[Q&A] Wife Took My Child to South Korea without My Consent. Can I Get My Child Returned?

Q) I am a US citizen who married a Korean wife. We moved to California 5 years ago.  This year, she suddenly left and refused to return home with our son.  It has been 3 months but she flat out denies my right to be with him.  I am not abusive nor have I ever been violent towards her or our son.  I have already sent in my Hague Convention Application to the U.S. State Department to start the Hague process. I would like to know if your firm has handled Hague cases for International Parental Child Abduction.

South Korea Is a Contracting Nation to Hague Child Abduction Convention

On December 13, 2012, South Korea had become the 89th contracting nation to the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Child Abduction Convention”, please refer to our previous article).

Hague Child Abduction Convention aims to secure the prompt return of the children under the age of 16 who were wrongfully removed or retained from their countries of habitual residence.

As South Korea and the U.S are both contracting nations of the Hague Child Abduction Convention, you may get a child return order from the Korean court when your child was taken into South Korea without your consent.

Our office had dealt with the first Hague international child abduction case at the Seoul Family Court and succeeded in getting the child back to her habitual residence. (The case was settled by the respondent’s voluntary return after we had filed an application with the court)

In this article, our international child abduction attorney in Korea explains how the Korean court and attorneys can help the return of your child under the Hague Child Abduction Convention.

File a Child Return Application with Seoul Family Court

The mechanism of the child return under the Hague Child Abduction Convention is in 2 ways. The central authority, usually a government department of each contracting state, provides assistance in securing the return of the abducted child. The judicial authority of each contracting state, usually a court, issues a return order.

The central authority of South Korea is the Ministry of Justice, and the judicial authority is the Seoul Family Court.

Your Government Agency Cannot File the Application on behalf of You

Some people misunderstand that when they file an international child abduction report or assistance application with the U.S. State Department, the Department will take care of the actual application at the Korean court. That is not the case. What the central authority can do for you is just assisting your case, for example, locating the child and providing relevant legal information of the foreign country.

File Promptly

We advise our clients to file the application as promptly as possible.

Some people delay the filing while hoping the central authorities of both countries can bring back the child. However, the government agency’s assistance is quite limited and often takes so much time to make any results in many cases. What they can do is actually what the Korean court can do.

The more time you take to file the application, the more likely that the taking parent asserts a defense that the child has become settled in the new environment. And this also delays the court review, too.

Therefore, once you confirm that your partner had abducted the child to Korea, it is best to file the application right away.

Finding the Taking Parent’s Address in Korea

Now you know the taking parent and the child are located in South Korea. Your lawyer, however, needs to provide the Korean court with the exact address where they can serve the taking parent.

When you don’t know the actual address of the taking parent, your lawyer can find the address. The lawyer can get a court’s disclosure order to look into various types of public and private records of the taking parent. This may include the Korean certificate of the family relation, Korean resident registration, customer information of the mobile company and commercial banks. In our recent case, we found the address of the taking parent by looking at her personal records on Korean national health insurance.

Prepare Court Argument

The main issue in a Hague child return case is (i) whether you have custody over the child and (ii) whether your child was removed or retained from the country of a habitual residence.

Thus, you have to prepare a court document that proves that you are the custody holder. It doesn’t matter whether your custody right is exclusive or shared.

If you don’t have a court order, which would be common for many couples who haven’t gone through a divorce or custody proceedings, preparing a local statute that explains that you have a custody right.

The habitual residence issue is decided by the totality of circumstances. If the taking parent denies the habitual residence, you can prove it by showing the school records, immigration records, and anything relevant.

It is very common that the taking parent argues that she got consent from the other parent regarding taking the child to Korea. Although the burden of proof is on the taking parent’s side, it is a good practice to prepare relevant evidence just in advance. Reporting the abduction to the local police is highly recommended. When dealing with the taking parent, you should be diligent in expressing your objection to taking the child out of your country.

When you are represented by a Korean lawyer, your lawyer will take care of this. Also basically you don’t need to come to the Korean court to participate in the court hearing. The Korean judge could order your presence, but that is very rare.

Review of Best Interest of Child Should Be Avoided

When you file a child return application with the Korean court, I am almost certain that the taking parent will make an argument that returning the child to the home country is against the best interest of the child. Sometimes this defense will be led to the allegation of domestic abuse, financial incapacity, and the time-lapse.

However, it should be fully noted among the legal profession including the presiding judge that the Hague Child Abduction Convention’s role is not to decide who is a better parent and who shall be awarded custody right but to return the child to his home country and have the court of that home country decide the custody matters.

This Article 19 of the Hague Convention clearly says this. It provides that a decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.

The Convention acknowledges 6 grounds for refusal of return of child whereby the court should deny the child return application. The legal counsel of the opposing party often tries to mix this defense with custody issues and the best interest of child analysis. The court, however, should not touch the custody issue and the defense provided by the Convention should be interpreted narrowly. The best interest of child analysis could delay the court’s review significantly and even incapacitate the international scheme that the merits of any custody issue should be adjudicated by the court of habitual residence.

Filing a Criminal Complaint with Korean Police?

You may also consider filing a police report of child kidnapping with the Korean police.  But, the Korean child kidnapping law requires the mother to have used a force or deceit in taking the child away.  Just taking the child without saying anything cannot constitute a kidnapping under Korean law.

Non-Convention Case

When a child is abducted to Korea from a non-convention country, you may still file a child return application with the Korean court based on the Korean family law or your local law. The process is quite similar to those in Hague Child return case except the jurisdiction of the court.

If you have any question regarding this article or you are in a similar case/situation , please visit our Legal Consultation center or send your inquiry email by clicking here.  Our Korean qualified lawyer will answer your inquiry.

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