Preventing and Responding to International Child Relocation Disputes

The Potential Risks of International Child Relocation

For couples residing overseas, marital discord or separation can lead to a situation where one spouse temporarily returns to Korea with their child. However, these circumstances of international divorce and child relocation carry a high risk of unexpected and complex legal disputes.

What one parent may believe is a simple, temporary visit can unilaterally be turned into a permanent relocation by the other parent, potentially culminating in divorce and custody proceedings being filed in a Korean court.

Such disputes can cause profound distress and disadvantage to the parties involved. Given the grave implications for a child's welfare and parental rights, it is imperative to be thoroughly prepared for these possibilities.

The Critical Issue of Implicit Consent

In a recent case, a wife, who had been living abroad with her husband, temporarily returned to Korea with their children. Contrary to the husband's expectations, she then filed for divorce and custody in a Korean court and refused to return the children to their country of residence.

The husband filed a petition with the Korean court for the immediate return of his children under the Hague Convention on the Civil Aspects of International Child Abduction. However, the court dismissed his petition. It ruled that circumstances indicated the husband had consented to the children's stay in Korea. In other words, his actions were interpreted as implicit consent to the children’s relocation, meaning the "wrongful removal" requirement under the Hague Convention was not met.

In this case, the husband had cooperated with the temporary return by providing round-trip airline tickets and sending living expenses. These very actions were later used against him to argue that the relocation occurred “with the consent of the parent.” Article 12 of Korea's Act on the Implementation of the Hague Convention explicitly lists consent or subsequent acquiescence as grounds for refusing a return order. Therefore, a spouse’s cooperation or acquiescence can significantly hinder a petition for the child's return.

As this illustrates, the legal interpretation of ‘implicit consent’ is a major point of contention in international family law cases. Even if a trip is initially intended to be a “short visit,” the lack of a clear, formal agreement can lead courts to misconstrue it as de facto permission for a permanent move.

Furthermore, the spouse returning to Korea may immediately file for divorce, a strategy known as forum shopping. Forum shopping is the practice of selecting a court in a country or jurisdiction that is most likely to deliver a favorable judgment. In international divorce disputes, it is common for one party to preemptively file a lawsuit in their home country’s familiar legal system to secure jurisdiction. Once a court in one country assumes jurisdiction over a case, it becomes exceedingly difficult to litigate the same matter in another country, giving a significant procedural advantage to the party who filed first.

In the case mentioned above, the wife initiated divorce and custody proceedings in Korea first, thereby establishing the Korean court's jurisdiction. The husband’s subsequent attempt to have the children returned to their habitual residence through Hague Convention procedures was consequently unsuccessful. These intertwined risks—a Hague return petition being defeated by implicit consent and the strategic use of forum shopping—are common features of international divorce disputes.

The Necessity of Expert Consultation and Proactive Strategy

Unlike domestic divorce, international divorce and child relocation involve a complex web of legal issues, including international treaties, the conflicting laws of multiple countries, and jurisdictional challenges.

Relying on misplaced trust can lead to unforeseen legal pitfalls. Once a dispute arises, it becomes even more challenging to navigate, compounded by language and cultural barriers in a foreign legal system.

Therefore, if you recognize the potential for such a dispute, it is wise to immediately consult an attorney with expertise in international family law before the conflict escalates.

An experienced lawyer, well-versed in the procedures of the Hague Convention and the family law systems of various countries, can provide clear guidance on “what actions to take in which situations to protect your future rights.”

From the outset, a legal expert can assist in securing evidence and preparing proper documentation, minimizing the risk of your actions being used against you in court and ensuring you can argue your case from a position of strength. Remember, the other party may have already sought legal counsel and be strategically preparing to achieve their desired outcome in the divorce and custody proceedings.

The Hague Child Return Claim Proceedings

Experienced in winning various Hague child return cases

Yeohae Law Firm has a range of successful cases, including returning children who were illegally taken to Korea back to their parents in their habitual country of residence through Hague child abduction return litigation, as well as cases where overseas child return claims were dismissed.

Hague child abduction return litigation requires prompt action because the longer the period following the unlawful transfer, the greater the likelihood of an unfavorable decision.

At Yeohae Law Firm, we offer expert assistance from locating the child within Korea to the execution phase following the child return claim litigation.

Why YeoHae? - Highly Skilled and Caring Experts

Since 2015, the Yeohae Law Firm has successfully handled more than 300 international divorce lawsuits in about 29 District Courts in Korea. We have unique expertise to provide optimal legal approach to suits your particular case.

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Over 500 international lawsuit cases whilst more cases closed with our expert advices, the alternative resolutions. Find following sentencing we gained in the court.

Excellent Lawyer Award from Korean Bar Association

Pyoung-ho Kim, Representative Attorney, received the Excellent Lawyer Award from Korean Bar Association recognized his passion and devotion to his cases and clients. We provide specialized lawyer services for all foreigners in Korea.

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