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Subject	*A Research on the Effective Implementation of the Family Law System Regarding Custody, Guardian, and Visitation Bargaining Rights ~2002**

A Research on the Effective Implementation of the Family
Law System Regarding Custody, Guardian, and Visitation
Bargaining Rights*1

Deukkyoung Yoon, Fellow, KWDI

Background and Purpose of Research

Recently, the number of children from divorced families is rapidly increasing
with the increase in divorce rates. According to the statistics by the Bureau of
Statistics, as of 2001, the cases of having children under 20 years of age (70.3%)
at the time of divorce are much higher than those of not having children
(29.7%), which implies that there are many minor children who suffer from the
divorces of their parents.

There are also research results that show that the cases of the mother bringing
up the child are twice more than the cases of the father doing it, and that 60%
of the women who raise children after divorce are not getting paid child support
properly.

Accordingly, we can see how divorced women carry the burden of winning
bread, rearing children, and making social adjustment, and the difficulties would
cause serious threats to the well being of the children of divorced families.

According to the revision of the Civil Law in 1990, the Family Court may
decide on the child custody and guardianship at the request of the parties when
no agreement was reached between the spouses at the time of divorce. A new
system was introduced where the parent who does not have child custody shall
have visitation bargaining rights.1)
______
* This is a summarized version of “A Research on the Effective Implementation of the Family Law System Regarding Custody, Guardian, and Visitation Bargain Rights”(carried out by Deukkyoung Yoon, Fellow of KWDI, and Yong Ah Chang, Officer of the National Human Rights Commission) which was published as KWDI 2002 Research Report 210-23.
______

The purpose of this research is to review the current implementation and
problems of the provisions of custody, guardian, and visitation bargaining rights
in the Civil Law as it has been 10 years since the provisions were newly
introduced, to refer to the legislation of other countries, and to suggest the ways
for more effective operation of these systems.

Research Methods

1. Literature Review

We researched and reviewed domestic and international literature and cases
related to custody, guardian, and visitation bargaining rights. For this purpose, we
utilized the Yearbook of Justice by the Office of Court Administration and the
statistical data of the Bureau of Statistics. Various data were collected and
utilized such as court cases of other countries, articles, and counseling reports.

2. Analysis of Cases and Counseling

We analyzed about 100 cases of the Family Court, Municipal Court, Superior
Court, and Supreme Court, and presented the counseling cases and Internet cases
of the divorce counseling centers including the Family Legal Aid Center.

3. Interview Survey of those Involved

In order to review the current implementation of the family law regarding
custody, guardian, and visitation bargaining rights and problems in the process,
interview surveys were conducted with 5 divorced people, 5 lawyers, 3 judges of
Seoul Family Court, 3 Family Affairs Investigation Officers of Seoul Family
Court, 2 Coordination Committee members of Seoul Family Court, and 4
____________
1) The law that provides for custody, guardian, and visitation bargaining rights is the Civil Law,and the laws that regulate family relations in Chapter 4 (Relatives) and Chapter 5 (Inheritance)are called “the Family Law”.
____________

counselors from counseling centers.

4. Consultation with Experts

After the draft report was made, it was sent for consultation with experts
including professors, lawyers, judges, and counseling center staff who have dealt
with or have research experiences in custody, guardian and visitation bargaining
rights.

The Family Law System Regarding Custody, Guardian, and
Visitation Bargain Rights: Summary and Problems

The Civil Law defines custody as “the rights and responsibility to protect and
raise a child.” It is interpreted as having the characteristics of rights and duty of
the parents to assure the well-being and interest of the child by providing
adequate rearing, supervision and protection, and property management of minor
children.

Many countries are switching from the fathers’ right principle to the parents’
equal rights principle in the legislation concerning custody. However, the Western
ideas of “the well-being and interest of the child”, and “the best interest of the
child” are not fully established in the Korean Civil Law.

When custody is divided into that of personal matters and that of property
matters, guardianship in general refers to the substantial part of personal matters
of the child. It mainly consists of providing a place for rearing and education,
discipline, and the right to request the return of a child against a person who is
illegally holding the child.

And the visitation bargaining rights refers to “the rights of a parent, who is in
fact not rearing the child because he or she is not a custodian or guardian, to
directly contact and interview the child.” It includes interview, short-term lodging
and trip, exchanging letters, telephone conversation, and exchange of pictures and
gifts. This system was newly introduced in January 13, 1990 when the Civil Law
was revised.

As to the problems related to the current custody system, it is hard to find a
provision in the definition of custody that takes into consideration the position of
the child. And there is no clear distinction between the exercise of guardianship
and custody at the time the parents are divorced, and there is no standard set that
can reflect the “best interest of the child” when the custodian is decided. The
law should be revised to fairly reflect the interests not only of the parents but
also of the child, and the aspect of protection should be emphasized.

The most urgent issue regarding the exercise of guardianship is child support.
Direct and indirect measures to enforce child support should be used, and there
is need to introduce the system where the government can pay child support to
the needy parent and collect it from the party that has the obligation to pay child
support.

There is one provision in the Civil Law about visitation bargaining rights, but
the content is not sufficient, and there is no provision for the enforcement of
visitation bargaining rights when visitation is denied or hindered. It is necessary
to grant the visitation rights to the third party other than parents, and concrete
and detailed standards should be set as to the scope and enforcement of visitation
bargaining rights.

Current Implementation of the Custody, Guardian,
and Visitation Bargaining Rights

1. Relevant Statistics

- There were 135,000 divorces in 2001, which is a triple increase over 45,700
divorces in 1990. The divorce rate, which shows the number of cases per
1,000 persons was 0.4 case in 1970, 1.1 case in 1990, and increased to 2.5 in
1998 to stay at that level up to 2000 and rapidly increased to 2.8 in 2001.

- Among the 135,014 divorces reported in 2001, 111,688 cases (82.7%) were
consensual divorces, and 22,646 cases (16.8%) were court divorces. There were
much more consensual divorces than court divorces.

- As of 2001, those who had children less than 20 years of age at divorce
A Research on the Effective Implementation of the Family Law System Regarding Custody, Guardian, and Visitation Bargaining Rights 5
accounted for 70.3% (34.6% had 2 children under 20 years of age, 31.2% one
child, and 4.5% more than three children. and 29.7% had no child). We can
see there were a considerably large number of minor children who suffered
from their parents’ divorces.

- Among the 43,588 court divorce cases in 2000, 53.8% asked only for divorce
without asking for custody or guardianship. More than a half of the cases were
the divorces without any consideration to child rearing, which implies that the
children of divorced families could be neglected.

2. Cases of Custody, Guardian, and Visitation Bargaining Rights

- The purpose was to review what the problems are that the divorce or the
would-be-divorcee face legally in relation to the rearing of minors, and how
these problems are dealt with, and what the experts think about it.

- After surveying the counseling cases on the Internet sites related to divorces
and legal issues and conducting case studies with 5 divorcees, we presented 49
cases.

- There were cases where the mother could not ask for child custody because she
wanted to get divorced, among the cases where the father is designated as
custodian or guardian in consensual or court divorces. She gives up child
custody, as her husband wants in order to rush the divorce process. This could
bring about undesirable results for children.

- Many ask whether a housewife could have child custody, because many people
still have anxiety that a divorced woman might not be given child custody
unless she finds employment, and many are still under the influence of the
pre-1990 law.

Analysis of Cases on Custody, Guardian,
and Visitation Bargaining Rights

Looking at the cases related to custody, guardian, and visitation bargaining
rights at divorce, there are not too many cases on visitation rights, and there are
relatively more cases on custody, guardian, and child support. The followings are
the characteristics and problems from the analysis of 100 cases since 1990.

- In the appointment of custodian or guardian, the petitioner and the appointee
were identical in most cases.

- Priority consideration is given to the child rearing practices up to the present
moment when appointing custodian or guardian, which might work against
women.

- As to how much a child’s opinion is reflected in the decision, the case should
record the opinion of the child when he or she is over 15 years of age, to
make clear that the court respects the opinion of the child.

- As to the calculation of child support and the determination of child support,
it was mostly 150,000 Won up to early 1990s and between 200,000 and
300,000 since the mid-1990s although there are individual differences as to the
parents’ income, the age of the child, and other issues. The fact that child
support is determined as the same amount for different cases proves that those
factors are not given proper consideration.

- Therefore it is desirable that child support is determined by the calculation
method prepared objectively and concretely. And there is need to reconsider
why child support should remain the same until the child becomes an adult,
while minimum living expenses change every year.

- The visitation bargaining method is the same in Europe and the U.S., as the
court decides on concrete time and date, location, and methods. Although
visitation is planned in concrete, it should be managed flexibly since there
could be unexpected situations where visitation might become infeasible due to
the child’s school events, personal situation, disease, and the personal reasons
of the guardian.

International Agreements and Foreign Legislation

Convention on the Rights of the Child and the United Nations Convention to
Eliminate Discrimination Against Women proclaim the principle of the equal
responsibility of the parents in child rearing, and following are legislation and
systems concerning child rearing in Japan, Germany, England, and the U.S.

∙Japan

Japan provides for advisement, order, and bailment for the enforcement of
child support. The investigation officer of the Family Court is in charge of
giving advisement, verifying payment, explaining forced payment, and sending
the notice to the responsible party.

∙Germany

Germany introduced the Assistant system in 1998 to collect child support. In
this system, a single parent who raises a child can request child support from a
family welfare institute, and the institute will become the Assistant of the child.

In 1979, “The Law regarding the pre-payment of child support” was legislated
and came into force. The government pays child support to the children who
immediately need child support, and collects the money later on from the parent
who has the responsibility to pay.

And Germany recognizes the visitation bargaining rights as the right of the
child, unlike Korea, and recognizes the visitation bargaining rights to the third
party other than parents (grandparents, siblings, etc.).

∙England

The purpose of the Child Support Act legislated in 1991 is to secure living
expenses required for child support from the parents firmly, fairly, and speedily,
and its major contents deal with how to calculate and collect child support.

This law provides detailed regulations and calculation formula regarding child
support, and is evaluated to have secured accuracy, uniformity, and fairness.

∙United States

The child support system was rapidly reformed in the U.S. with the legislation
of “the Family Support Act”. Before then, each state had the system of deducting
child support from wages as a means of enforcing child support since the
revision of the Social Security Act in 1984. However the deduction was confined
to the cases where there was one-month delay in child support payment. But
with the revision of this law in 1988, child support was to be deducted from
salary or wages even when there was no delay.

Under the system, the employer of the parent who does not rear the child has
the duty to cooperate such as deducting child support from wages and salaries
and providing information.

Suggestions for the Effective Implementation of Custody,
Guardianship, and Visitation Rights

Based on the review of the details, current implementation practices and
problems of custody, guardianship, and visitation rights and on the implications
from international agreements and foreign legislations, we will make suggestions
to make sure that custody, guardianship, and visitation rights system can be
effectively implemented. We will make suggestions in two parts: what needs to
be improved, and what conditions should exist for the implementation of the law.

1. Improvement in Laws

A. General Provisions on the Well being and Interest of the Child should be
Included in the Civil Law.

The basic principle of today’s family law is the well being and interest of the
child. The principle of well being and interest of the child means the principle of
giving priority to the well being and interest of the child. In other words, it
means that when the court makes decisions on child rearing, child’s property
management, or the utilization of the property income, the well being and interest
of the child should be given priority consideration.

The idea of the well being and interest of the child means that the well being
A Research on the Effective Implementation of the Family Law System Regarding Custody, Guardian, and Visitation Bargaining Rights 9
and interest of the child should be considered first when the parents cannot reach
consensus on the matters related to the minor, including custody, exercise of
custody, loss of custody, the appointment and change of custody and
guardianship at divorce, decisions related to child rearing, and the limitations or
exclusion of visitation rights. The current law expresses this principle only in the
visitation part and in the principle of mediation of the cases related to a minor
child.

Therefore, it is desirable to revise Provision 2 of Article 837 of the Civil Law
which reads: “the Family Court decides on the matters required for child rearing
at the request of the party and considering the age, financial situation of the
parents and other issues...” into: “the Family court decides on the matters
required for child rearing at the request of the party and considering the best
well being and interest of the child.”

B. The Provision that Sets the Age Limit on the Hearing of the Childs Opinion
as 15 Years of Age should be Revised.

Article 100 of the Family Law Procedure provides that the Family Court shall
hear the opinion of a child when he or she is 15 years of age or more before
making decisions on the disposition and change regarding child rearing, limitation
and exclusion of visitation rights, and appointment and change of a custodian.

The law provides for the hearing of a child’s opinion, because the child who
is directly influenced by a divorce should be able to express his or her own
opinion, and the opinions of the children need to be taken into consideration
regardless of their ages, reflecting the intimate relationship that has been built.

Therefore, the current law that sets the age limit to 15 years should be revised
to read “the opinion of the child should be heard when the child can clearly
express his or her own opinion.”

C. The Law should Provide that Consensus on Child Rearing is a Pre-Requisite
for a Divorce.

Under the current law, the court verifies the intention of the parties to have a
divorce, but does not verify whether there is consensus between the parties
regarding child rearing after the divorce. And even when consensus between the
parties is not sufficient for the protection of a child, the court cannot refuse to
verify the intentions for a consensual divorce, as long as there is a consensus
between the parties to get divorced.

Therefore, in order to protect a minor child, it is necessary to revise the law
so that the intention to divorce may be verified only after measures are taken for
post-divorce child protection. Therefore, a divorce may not be granted unless it is
recorded on the divorce report what the agreement is concerning post-divorce
child rearing, who would be the custodian, and who will pay how much child
support, and how visitation would be arranged.

D. Child Support System should be Improved.

When a divorced woman brings up a child, the most serious difficulty she
faces is the child support issue.

In reality, many women do not get paid child support properly despite the
agreement on child support or court decisions.

Therefore, it is an urgent task to develop effective ways to assure the payment
of child support.

First, the law should provide for the calculation formula for child support so
that such practices as paying 300,000 Won per child in almost all the cases
related to child support should be stopped and that child support amount can be
determined flexibly based on comprehensive consideration of income, amount of
child expenses, and property size.

Second, it is necessary to introduce the pre-paid child support system so that
the government could paychild support first to the children who need child
support and then collect it from the party responsible for child support.

Third, the public child support trust system should be introduced.

There are many people who do not pay child support even though it was
agreed upon during a consensual divorce or court divorce, and it is impossible to
enforce the decision when the other party does not have property.

The court can ask them to put child support money as public trust at the court,
and the family court may pay the child support every month from the trust. If
the order is not carried out, an application for the verification of consensual
divorce may be dismissed. Child support can be assured when the public trust of
child support is required as a pre-condition for divorce.

E. Visitation System should be Improved.

There should be provisions on the exercise of visitation and the guarantee of
its implementation. In other words, it is necessary to newly introduce a provision
that says “the exercise and scope of visitation rights are based first on the
agreement between the parties, and the family court will decide at the request of
the parties when an agreement is not or cannot be reached.” In order to
guarantee the implementation, a provision should be introduced to read: “the
Family Court coordinates, supervises and makes necessary dispositions when the
exercise of visitation rights is denied or hindered.”

And it is also necessary to provide that visitation rights are recognized also for
the third party besides parents who takes interest in the child including direct
ascendants or siblings.

And it is necessary to newly establish concrete and detailed standards or
provisions on the scope of the exercise of visitation rights and on assuring its
enforcement. A system should be introduced at the same time so that the
custodian and the party with visitation rights could be educated for a certain
period of time to be notified of the detailed standards or provisions at the same
time.

2. Suggestions for the Enforcement of the Law

A. Family Courts should be Established Nationwide.

The family court that deals with family affairs was only in Seoul up to 2000,
and the district courts of the Family Court have been established in Busan,
Daegu, and Gwangju areas. More family courts should be established for easy
access of the general public so that people could have expert legal protection that
takes into consideration the special nature of the family and social impact.

A legal system should be developed so that the family courts can be
established nationwide, family cases may be closed to the public, and the issues
can be solved through mediation and conciliation as much as possible with
consideration for the rights and interests of the child rather than based on black
and white judgments.

B. Family Mediation Service should be Actively Utilized.

Although the Family Law Procedure Act provides for the principle of
pre-divorce mediation, the system is not actively utilized. Mediation system has
the merit in that both legal solutions and mediation of human relations can be
achieved through the same procedure. Therefore, it is to fully utilize the
patronizing function of the family court to actively utilize the family mediation
service not only in divorce but also in the appointment and change of a
custodian.

C. Specialization is required of the Family Court Judges.

In order to develop the Family Court, special consideration should be given
and the opportunities for encouragement should be regularly provided so that the
judge can work with the feeling of calling as experienced lawyer and not only as
a judge of black and white.

D. It is Necessary to Establish the Family Counseling Center and Develop
Networks with Professional Counseling Centers.

It is necessary that the Family Court introduce family counseling for the
parties who cannot hire an attorney on their own. There could be disputes as to
whether family counseling is the proper task to be dealt with by the Family
Court. But considering the idea of the family judgment system or the raison
d’etre of the Family Court, we can see that such counseling is the task that
constitutes the family judgment procedure or mediation procedure in a broad
sense.

Family counseling, along with mediation, is a system that reveals the
characteristics of the Family Court, and its development will be directly
proportional to the development of the family court. At the present time,
adequate family counseling could not be provided due to such unsolvable
problems as counselors and facilities and so on, and just information is being
provided. However there is a need to make efforts to develop training programs
for the staff and to promote the expertise of counselors.

E. Social Education to Prevent Divorce should be Promoted.

While it is meaningful to discuss a divorce procedure and what to do after a
divorce, it is also necessary to make efforts to prevent a divorce.

Therefore, there should be education and training for adults on how to prepare
for marriage, the importance of communication and understanding between
spouses, and how to make compromises to solve marital conflicts. Communication
training should be provided for spouses so that the married couple
can seek the help of an expert to facilitate mutual communication and
understanding when they face difficulties that they cannot solve on their own.

REFERENCES

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Kim, Sicheol (2002). “Practices of Family Mediation”, Research on Practices, Seoul Family Court, pp.401-514.

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Michael Gremann und Joachim Beinkinstadt (1998), Das Recht der Beistandschaft, Boorberg.

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http://www.nso.go.kr

DATE: 2007.07.23 - 10:15

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