Moving abroad with your child after divorce

Before making plans, look at the following.

When you tell the other parent about the plan also matters. If you give notice just before leaving, the other parent may apply first for a pre-trial measure or register an objection to the passport being issued, and the court may also see you as not having respected the process. Give written notice well in advance.

• Check who is listed as the person with parental authority on your child's basic certificate. The procedure differs depending on whether it is sole or joint.
• Reread the visitation provisions in the judgment or mediation record. The frequency and places will have been set on the assumption that you live in Korea.
• Check whether the country you are moving to is a party to the Hague Convention on the Civil Aspects of International Child Abduction.
• Put in writing your child's living plan after the move, such as school, housing and work.

If parental authority remains joint after the divorce, both parents often need to agree on important decisions such as issuing the child's passport and leaving the country long-term. The Ministry of Foreign Affairs also runs a system under which, if one joint holder of parental authority registers an objection to the child's passport being issued, the other cannot obtain the passport.

If the other parent ultimately refuses to consent, you can ask the family court to change the person with parental authority (친권자) or make a disposition on child-rearing and have the court decide. You need to show both why the move is necessary for the child and how the child's relationship with the other parent will be maintained.

If you reach an agreement, put in writing the destination country and duration, when the child will visit Korea, and how visitation (면접교섭) will work, and record it in a mediation record (조정조서). Verbal consent easily becomes a 'that never happened' dispute later.

If a child is taken to a Convention country in breach of one parent's custody rights, the parent left behind can request the child's return through that country's Central Authority. Korea has the same procedure under the Act on the Implementation of the Hague Convention on the Civil Aspects of International Child Abduction.

Criminal issues depend on the case. In an en banc decision of June 20, 2013 (2010도14328), the Supreme Court held that it was not abduction where a parent who had been peacefully caring for the child left the country with the child, but the conclusion may differ if the other parent's custody was disrupted by assault, threats or unlawful force. Leaving the country without consent can also be grounds for a request to change the custodial parent.

The parent who took the child faces return proceedings in the other country's court, and the child may have to come back before even adjusting to the new environment. In the end the heaviest burden falls on the child, so moving through the proper procedure is the path that serves the child.

Once you move abroad, it is hard to keep the existing visitation arrangement as is. Setting new terms for regular video calls, the child's stays in Korea during school vacations, sharing airfare, and the currency and method for sending child support, and recording them in a mediation record, reduces disputes later.

If you are the parent staying in Korea with the child leaving, consider applying for a pre-trial measure (사전처분) and registering an objection to the passport being issued as soon as you learn of the other parent's plan to move.

Set the days and times for video calls with the time difference and school schedules in mind, and write down in advance who will look after the child and where while the child is in Korea. Small issues, such as who buys the plane tickets, often turn into conflicts.

At Jisan Law, the managing partner consults with you personally, checks the status of parental authority and the plan to move, and prepares a proposed agreement with the other parent or a petition to the family court. If you are the parent whose child would be leaving, we also consider procedures to prevent the departure.