Change of Custody | A High Court Judgment Holding That, When Designating a Temporary Custodian upon Divorce, the Current Custodian Should Maintain Custody

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.

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.

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.