Jurisdiction for Custody in International Divorces: Nationality-Based Jurisdiction under Korean Law

In an increasingly globalized world, family disputes involving dual-national children often transcend borders, creating complex jurisdictional challenges. One such challenge arises in custody battles between a Korean parent and another national parent with a Korean Dual-National Child (All children born to a Korean parent have Korean nationality). IPG Legal is often retained in complex jurisdictional disputes in custody, child abduction, child support, and other family law matters.

The major challenge in navigating these issues is the understanding of Korean Law, and also the law of the residence of the child, and the law of the other nationality of the child, while developing a comprehensive and nuanced plan.

In many cases, only having your Europe-based or American-based lawyer is not adequate, because of the unique nature of Korean Law and the Act on Korean Private International Law.

Nationality-Based Custody
Jurisdiction under Korean Law

Residence-Based Jurisdiction versus Nationality-Based Jurisdiction

The Act on Korean Private International Law (KPIL) Article 59(2), provides the framework for Korean court jurisdiction over child custody where one parent and the child are Korean nationals. This legal standard for jurisdiction is, often, referred to as Nationality-Based Jurisdiction.

Article 59 (Special Jurisdiction over Cases Regarding Parent-Child Legal Relationship)

The court shall have international jurisdiction over cases regarding parental rights, and custody and visitation rights over a minor child, etc., in any of the following cases:

1. Where the habitual residence of a child is in the Republic of Korea;
2. Where one of the parents and his or her child are nationals of the Republic of Korea.

Article 59(2) of the KPIL grants Korean court jurisdiction when one parent and the child are Korean nationals, regardless of the child’s habitual residence. This marks a departure from the global trend embodied in the Hague Convention on the Civil Aspects of International Child Abduction (Korea acceded to the Hague Convention) and the U.S. Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), and the EU Brussels IIB regulations and similar laws that utilize the “habitual residence” status.

The Korean legislative intent behind Article 59 of the KPIL is to have matters of citizens handled in a Korean court notwithstanding the residence of the child. The key is that the child is Korean and one of the parents is Korean, and thus a Korean court under Korean law has jurisdiction over the matter.

In practice, this creates tension in cases of overlapping custody litigation. For example, if a U.S. father files for custody at a New York court after a Korean mother files at the Seoul Family Court, the principle of prior filing (recognized both in Korea and under UCCJEA) should dictate in most situations, however, this is not always the case. Some U.S. state courts and European-nation courts disregard prior filings unless the child is also habitually resident in the filing state/jurisdiction.

Moreover, the recognition of appearance-based jurisdiction in the U.S.—wherein a party’s participation may confer jurisdiction—does not apply under Korean law in family cases. The KPIL explicitly rejects appearance-based jurisdiction for domestic relations matters, reinforcing the preference for statutory jurisdictional criteria such as nationality.

These complex jurisdictional issues in child custody matters involving a Korean child require a strategy-focused legal guide with experience working with law firms outside of Korea. IPG Legal works on matters concerning complex international jurisdictional issues in custody matters, child support, divorce, estate, inheritance, and other family law matters through IPG Legal’s Family Law Team.

IPG Legal provides a Free Legal Consultation over Zoom.

By Jiwon Min
Jiwon Min is a distinguished partner at IPG Legal, one of South Korea’s premier law firms. Jiwon has earned a reputation as one of Korea’s foremost experts in divorce, custody disputes, inheritance, child abduction, and other complex family and estate law matters. She is renowned for her handling of international child abduction cases under the Hague Convention and for her comprehensive legal approach, which combines deep legal knowledge with an empathetic understanding of her clients’ personal challenges. She works, in most cases, with NY Attorney Sean Hayes and Judge Jung – a retired Korean court judge on complex litigation matters.