If a couple having children is to divorce, who to foster children will be a critical issue. In this posting, I’m going to cover what Korean law prescribes on custody and mention several key points to be considered when you insist your custody.
1. General Process
In the first place, the first paragraph of Article 837 of Korean Civil Act (hereafter referred to as the “Act”) states that “(t)he parties shall determine by agreement matters concerning fostering their children”. According to the second paragraph of the Article of the Act, the agreement above “shall include 1. Decision on the custodian; 2. Child support; 3. Visitation right and methods thereof”. However, in case the two parties fail to agree on the matters on raising their children, the fourth paragraph of the Article of the Act prescribes that “the Family Court shall decide it upon a request of the party or ex officio”, matters related to fostering, taking consideration of children’s intention and age, each parent’s financial status and other circumstances.
2. What factors are considered when a judge determines who to foster the children?
According to the third and fourth paragraph of the Article 837 of the Act, when a judge decides on who will foster the children, children’s intention and age, each parent’s financial status and other circumstances will be taken into consideration. To put it concretely, those three things below shall be mainly considered;
① The suitableness for fostering children;
② The bond between a parent and children;
③ Children’s intention
First, as for the suitableness for fostering children, the Family court shall take into consideration the factors including each parent’s physical and psychological condition, financial environment, residential and educational environment, chance for getting help from other family members, children’s age and sex, children’s progress in physical and mental state, the possibilities for adapting new environment and each parent’s violence inclination.
Second, the bond between the parent and the children shall be a critical issue when determining who is to foster the children. If the other party has raised the children but you want to foster them, it shall be apparent that your fostering will be more desirable to the children’s health and welfare. However, one party shall not take the children to his/her residence without other party’s consent. If so, it might be an unfavorable factor for you to take custody.
Third, children’s intention shall be taken into consideration. The Family Court shall not only listen to the children’s statement but also observe the children’s attitude and behavior. If a child is 13 years or older, the judge shall listen to his or her opinion.
3. How much is child support?
Many people wonder whether the one having no income shall be responsible for child support. In a word, YES! The Family Court has guideline to estimate child support based on the ages of the children and the parents’ total income. In short, if there are two children at age 2 to be supported, the child support per month for them may be decided from 532,000 KRW to 1,753,000 KRW. As I mentioned, the amount may vary with the parents’ total income. However, the guideline is not absolutely applied but is just a guideline. If you consult a lawyer, you may be provided with detailed information on child support.
If you have any further inquiries, please request a consultation (https://lawyerhwang.com/consultation/). My office is located near Gyodae subway station in Seoul.