Child custody, child support and visitation rights are significant issues that can have a major 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.
Child custody, child support and visitation rights are significant issues that can have a major 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.
Article 837-2 (Visitation Rights)
(1) A parent who does not foster children and his/her children shall have the visitation right.
(2) The lineal ascendants of a parent who does not foster children may request the Family Court to grant visitation with the children, where the parent is unable to visit the children due to death or any other extenuating circumstance such as illness and residency abroad. In such cases, the Family Court shall take into consideration circumstances such as the intent of the children, the relationship between the requesting person and the children, and the reasons for the request.
(3) If it is required for the welfare of children, the Family Court may, upon a request of the party or ex officio, restrict, exclude or modify such visitation right.
Either husband or wife may apply to the Family Court for a divorce in each case of the following subparagraphs:
If the parents managed to make an agreement regarding these three issues and that agreement didn’t harm the child’s welfare, then matters are settled. But if the parents couldn’t reach an agreement, or the agreement is so absurd that it could potentially harm the child’s welfare, then the Family Court intervenes and makes a decision instead of the parents.
Firstly, the court decides which parent would get the child’s custody. It depends on various circumstances, such as the child’s age, the parents’ financial state, etc. The law says that the court should listen to the child’s opinion as well if the child is over age 13.
As joint custody is very unusual in Korea, 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, such as 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 necessary for the child’s welfare.
Secondly, the court decides how much the non-custodial parent should pay the custodial parent for the support of the child.
Lastly, 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 relationship. The parent’s 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 harms 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.
