International Child Abduction (if taken to South Korea)

International Child Abduction

International child abduction is when a parent or third party violates the custody rights of a sole or joint custodian by taking a child from the country where the child was living to another country against the custodian's will.

A parent who was living in a foreign country brings a child to Korea from a foreign country without spousal consent,

a foreign parent living in South Korea takes their child to their home country without their spouse's consent.    

International child abduction is done to obtain a favorable final judgment in a divorce case (custody designation), for subsistence reasons, etc.

Unlawfully removed to South Korea and detained Case

As a parent has the right to have a child under his or her care for the purpose of raising the child, he or she may request a juvenile trial in a Korean court (Article 2, paragraph 1, item 2, subparagraph 3 of the Family Procedure Act).

Since infantile tribunals take several months, in some cases, you can apply for an infantile pre-disposition to get your child back quickly (Article 62 of the Family Procedure Act).

If a child has been illegally transferred from overseas to Korea, in addition to the above infantile delinquency proceedings, a child return claim may be filed under the Hague Convention on the Civil Aspects of International Child Abduction. 

Read the full text of the Convention on the Civil Aspects of International Child Abduction

The Hague Child Return Claim Proceedings

Experienced in winning various Hague child return cases

Our law firm has many successful cases of returning children illegally removed to Korea to their parents in their country of origin through Hague Child Return Claims.

Hague child return proceedings need to be initiated quickly, as the more time that passes since the child was illegally removed abroad, the more unfavorable the judgment may be.

Yeohae Law Firm's Competitiveness

Yeo Hae Law Firm maintains a high win rate by handling all cases under the responsibility of the lead attorney without an office manager,

Avoiding brokers, expensive advertising, and expensive offices that contribute to high fees,

We strive to provide the best legal services at the lowest possible fee.

Based on this long-standing belief, Yeo Hae Law Firm has successfully handled many cases involving family members and friends of judges, including cases involving family members of the Chief Justice.

Child Return Claims under the Hague Convention on International Child Abduction

The child must have had a habitual residence in a state party to the Hague Convention on International Child Abduction before being removed to South Korea.

The child must be under the age of 16.

And it must not be for any of the following reasons

1. one year has passed since the date of the child's unlawful removal or placement, and the child has already adjusted to the new environment; or

2. the person having custody of the child did not actually exercise custody at the time of the removal or placement or consented to or induced the removal or placement; or

3. there is a substantial risk that the return of the child would expose the child to physical or mental harm or subject the child to other intolerable conditions; or

4. the child has reached an age and level of maturity where it is appropriate for the child to object to the return and for the child's views to be considered; or

5. the return of the child would not be permitted under the Basic Principles for the Protection of Human Rights and Fundamental Freedoms of the Republic of Korea.

The Seoul Family Court has exclusive jurisdiction over child return claims under the Hague Convention and is required to make a decision within six weeks from the date of the claim.

Upon notification by the Ministry of Justice of an application for assistance in the return of a child or notification by the applicant of a Hague child return claim, other proceedings for the designation of a custodian in a Korean court are suspended.

If the child is not returned despite the court's decision to return the child, an implementation order may be issued, a fine of up to 10 million won may be imposed, and the defendant may be imprisoned for up to 30 days.

The return of a child under the Hague Convention is intended to expedite the child's return to the country of habitual residence, but does not determine the child's custodian or guardian after return.

Enforcing a judgment

In the past, the Korean Supreme Court has held that enforcement of a child return claim under the Hague Convention is not possible when the infant itself refuses, as long as the infant has capacity.

In response to diplomatic issues arising from the above enforcement practices, the Supreme Court of Korea enacted a new precedent (Supreme Court Trial Precedent No. 1869) on January 10, 2024.

A new Supreme Court precedent will allow bailiffs to take infants from defendants and deliver them to plaintiffs in child return cases under the Hague Convention on International Child Abduction without asking the infant, "Do you want to go back to your daddy's country?" as of April 1, 2024.

Criminal penalties

A person who extorts or lures a minor is punished by imprisonment for up to 10 years (Article 287 of the Criminal Code), and a person who extorts or lures a person for the purpose of transporting him or her out of the country, or who transports an extorted or lured person out of the country, is punished by imprisonment for not less than two years and not more than 15 years (Article 288, paragraph 3 of the Criminal Code).

The crime of enticement to exploit a minor also applies to foreigners who commit the crime outside the territory of the Republic of Korea (Article 296(2) of the Criminal Code).

Extortion means the act of using assault, intimidation, or illegal de facto force as a means to remove a victim from a free living relationship or protective relationship against his will and bring him under the de facto control of himself or a third party, and whether an act constitutes extortion in a specific case shall be judged based on the relevant circumstances, including the purpose and intention of the act, the circumstances at the time of the act, the manner and kind of the act, the means and method, and the condition of the victim. 

If a minor child is in the peaceful care and custody of one parent in a situation where the parents are divorced or separated, and the other parent breaks that care and custody by assault, intimidation, or the exercise of unlawful de facto force and brings the child under his or her or a third party's de facto control, such conduct constitutes exploitation of the minor, which is punishable unless there are special circumstances.

In addition, if a noncustodial parent takes over a child for visitation and then fails to return the child after the visitation period ends and fails to comply with the court's order to return the child, it constitutes the use of unlawful de facto force against the minor.

Support from the South Korean Ministry of Justice under the Hague Convention on International Child Abduction

If a child is illegally removed or detained in South Korea, the Ministry of Justice may provide the person whose custody has been violated with general information about South Korean law, locate the child, and arrange for reconciliation, but it will not provide a trial or subsidize trial costs.

States Parties to the Hague Convention on International Child Abduction

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