The Supreme Court on Sunday overturned a lower court ruling that a foreign woman who married a Korean and later divorced could not have custody of the child due to a lack of Korean communication skills.
The country’s highest court said it partially overturned the case and referred it back to Jeonju District Court after the lower court ruled in favor of the Korean husband and granted him parental rights over the Vietnamese wife in a divorce and custody case.
According to the court, the two married in 2015 and had two children. The next year they filed for divorce and the woman took the older daughter, who was then 2 years old, and has looked after her ever since.
During the divorce proceedings, the husband claimed that he should raise the daughter because his wife’s lack of knowledge of Korean and the unstable housing situation were unsuitable for caring for the child.
The husband had an apartment under his name, but he made a living on credit with no work, the court said while the wife had a monthly income of about 2 million won ($ 1,690).
The first and second trials had accepted the divorce petitions and decided that the husband should have custody of the child as the wife lacked the appropriate environment and ability to be a parent due to her inadequate Korean language skills and unstable residence.
The lower courts said there were concerns about the daughter’s language development as well as her kindergarten and school life because the wife’s Vietnamese mother, who normally looked after her granddaughter when her daughter was at work, did not speak Korean.
However, the Supreme Court said it was difficult to come up with a valid reason to give custody of the husband.
“It is an abstract and vague judgment that (the Korean husband) is more appropriate to raise the child due to the lack of Korean communication skills (the Vietnamese wife),” the court said.
“Since Korea has created public education and other educational conditions, the country guarantees underage children ample opportunities to learn and practice the Korean language.”
It added that the woman’s Korean language skills can continue to improve while she continues to work in the country.
If custody of the child is to be passed to the husband after the wife has raised the young child well since the separation, there should be clear reasons to believe that such a decision would be more helpful to the child’s healthy growth and well-being minor child than the current situation.
Regarding the lower courts’ use of Korean language skills as a major determinant of custody, the Supreme Court noted that this could lead to discrimination against the mother’s homeland, and it should be noted that understanding the mother tongue and culture of one foreign parent is an important factor in building the child’s self-esteem.
“The ruling set out important principles and criteria for assigning custody of children with a view to respecting multicultural families and the well-being of children,” said a Supreme Court official.
By Kan Hyeong-woo (email@example.com)