The determination of custody and child-rearing responsibilities following divorce constitutes one of the most complex and sensitive issues in divorce proceedings, particularly in multicultural families or cases involving a foreign spouse. Unlike asset division, this matter directly concerns the welfare of the child; therefore, the Korean Court consistently places foremost emphasis on the principle of “the best interests of the child” (아동의 최선의 이익). Korean law has established a clear regulatory framework governing custody (양육권) and guardianship (친권), enabling the Court to exercise flexibility in accordance with the actual circumstances. This article will analyze the current legal system, the methods of determining custody and guardianship, and provide strategic considerations for the disadvantaged party or foreign nationals involved in divorce proceedings in Korea.

I. Legal basis and general principles

1. Legal basis

• Article 837 of the Korean Civil Act: Provides for custody and guardianship after divorce.
• Article 909 of the Civil Act: Establishes the child’s legal representative.
• Family Court Regulations: Provide guidance on the performance of child support obligations.

2. General principles

• The best interests of the child constitute the paramount principle.
• The Court may:

• Grant custody and guardianship to one or both parents.
• Determine the amount and method of child support, even in the absence of an agreement between the parties.

II. Rights and obligations are not absolutely dependent on the gender, income, or nationality of the parents.

Korean law classifies post-divorce parental responsibilities toward children into three principal categories, with the aim of ensuring that the child continues to receive adequate material and emotional care notwithstanding the parents’ separation. Each category reflects a distinct legal dimension, yet they remain closely interrelated and inseparable in the course of child-rearing after divorce.

1. Custody (양육권) refers to the right to directly care for, educate, and reside with the child following divorce. The holder of this right assumes primary responsibility for the child’s daily living, education, and emotional well-being.
2. Guardianship (친권) refers to the legal authority to represent the child in matters such as property management, determination of residence, registration of personal status, nationality, and other related civil affairs. This authority may be granted separately from, or concurrently with, custody.
3. Obligation of child support (양육비) refers to the financial duty of the parent who does not have direct custody, aimed at ensuring that the child has adequate conditions for normal development. Such support covers expenses for housing, medical care, education, and daily living.

III. Factors affecting the determination and allocation of rights

The Family Court exercises flexibility in consideration of various practical factors:

• Age and needs of the child:

• Children under seven are generally placed with the mother, though not absolutely.
• Children over thirteen may be consulted regarding their preference.

• Ability to provide care: Economic capacity, availability of time for childcare, living arrangements, and support systems (such as grandparents or domestic helpers).
• Relationship with the child: Determination of which parent has been more directly involved in bonding with and caring for the child during the marriage.
• Conduct of the parents: Incidents of violence, abandonment, adultery, or deliberate obstruction of the parent–child relationship will be considered adversely by the Court.
• Ability to provide child support: The Court takes into account not only the ability to pay but also the willingness and transparency in asset disclosure.
  

IV. Determination and method of executing child support obligations

1. Amount of child support payment

The amount of child support is not rigidly prescribed by law but is determined either by agreement between the parties or by Court ruling, based on three principal factors:

• The net monthly income of the obligor (after deduction of taxes, insurance, etc.);
• The number of children entitled to support;
• The child’s living and educational needs, as well as the standard of living prior to divorce.

In practice, Family Courts generally set child support at between 15% and 25% of the obligor’s net monthly income for each child. This percentage may be increased where the child requires special medical care, attends an international school, or has other particular needs.

2. Method of providing child Support

As a general rule, child support is paid monthly by bank transfer into the account of the parent who has direct custody of the child. The parties may:

• Voluntarily execute a written agreement, which may be notarized or submitted together with the divorce petition.
• Register the agreement with the Court to ensure enforceability (in cases of consensual divorce).
• Request the Court to issue a determination on the amount of child support (in cases of contested divorce or where no agreement is reached).

In addition, where there is a risk of irregular payment, the Court may require the obligor to provide financial security or to commit to long-term payments according to a specified schedule.

3. Enforcement in Case of Non-Payment

In the event that the obligor deliberately evades or fails to fulfill the child support obligation:

• The Court may issue an enforcement order through measures such as:
  • Attachment of assets, freezing of bank accounts, or garnishment of wages through the employer.
  • Administrative sanctions or criminal prosecution pursuant to the Law on the Protection of the Rights of minors.
  • Prohibition of exit from the country for foreign nationals or Korean citizens who engage in serious willful non-compliance.
    Mandatory registration on the list of individuals failing to fulfill child support obligations with public authorities, adversely affecting credit rating and social reputation.

4. Provisional child support advance provided by the Government

In the event that the obligor fails to make timely payments or absconds, the custodial parent may request the Government of the Republic of Korea to provide an advance child support allowance through the Child Support Agency. Thereafter, the State shall recover the amount from the obligor by means of legal enforcement measures.

Eligibility criteria include:

• Existence of a valid court judgment or agreement determining the amount of child support.
• Payment is overdue for at least 01 month.
• The applicant is the custodial parent of a child under the age of 19 and falls within the category of low-income households or lacks the means of self-support.

V. Application procedure and legal strategy

1. Mutual agreement

In the event that the parties are able to reach a consensus, they may enter into an agreement regarding:

• Which party shall have direct custody of the children following divorce;
• Which party shall retain legal guardianship;
• The amount of periodic child support payments.

Such agreement must be reduced to writing, duly signed by both parties, and submitted together with the divorce petition to the Family Court. Upon approval by the Court, the agreement shall acquire the same legal effect as a judgment, thereby serving as a basis for compulsory enforcement in the event of non-compliance by either party.

2. Application through the Court

If the parties fail to reach an agreement regarding child custody, legal guardianship, or the amount of child support, either party shall have the right to file a petition with the Court for determination.

The Court shall render its decision on the basis of the case file, evidence, and the actual circumstances, including:

• Designating which party shall have custody of children;
• Granting legal guardianship to one party or to both parties jointly;
• Determining the specific amount of child support and the method of payment.

The Court may appoint an independent third party, such as a court investigator or a child welfare officer, to visit the residence in order to verify the living conditions, assess the relationship between the child and the parents, or interview the child if the child has reached a sufficient level of maturity (generally over the age of thirteen).

Furthermore, upon the finalization of the divorce, either party shall retain the right to petition for a modification of child custody or child support in the event of a substantial change in circumstances:

• The remarriage of one party;
• Incapacity to work or bankruptcy;
• A change in the child’s residence or the emergence of special needs of the child.

3. Safeguarding of rights and interests

In order to safeguard lawful rights and prevent potential risks, the party concerned may undertake the following measures:

• Request for an order prohibiting departure from the country or removal of the child abroad in cases where there is reasonable suspicion that the other party intends to take the child out of the Republic of Korea unlawfully or without mutual consent.
• Request for the freezing of the obligor assets in order to prevent the dissipation or concealment of property during the pendency of proceedings or the enforcement of judgment.
• Registration for State-sponsored support: In cases where the custodial parent belongs to a single-parent household or a low-income household, he or she may file an application with the Single-Parent Family Support Center to receive provisional financial assistance from the State as well as free legal counseling services.

VI. Conclusion

Child custody, guardianship, and the obligation of child support are not merely legal issues but also determinants shaping the future of the child. Parents—whether cohabiting or divorced—bear both legal and moral responsibilities toward their children.

To safeguard lawful rights and interests after divorce in the Republic of Korea, it is essential to:

• Acquire a clear understanding of the applicable legal provisions;
• Collect sufficient evidence prior to initiating proceedings;
• Select an appropriate course of action, whether by mutual agreement or litigation;
• Always place the best interests of the child above personal interests.
  

Thorough preparation and the assistance of legal counsel experienced in Korean family law are critical factors in achieving a fair and humane outcome following divorce.

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