Cardozo Journal of Conflict Resolution
Abstract
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 analytical framework 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, and the act for family court procedure was reformed in 2013 accordingly. However, this paper argues: (i) in general, the more the legal system empowers children's right to be heard in the judicial procedure, the less 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.
Disciplines
Dispute Resolution and Arbitration | Judges | Law
Recommended Citation
Hiroharu Saito,
Bargaining in the Shadow of Children's Voices in Divorce Custody Disputes: Comparative Analysis of Japan and the U.S.,
17
Cardozo J. Conflict Resol.
937
(2016).
Available at:
https://larc.cardozo.yu.edu/cjcr/vol17/iss3/14