International Divorce: Determination of Custodial and Rearing Parent

Criteria for Determining the Custodial and Rearing Parent

In the course of a divorce, if the parties cannot reach an agreement on matters concerning the upbringing of their minor child, or if an agreement is impossible, the court will determine the child's custodial parent, rearing parent, child support, and visitation rights (Article 837 of the Civil Act).

When the court determines the rearing parent for a minor child, it comprehensively considers all factors to decide in a manner most conducive and appropriate for the minor child's growth and welfare. These factors include the minor child's gender and age, the parents' affection and willingness to raise the child, the economic capacity for child-rearing, the content, rationality, and suitability of the parenting styles offered by the father and mother and the potential for harmony between them, the degree of intimacy between the parent and the minor child, and the minor child's own wishes (Supreme Court Decision 2021Meu12320, 12337, rendered on Sep. 30, 2021).

Where one parent has peacefully raised the minor child, especially an infant, for a considerable period after separation until the divorce trial, a change in the current rearing arrangement to designate the other parent as the custodial and rearing parent is justified only when it is clear that the current arrangement is not conducive to, but rather hinders, the minor child's sound growth and welfare, and that designating the other parent would be more beneficial to the child's sound growth and welfare than maintaining the current arrangement (see Supreme Court Decision 2008Meu380, rendered on May 8, 2008; Supreme Court Decision 2009Meu1458, 1465, rendered on May 13, 2010, etc.).

Consideration of the Feasibility of Child Handover Enforcement

In its decision 2021Meu12320, rendered on September 30, 2021, the Supreme Court stated: 'Even if a non-custodial parent is designated as the rearing parent through a court judgment, unless the minor child is actually handed over to the non-custodial parent, the designation alone is insufficient. Even if a claim for the child's handover is filed and granted, compulsory enforcement is virtually impossible. If the current rearing situation continues with the child not being handed over after the designation, the new rearing parent cannot claim child support from the other parent (see Supreme Court Decision 2005Seu18, 19, rendered on Apr. 17, 2006, etc.). Consequently, the non-rearing parent is relieved of the duty to pay child support without raising the child, thus bearing no financial burden, while the actual rearing parent bears the full economic burden of child-rearing. This situation is not conducive to the sound growth and welfare of the child. Therefore, when a non-rearing parent requests to be designated as the rearing parent, the court needs to prudently assess whether the handover of the child can actually be executed after the designation, and whether designating the non-rearing parent, despite the low feasibility of execution, could result in the non-rearing parent enjoying economic benefits or inflicting economic hardship on the rearing parent.'

The reason the Supreme Court, in its September 30, 2021 ruling, advised considering the 'actual feasibility of child handover enforcement' was due to the application of the former "Judicial Precedent on Enforcement Procedures for Judgments Ordering the Handover of an Infant (Judicial Precedent No. 917-2)."
This precedent stipulated, "provided that, if the infant has the capacity to form an intention and personally refuses the handover, enforcement cannot be carried out." In practice, if a child refused enforcement, either voluntarily or under pressure from the cohabiting parent, the enforcement officer would declare the enforcement impossible and withdraw.

The continuation of such enforcement failures became an international issue.

Since 2022, the U.S. Department of State, in its annual reports, has officially designated the Republic of Korea as a 'non-compliant' country under the Hague Convention. International reports pointed to the 'child's refusal' clause in the aforementioned judicial precedent as the cause of enforcement failures.

The Supreme Court addressed this issue by enacting and implementing the "Rules on the Enforcement of Child Return Cases under the Hague Convention on the Civil Aspects of International Child Abduction," applicable exclusively to Hague Convention cases since April 2024. Furthermore, from February 2025, it implemented the revised "Rules on the Enforcement of Judgments Ordering the Handover of an Infant" (Jaeteuk 82-1, Supreme Court Judicial Precedent No. 1894) for domestic family cases. The revised judicial precedent deleted the 'child's refusal' clause, thereby enabling the enforcement of child handovers.

Therefore, under the current standards, the ruling in 2021Meu12320, which suggests considering the feasibility of child handover enforcement in custody decisions, is difficult to apply as is.

However, as the judicial precedent has not been revised for long, the practice of considering the actual feasibility of child handover seems to persist in actual trials.

Comparison of Old and New Judicial Precedents on Child Handover Enforcement
Category	Old Precedent (Judicial Precedent No. 917-2)	New Precedent (Judicial Precedent No. 1894, Revised Jaeteuk 82-1)
Governing Rule	"Enforcement Procedures for Judgments Ordering the Handover of an Infant"	"Rules on the Enforcement of Judgments Ordering the Handover of an Infant"
Legal Basis	Analogous application of Article 257 of the Civil Execution Act (Handover of Movables) (with a proviso)	Direct application of Article 257 of the Civil Execution Act (Handover of Movables) (proviso removed)
Effect of Child's Refusal	Grounds for non-enforcement: Enforcement impossible if a child with decision-making capacity refuses.	Enforcement possible: Treated as a factor to be managed during the process, not a reason to halt enforcement.
Enforcement Officer's Authority	Limited authority: Obligated to stop enforcement upon the child's refusal.	Expanded authority: Can control the scene, take necessary measures, and complete the handover.
Role of Experts	No legal basis; relied on informal accompaniment.	Formal role as 'Enforcement Assistant' granted (e.g., child psychology experts).
Outcome of Enforcement	Lack of effectiveness in judgments; numerous cases of failed enforcement.	Effectiveness of judgments secured; enforcement possible in principle.

Preliminary Injunctions and Departure Bans

As the compulsory enforcement of a child handover is not a simple matter, in international divorce cases, one parent may depart overseas with the child before or even during the trial.

This raises the issue of whether one can apply to the court for a departure ban or an order to hold the child's passport to prevent them from leaving the country.

In countries like the United States and Japan, departure bans are enforced through protective orders, temporary restraining orders (TROs), and standing orders, which may stipulate, "The defendant shall submit their passport to the court (probation officer) and shall not leave ** without the court's permission."

Article 62(1) of the Republic of Korea's Family Litigation Act provides for certain preliminary injunctions, stating, "If deemed particularly necessary for the resolution of a case, the court may order the other party or other related persons to refrain from altering the current state of affairs or disposing of property, and may issue any other appropriate orders, such as for the preservation of property related to the case or for the care and upbringing of the persons concerned." However, orders to submit a passport or impose a departure ban are not currently issued based on this provision. Furthermore, this preliminary injunction lacks direct enforceability; a violation only results in a fine of up to 10 million KRW, relying on the other party's voluntary compliance, which limits its effectiveness.

Ultimately, under the current laws of the Republic of Korea, it is difficult to forcibly prevent a child from leaving the country before or after divorce proceedings, necessitating a detailed and strategic approach.

YEOHAE LAWFIRM possesses appropriate countermeasures for each case based on our extensive experience in handling various international divorce cases.

Overview of Child Handover Enforcement Measures in the Republic of Korea
Category	Direct Enforcement	Indirect Enforcement - Performance Order	Preliminary Injunction
Legal Basis	New Precedent & Civil Execution Act, Art. 257	Family Litigation Act, Arts. 64, 67, 68	Family Litigation Act, Art. 62
Purpose	To physically secure custody of the child.	To compel voluntary compliance from the obligor through penalties.	Temporary handover based on urgent need before a final judgment.
Key Procedure	Delegated to an enforcement officer to use physical force.	Application to the court for a fine/detention order.	Application for an urgent order to the court handling the main lawsuit.
Timing of Use	Upon non-compliance after the final judgment is confirmed.	Upon non-compliance; can be used in parallel with or as an alternative to direct enforcement.	During litigation, when there is a risk of serious harm to the child's welfare.

Relation to the Crime of Abduction or Enticement of a Minor

A person who abducts or entices a minor shall be punished by imprisonment for not more than 10 years (Article 287 of the Criminal Act). A person who abducts or entices another for the purpose of transporting them out of the Republic of Korea, or transports a person who has been abducted or enticed out of the Republic of Korea, shall be punished by imprisonment for not less than 2 years and not more than 15 years (Article 288(3) of the Criminal Act).

The crime of abduction or enticement of a minor also applies to a foreigner who commits the crime outside the territory of the Republic of Korea (Article 296-2 of the Criminal Act).

"Abduction" means the act of moving a victim against their will from a free living situation or protective relationship into the de facto control of oneself or a third party, using means such as violence, threats, or unlawful de facto force. Whether a specific act constitutes abduction in a particular case is determined by comprehensively considering relevant circumstances, such as the purpose and intent of the act, the circumstances at the time of the act, the nature and type of the act, the means and method, and the victim's condition.

In a situation where parents are divorced or separated and one parent is peacefully protecting and raising a minor child, if the other parent uses violence, threats, or unlawful de facto force to disrupt that protective and rearing state and move the child into their own or a third party's de facto control, such an act constitutes punishable abduction of a minor, unless there are special circumstances.

Furthermore, if a non-custodial parent, after receiving the child for visitation, fails to return the child after the visitation period ends and disobeys a court's child handover order, this constitutes the use of unlawful de facto force and is considered abduction of a minor.