Q) I am a US citizen who married a Korean wife. We moved to California in 2015 and also had a son the same year. This year, she suddenly left in April and refused to return home with our son. It has been 3 months now since I have been able to be with our son and 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 get the Hague process started. I would like to know if your firm has handled Hague cases for International Parental Child Abduction and if you have been successful in having the child returned to their country of habitual residence.
A) On December 13, 2012, South Korea acceded to the Convention on the Civil Aspects of International Child Abduction (“Hague Child Abduction Convention”), whereby South Korea became the 89th contracting nation to the convention(please refer to our previous article on this subject).
I have 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 returning back after we had filed an application with the court)
As South Korea and the U.S are both contracting nations of the Hague Convention, you can file a child return application with the Seoul Family Court. The court will review (i) where the child’s habitual residence is, (ii) Whether there are any special consideration to reject your application such as child abuse issue.
One thing you should note is that, although you have already sent a Hague Convention Application to the U.S. State Department, it does not make the court proceedings start in Korea. You must file a petition with the Seoul Family Court by yourself or a Korean attorney. The central authority such as U.S State Department or Korea’s Ministry of Justice is not able to order the return of the child or file/forward your child return application to the court. The Seoul Family Court as a judicial authority can order it. What MOJ can do is just to locate the child or provide any assistance in the return process.
You may also consider making a police report of child kidnapping. But, the Korean child kidnapping law requires the mother to have used a force in taking the child away. Just taking the child without saying anything cannot constitute a kidnapping under Korean law.
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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