CONTENTS
- 1. Change of Custody, the Detailed Circumstances
- - Change of Custody, the Applicable Statutes
- 2. Change of Custody, the Determination of the Court of First Instance
- - Change of Custody, the Determination of the Appellate Court
- 3. Change of Custody, Daeryun's Strategy
1. Change of Custody, the Detailed Circumstances
The detailed circumstances of this action concerning a change of custody are as follows.
A (the father) and B (the mother), who registered their marriage in 2020, had a child in 2021 and continued their married life.
Then, around August 2022, B left home with the child and, about a month later, returned the child to A of her own accord.
Afterward, B came back home two months later but then left home again, and from that point the two began living separately.
In this process, B filed a petition for conciliation with the court against A, seeking divorce, consolation money, and division of marital property, and asking to be designated as the holder of parental authority and the custodian of the child.
On the same day, A filed a complaint seeking divorce and consolation money and asking to be designated as the holder of parental authority and the custodian.
Change of Custody, the Applicable Statutes
🔗A change of custody is recognized where it is unavoidably necessary for the welfare of the child, or where, owing to a change in special circumstances, the caregiving environment of the person currently raising the child is found to be unsuitable.
The grounds on which a change of custody may be sought are as follows.
✓ Where visitation is not being properly carried out
✓ Where the child is continually subjected to abuse, such as physical violence or verbal abuse, or is not being properly cared for with respect to meals, compulsory education, and the like
✓ Where the child's wishes have changed
✓ Where there has been a change in the caregiving environment due to a decrease in the custodian's income, remarriage, or deterioration of health
2. Change of Custody, the Determination of the Court of First Instance
The single-judge division of first instance that heard the action concerning the change of custody issued, in July of last year, a preliminary disposition ordering that temporary visitation be conducted.
A objected to this, and accordingly the division issued a preliminary disposition ordering that temporary visitation with B be conducted twice a month.
Thereafter, as the scope of the claim in the case expanded, a panel division took charge of the case, and in January of this year the panel division issued a preliminary disposition stating, “A shall deliver the child to B by February; until then, the temporary custodian shall be A, and thereafter B shall be designated as such.”
A, who objected to this, immediately filed an appeal against the order.
Change of Custody, the Determination of the Appellate Court
The court of second instance that heard the appeal on the change of custody reversed the determination of the first instance and designated the father, A, as the temporary custodian.
The court explained, “There is no problem with A's caregiving environment, his affection and will to raise the child, his economic ability, or his closeness with the child, and it is difficult to find that changing the current caregiving status to designate B as the temporary custodian would benefit the child's healthy growth and welfare.”
In particular, the court emphasized the importance of the ‘principle of continuity*’ in caregiving.
It added, “The mental shock and confusion that the young child would experience due to changes in the child's residence and living environment are unavoidable. Therefore, it is difficult to find that artificially changing the child's living environment would benefit the child's healthy growth and welfare.”
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3. Change of Custody, Daeryun's Strategy
We have analyzed a High Court judgment holding that, in a change-of-custody action, the current custodian should maintain custody in accordance with the principle of continuity.
This judgment showed that, as divorce cases increase and family structures and environments become more diverse, the outcome of a preliminary disposition may shift from following the existing ‘maternal preference principle’ toward the ‘principle of continuity.’
When determining which parent to designate as the custodian of a minor child in judicial divorce proceedings, the court gives foremost consideration to the child's growth and welfare.
Therefore, to change custody of a child, one must objectively prove that one can provide a better level of welfare than the current custodian.
The 🔗Divorce Litigation Group of Daeryun Law Firm LLP, composed of attorneys experienced in handling divorce matters, actively assists clients, including by gathering evidence favorable to a change-of-custody action.
If you are considering a change of custody for the welfare of your child, you are welcome to request legal advice from the divorce attorneys at Daeryun Law Firm LLP at any time.
