Jeremy D. Morley
The Supreme Court of Korea issued an extremely important ruling on child custody in May 2020. Supreme Court Decision 2018Meu15534 Decided May 14, 2020 [Divorce].
The issue concerned whether a court had the power to order joint custody in a case in which the parents were in fundamental disagreement.
The governing Korean statutes – Articles 837 and 909(4) and (5) of the Civil Act; Article 2 of the Family Litigation Act, and Article 2 of the Family Litigation Act – provide broad authority for the courts in Korea to issue orders concerning child custody.
The Supreme Court restated the fundamental principle that the determination of the custody upon a divorce must be made in the best interest of the minor child's growth and welfare. In this regard, courts should take into account the gender and age of the child, the presence of the parents' love for and intent to rear the child, the financial ability of each parent to provide care for the child, the details of the manner of child-rearing adopted by each spouse, the reasonability and appropriateness thereof, the likelihood that their child-rearing styles can strike a balance, the level of intimacy between the child and each parent, and the wishes of the minor child.
The specific issue before the Court was whether the lower court had properly ordered joint custody of the child when the parents were in fundamental disagreement concerning matters relating to the child's welfare.
The Court ruled that an award of joint legal custody to both divorcing parents was not precluded by the governing legislation, since the statutes did not stipulate that a court ought to designate only one of the parents as a legal custodian or a physical custodian.
However, it ruled that, before ordering joint custody, a court must exercise caution by taking account of the fact that a divorce is necessarily attributable to a serious conflict, such as torts, desertion, unfair treatment or other reasons that have made the continuation of the marriage impossible.
The Court stated that sharing of custody rights can create problems in that the child often has to suffer the inconvenience of alternating between the separate residences of the parents, which can be especially problematic if the child is in school. The child also risks experiencing confusion in value judgments or an unstable living situation.
Furthermore, if the parents are in conflict over parenting styles, the negative impact on the child outweighs the positive impact to be achieved by shared custody.
Therefore, in the case of judicial divorce, the appointment of both parents as joint custodians of a child should only be allowed only in cases where the conditions for shared custody are fulfilled. Thus, the courts must comprehensively consider (i) whether both parents are prepared to share joint custody of the child; (ii) whether there is a substantial difference in a set of values they have in terms of child rearing; (iii) whether both parents live nearby and the environments where the child will be reared are similar so that economic and time loss the child will incur is kept minimum and that the child will have no difficulty adapting to the environment; and (iv) whether the child has rational and emotional responsiveness to adjust to shared custody.
In the specific case before the Court, the lower court had designated the parents as joint custodial parents and joint residential parents of the child, with one parent having the child each week from Sunday at 17:00 to Friday at 17:00, and the other parent having the child each week from Friday at 17:00 to Sunday at 17:00 as a shared parenting method.
That determination had been made despite the fact that each parent had demanded sole custody and there had apparently not been an adequate analysis of the critical issues of “mitigating time and money loss and psychological instability potentially suffered by the child, who will have to alternate between the residences of the Plaintiff and the Defendant, follow the parenting decisions of each parent, and adjust to hugely disparate physical environments.”
For these reasons, the Supreme Court overturned the decision of the lower court and remanded the case for a new determination to be made consistent with the Supreme Court's opinions.