Korean Child Custody and Paternity Rights in Korean Divorce Cases

When filing for divorce at a Korean court—whether it is uncontested (mutual consent) or contested (Korean court-ordered)—and minor children are involved, the divorcing parties (or the Korean Family Court) must decide who shall hold paternity rights and who shall have custody rights over the children. 

Korean Mutual Consent Divorce

In a mutual consent divorce, a written agreement regarding the custody and paternity rights of the minor children must be submitted to the Family Court in Korea along with the divorce application. Since mutual consent divorces are based on the parties’ agreement, it is generally expected that they shall also reach an amicable decision on the custody and paternity rights of their children. Normally, the Korean Family Court shall respect the wishes of the divorcing parties and approve of the divorce application if all matters are amicably resolved.

Korean Contested Divorces

In contested divorces in Korea, when the parties cannot come to an agreement, the Korean Family Court will designate who shall hold paternity rights and who shall have custody of the minor children. The court in Korea may encourage the parties to negotiate, but if no agreement is reached, the Korean court will make a decision based on factors such as the child’s wishes, age, the parents’ financial situations, and other relevant circumstances. This decision can be made at the court’s discretion or upon a request from one of the parties. 

The Supreme Court of Korea has outlined key factors to be considered when determining paternity rights and custody in Korean divorce cases. These include the child’s gender and age, the affection and willingness of each parent to care for the child, each parent’s financial ability to support the child, the closeness of the parent-child relationship, and the child’s own wishes. These factors ensure that the decision is made in the best interest of the child’s development and well-being (Supreme Court ruling, May 8, 2008, Case No. 2008Mu380). 

Separation of Paternity Rights and Custody and Joint Designations in Korean Courts 

Is it possible to separate paternity rights from custody, or to designate joint paternity rights and custody in Korean courts? Although uncommon, it is possible for Korean courts to separate paternity rights from custody or to designate both parents as joint holders of paternity rights and custodians in contested divorce cases.  However, such decisions are made with great caution and are only allowed in exceptional circumstances by Korean courts. 

The Korean Supreme Court has confirmed that, in contested divorce cases in Korea, the separation of paternity rights and custody, or the joint designation of both, is possible but requires a careful and thorough evaluation because of the risk of future conflict.

For joint custody to be granted in Korea, specific conditions must be met. These include the parents being prepared to accept joint custody, having similar child-rearing values, living close to each other, and providing a stable environment without significant economic or logistical challenges. Additionally, the child must be emotionally and mentally mature enough to adapt to a joint custody arrangement (Supreme Court ruling, May 14, 2020, Case No. 2018Mu15534). 

Conclusion 

In the Korean Court, the decision on paternity rights and custody in contested divorce cases is based on various factors, such as the child’s gender and age, each parent’s affection and willingness to care for the child, the parents’ financial capability, the closeness of the parent-child relationship, and the child’s own preferences. Due to the complexity of these considerations, it is essential to consult with an experienced divorce attorney who can offer guidance throughout the litigation process and help strengthen the case for a favorable outcome. 

by Jiwon MIN
Attorney Min is the head of IPG Legal’s Family & Divorce Law Practice Group. Schedule a call with an attorney at: Schedule a Call.