Do I Have to Get Divorced to Become a Sole Child Custodian under Korean Law?

Recently I got a question from a U.S. citizen living in the states. He has a Korean wife and a son. He’s currently living separately from the wife and son in Korea. The wife refuses his contact with the kid. He tries to get the custody but is not sure about filing a divorce law suit right away.

A child custody has two meanings in Korea.  One is a right to make decisions for the child (so-called parental authority) and the other is right to foster the child.

Getting divorced is not necessarily required to have the “right to foster” under Korean law. He can request the Korean Family Court to designate him as the sole child fosterer, maintaining his marriage.  The court will consider certain factors such as child’s age, past and current life style, occupation and standard of living of both parties and so on in deciding who is going to be a right fosterer in terms of the child’s welfare.

Regarding the expense of bringing up a child, if he is designated as a sole fosterer, the wife shall pay the certain proportion of total expenses of bringing up a child.

In a case where he fails to be designated as a sole fosterer by the court, he shall be entitled to have a visitation right according to Korean law. He can request the court to prevent his wife from interrupting his regular visitation to his son.

It is, however, shall be noted that he can not ask for a sole “parental authority” without getting divorced.  That is because under the Korean family law the parental authority shall be jointly exercised by both parents when they are under marriage.  In this case, if he and she have disagreement in making a decision for the child, he can ask the family court to determine it on behalf of them.

If you have any question about child custody in Korea or any other family law related issues, please visit our Legal Consultation center or send your inquiry email by clicking here.  Our Korean licensed lawyers, not a U.S. lawyer residing in Korea, will answer your inquiry.

Because of the generality of this update, the information provided herein, which may or may not reflect the most current legal development, may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. 

© 2008 Wonil Chung, a Korean Licesned Lawyer/Chung & Partners, a Korean Law Firm.  All rights reserved.

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