Parental Authority, Custody and Visitation

The greatest weight is given to who has actually cared for the child until now and where and how the child is living now. Courts tend to prefer the side where the child's life will not be greatly disrupted, so it is important to show with records of daily life that you have been the primary caregiver.

Financial ability is a factor but not a decisive one, because if the parent with lower income becomes the custodial parent (양육자), this can be made up for with child support (양육비) from the other parent. Gender is not a standard either, and it is not unusual for fathers to be designated as the custodial parent.

• Who has mainly cared for the child (school drop-offs and pick-ups, doctor visits, meals, school meetings)
• The child's age and sex, and whether siblings can be raised together
• The desire to raise the child, and housing and work arrangements after the divorce
• Whether there are people, such as grandparents, who can help with child care
• The child's wishes (the court must hear the child's opinion if 13 or older)
• Whether there are problems of violence, neglect or drinking
• An attitude that respects the child's relationship with the other parent

If custody is disputed, a family investigator interviews each parent, meets the child, and if necessary visits the home during the family investigation (가사조사). The report the investigator writes is an important piece of material when the judge decides the custodial parent.

In the interview, rather than listing the other parent's faults at length, you should be able to answer about concrete daily life, such as the child's daily routine, the school and academies the child attends, and who takes the child to the doctor when sick. Preparing a parenting plan in advance, stating where you will live after the divorce and who will look after the child after work, makes the interview easier to prepare for.

Once a separation begins, the child-rearing situation from then on affects later decisions. If one parent leaves with the child and raises the child for a long time, that situation can become fixed, so if you have been separated from your child, respond without delay.

When you file for divorce mediation or a lawsuit, you can also apply for pre-trial measures (사전처분) to designate a temporary custodial parent and set temporary child support and temporary visitation. If the other parent takes the child and does not return the child, we consider a ruling ordering the child to be handed over (유아인도) together with a pre-trial measure. On the other hand, taking a child out of the home unilaterally can look bad to the court, so be careful.

Visitation (면접교섭) is both a parent's right and the child's right. If you only set a frequency, such as every other weekend, you will clash every time over the time and place. It is better to set the start and end times, the handover location, whether the child stays overnight, school vacations and holidays, and even video calls.

If the custodial parent blocks visitation without a valid reason, you can apply to the family court for a performance order (이행명령), and if the performance order is also ignored, an administrative fine of up to KRW 10 million may be imposed. Conversely, if there are circumstances that could harm the child, you can ask the court to restrict visitation or to have it take place at a third location such as a visitation center.

Even the person with parental authority (친권자) or custodial parent set at the divorce can be changed by applying to the family court if it is needed for the child's welfare. Typical cases are when the custodial parent neglects the child, the child strongly wants to live with the other parent, or the custodial parent's circumstances have changed greatly.

A change often does not happen just because the parents agree; it usually has to go through a ruling by the court. You need to explain with material such as school records and health records how the child is doing now and what would improve with a change.