Choosing the custodial parent: what comes before financial means

What parents fighting over custody usually worry about first is money: whether they will lose their child because they earn less than the other parent, or whether being the father puts them at a disadvantage. What the court actually gives weight to lies somewhere a little different.

There is one standard: the child's welfare

Articles 837 and 909 of the Civil Act provide that if the parents cannot agree, the family court decides the custodial parent (양육자) and the person with parental authority (친권자) based on the child's welfare. Who broke up the marriage is a matter for compensation for emotional distress, and is not in itself decisive in deciding custody. This means that even a spouse who had an affair can become the custodial parent if they have taken good care of the child.

Parental authority and custody can be given to different people, but in practice they are often given to the same person. This is because the child's daily life is less disrupted if the parent living with the child can handle matters such as school, hospital visits and opening a bank account on their own. Joint parental authority or joint custody is also legally possible, but since it requires the parents to live nearby and consult often, it is hard to have it accepted in cases with intense conflict.

The circumstances given the most weight

What the court considers most important is who has actually been caring for the child so far, and where and how the child is living now. Courts tend to favor the side where the child's life will be least disrupted, so having been the primary caregiver stands at the center of the judgment.

• Who has mainly handled taking the child to and from school, meals, hospital visits and school meetings
• The child's age and whether siblings can be raised together
• Housing and work arrangements after the divorce, and who can help with care
• The child's wishes (if the child is 13 or older, the court must in principle hear the child's views)
• Problems such as violence, neglect or drinking
• An attitude of respecting the child's relationship with the other parent

Financial means and gender are not decisive

If the parent with less income becomes the custodial parent, this can be made up for by receiving child support from the other parent. So financial means are a factor, but custody is not decided on that alone. Gender is not a standard either. If the father has actually been the main caregiver and shows a plan to raise the child stably after the divorce, he can be designated as the custodial parent.

The child's wishes are given important consideration, but they do not simply become the conclusion. Under Article 100 of the Rules on Family Litigation, the court in principle hears the views of a child aged 13 or older, and even with younger children, their feelings are sometimes explored during the family investigation (가사조사). Signs that a parent pressured the child to choose a side may actually be assessed unfavorably.

The moment separation begins is important

Once separation begins, the care arrangements from that point affect the later judgment. If one parent takes the child and raises them for a long time, that situation can become entrenched, so if you have been separated from your child, do not delay applying for designation of a temporary custodial parent through a preliminary disposition (사전처분). Conversely, taking the child away without the other parent's knowledge may look bad to the court, so be careful.