Here are two general categories of Custody, Physical and Legal Custody.
The parent granted physical custody is the parent that the child shall live with. The parent is granted legal custody is the one that makes all of the major decisions on behalf of the child. Parents that are granted Joint legal custody by the Court are expected to agree on the major decisions concerning the child and make these decisions together. This is a shared responsibility regardless of which parent the child lives with. A parent that has legal custody over a minor gives that parent the right to make all decisions concerning the upbringing of that child. If parent's are awarded joint legal custody, this means that both parents have an equal right to make decisions concerning the child. Generally speaking a Court will not award joint legal custody without the prior agreement of the parents.
The Court will also most likely not award joint legal custody if there are Orders of Protection in place. If you share joint legal custody, then you will have to take into consideration that parent's opinion concerning upbringing of the child and get permission for any major decisions made on behalf of the child.
Factors will have a role in determining child custody in South Korea
- The best interests of the child
- Which parent is more likely to encourage frequent visits with the other parent
- Child’s wishes, which are only considered if the child is of a certain age and maturity level (generally over age 12)
- History of domestic violence
- History of drug use
When determining what is in the best interest of a child during your divorce, Korean custody law allows a court a large degree of discretion, and a judge can consider many different factors. Some of those factors include:
- A child’s age and desires
- Parental stability
- Parental criminal history
- Ability of the parent to care for the child
A court will use these factors and more to decide where your children should spend most of their time.
What is Joint Physical Custody?
A Court, in most cases, will not grant joint physical custody without prior agreement of the parents. If joint physical custody is agreed upon then you will have equal parenting time with your child. Joint physical custody agreements can also be complicated by the parents living far apart. This is because the child may be going to school in a distance that is too far away for the other parent to take him or her. The parent that spends the most time with the child shall have physical custody and the other parent shall have Visitation (or “Parenting Time”). A decision regarding joint custody is best remedied by both parents signing an agreement in Court that carefully details the terms of joint physical custody.
What is legal custody?
Having legal Custody means that you are the one responsible for making all of the major educational, medical and religious decisions involving your child.
The general day to day decisions are reserved for who has the child at the time. When you have legal custody the law doesn’t even require you to consult with the other parent regarding these decisions but it is a good idea to do so because good communication between the parents is in the best interest of the child.
A legal custody order can also have the provision that you must consult with the other parent prior to making any major decisions. Legal custody does not mean you can control the day to day decisions of the other parent when they are with the child. If you believe the no custodial parent’s day to day decisions involving the child are not in the child’s best interest then you may need to go to court seeking modification of the visitation order. If you believe abuse or neglect is occurring then you should contact Child Protective Services.
What legal physical custody?
Legal physical custody is determined by the Court or by agreement in Court between the parents. The custodial parent will be the one that has the child the majority of the time and makes decisions for the child the majority of time.
Do I need to file for Custody in Court?
The decision to open a case in Family Court is one that should really be thought about. Working out issues of Custody and or Visitation without court intervention is always a good idea if possible. The Court process can be very uncertain and having a “Stranger in a Black Robe” deciding the fate of your child can be scary for most parents. The Judge will look at many things to make the determination of who will get Custody of the child. The decision should not be based on who has more money or the sex of the mother or father. The Judge will look at what he or she believes, after reviewing or hearing all of the relevant facts, what is in the Best Interests of the child in determining which party will get custody. The Judge may Order a Court Ordered Investigation where a Caseworker will visit the homes of both parents and write a report for the Judge. This report describes what the homes of the parents were like and records responses to questions answered by the parents and perhaps other individuals that may live in the home. If there are possible mental health issues involved the Court might order a forensic evaluation. Here both parties will be evaluated by a forensic psychologist, and this psychologist will provide a report to the Court as well. Finally, in a case where the child is able to express herself, the Court may appoint a Law Guardian to represent the child in a Custody proceeding.
The law guardian’s job is to tell the Court what the child wants. Older children’s opinions in Custody cases are taken very seriously.Thus, with so many variables, the outcome of a Custody case may be hard to predict. Even though you think you may love your child more than the other parent this does not mean you are going to get Custody. You should, however, file for Custody when you and the other parent cannot agree on what’s best for the child, or when you believe your children are being harmed or in danger of being harmed by the other parent.
Finally, a custody or visitation petition can be filed when you want to find out what your rights are or at least get an official document from the Court establishing your rights. What happens when the other parent does not pay attention to a court order?You can bring a legal proceeding for violation of a Court Order and that violating parent could potentially be found in contempt of Court. For example in a custody matter, the violating parent could potentially be incarcerated for violation of a court order. Repeated violations of Court Orders by a custodial parent could lead to a temporary or permanent change of custody.