrimonial relation

Case of appeal with permission against the decision to modify the decision in prior instance concerning visitation

Decision of the First Petty Bench, dismissed

Fukuoka High Court, Decision of Oct 26, 1999

In case negotiation for visitation does not reach an agreement between father and mother living in separation or it is not possible to hold such negotiation, the Family Court may apply Article 766 of the Civil Code by analogy and order proper measures concerning visitation in accordance with Article 9, para. 1, category Otsu, item 4 of the Act on Inquiry Procedure for Family Affairs.

The Civil Code
Article 766
If parents divorce by agreement, the matter of who will have custody over a child and any other necessary matters regarding custody shall be determined by that agreement. If agreement has not been made, or cannot be made, this shall be determined by the family court.
(2)　If the family court finds it necessary for the child's interests, it may change who will take custody over the child and order any other proper disposition regarding custody.
(3)　The rights and duties of parents beyond the scope of custody may not be altered by the provisions of the preceding two paragraphs
Article 818
(3)　Parental authority shall be exercised jointly by married parents; provided that if either parent is incapable of exercising parental authority, the other parent shall do so.
Article 820
A person who exercises parental authority holds the right, and bears the duty, to care for and educate the child.
The Act on Inquiry Procedure for Family Affairs
Article 9, paragraph 1, category Otsu, item 4
The Family Court shall hear and determines the following matters:
Category Otsu
4. Measures regarding the designation of the person who is to take the custody of the child and other matters related to the custody of the child set forth in the provisions of Article 766, paragraph 1 of paragraph 2 (including the case where the said provisions are applied mutatis mutandis under Article 749, Article 771, and Article 788 of the said Code)

This KOKOKU-appeal is hereby dismissed.
The cost for the KOKOKU-appeal shall be borne by the Appellant.

With regard to the reasons for KOKOKU-appeal presented by Counsel Akio Higuchi, Counsel Hisakazu Oowaki and Counsel Yoshihiko Ota:
Father and mother, while in matrimonial relation, are responsible for jointly exercising parental authority and the person with parental authority has the right and assumes the duty to provide custody and education for the child (Article 818, para. 3, Article 820 of the Civil Code), and even if the marriage breaks down and father and mother live separately, visitation can be construed as a component of the child custody for either parent not living with the child. It is appropriate to construe that in case negotiation for visitation does not reach an agreement between father and mother living in separation or it is not possible to hold such negotiation, the Family Court may apply Article 766 of the Civil Code by analogy and order proper measures concerning visitation in accordance with Article 9, para. 1, category Otsu, item 4 of the Act on Inquiry Procedure for Family Affairs. Hence, we affirm the second-instance judgment ruling to the same effect as above, while the argument made by the Appellant's side cannot be accepted.
Thus, the decision is passed unanimously as described in the text.

Justice FUJII Masao
Justice ENDO Mitsuo
Justice IJIMA Kazutomo
Justice OHDE Takao
Justice MACHIDA Akira