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].
concerned whether a court had the power to order joint custody in a case in
which the parents were in fundamental disagreement.
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
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
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.