Blog, Divorce

Divorce gets especially complicated when there is an underage child. Now that the child’s parents are going to be separated, it should be decided that which parent will raise child, and how the parent who will not raise the child will maintain their relationship with the child: mainly with money and visitation.

Child Custody, Support & Visitation Rights in Korea

Child custody, child support, and visitation right. These three things are very important matters that would have a huge impact on the child’s welfare, which is why the Korean law forces the parents to decide these three things straight when they get a divorce.

Civil Law, Article 837 (Divorce and Responsibility of Fostering Children)

 

Either husband or wife may apply to the Family Court for a divorce in each case of the following subparagraphs:

1. 1. 1. The parties shall determine by agreement matters concerning fostering their children.
      2. If the agreement as set forth in paragraph (1) shall include matters as follows:

1. 1. 1. Decision on the custodian
      2. Child support
      3. Visitation right and methods thereof

If the parents manage to make an agreement regarding those three things (child custody, child support, and visitation right), and that agreement doesn’t harm the child’s welfare, then the Family Court just let it be. But if the parents can’t make an agreement, or their agreement is so absurd that it harms the child’s welfare, then the Family Court steps in and makes a decision instead of the parents.

1. Child Custody

First, the court decides which parent would get the child’s custody. It depends on various circumstances: the child’s age, the parents’ financial state, etc. The law says that the court should listen to the child’s opinion too if the child is over age thirteen.

Please note that “joint custody” is very unusual in Korea, so usually only one parent would get the custody. If both parents are considered unfit to raise the child, then the court can give the custody to someone else, like grandparents, or an institution for children. If there are multiple children, it is also possible to give the custody of each child separately to different people.

Unlike normal civil or criminal court cases, the Family Court’s decision of child custody is not written in stone. Even if the custody is already given to someone, the court can change it if is necessary for the child’s welfare.

2. Child Support

Second, the court decides how much the non-custodial parent should pay the custodial parent for the support of the child. We already looked over the matter of child support in the past article, so we wouldn’t repeat it here.

3. Visitation Rights

Third, the court decides the visitation right and methods thereof. The parent who doesn’t raise the child has the right to visit their child, and vice versa. Even though it is called “visitation right,” the method is not just limited to visiting. They can exchange letters, e-mails, or gifts, make phone calls, or do whatever else they could do to maintain their parent-child relationship. The visits can also be made in various ways, such as the child visiting their parent in the weekends, or once a month, or twice a year on the child’s school vacation.

Even though the non-custodial parents have a legal right of visitation, it can still be restricted if it hurts the child’s welfare. So, if the parent has harmed or is likely to harm the welfare of the child by abusing them, the court can restrict, exclude, or modify the visitation right of the parent.

In the past, the visitation right only belonged to the parents, but nowadays it is getting broader. Korean law started giving the visitation right to the child’s grandparents in 2016, only when the parent cannot visit themselves from extenuating circumstances. For instance, if the mother is raising the child, but the father (who has a visitation right) is dead or in a coma, then the father’s parents (child’s paternal grandparents) can visit the child instead. There is also a recent case which recognized the visitation right of the siblings. Two young brothers got separated because one lives with their father and the other lives with their mother, so the court decided that those brothers have a right to visit each other.