The Korea Herald


Lack of Korean language skills not reason to deny child custody: Supreme Court

By Kan Hyeong-woo

Published : Oct. 17, 2021 - 14:36

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The Supreme Court on Sunday overturned a lower court’s ruling that a foreign woman who married a Korean man and later divorced could not have child custody due to a lack of Korean language communication skills.

The nation’s highest court said that it partially reversed and remanded the case to the Jeonju District Court after the lower court previously ruled in favor of the Korean husband and gave him parental rights over the Vietnamese wife in a divorce and child custody case.

According to the court, the two married in 2015 and had two children. They filed for divorce the next year and the wife took the older daughter, who was 2 years old at the time, with her and had taken care of her since.

During the divorce suit, the husband claimed that he should raise the daughter because his wife’s lack of Korean language skills and unstable housing situation were not appropriate for taking care of the child.

The husband had an apartment under his name, but he was making a living on loans without a job, 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 claims and ruled the husband should have child custody because the wife lacked the proper environment and ability for parenting due to her insufficient Korean language skills and unstable residence.

The lower courts explained that there were concerns about the daughter’s language skills development as well as her kindergarten and school life because the wife’s Vietnamese mother, who usually took care of her granddaughter when her daughter was at work, did not use Korean.

The Supreme Court, however, said it was difficult to find a justifiable reason to grant custody to the husband.

“It is an abstract and vague judgement that (the Korean husband) is more appropriate to raise the child based on (the Vietnamese wife’s) lack of Korean communication skills, so it is not right to assess that the foreign spouse should not raise the child,” the court said.

“As Korea has established public education and other educational conditions, the country guarantees enough opportunities for underage children to learn and practice the Korean language.”

It also added that the wife’s Korean language skills can keep improving as she continues to work in the country.

If child custody is to be handed over to the husband when the wife had raised the young child well since they separated, the court said that there should be clear reasons to believe that such a decision would be more helpful for the healthy growth and welfare of the underage child than the current situation.

Regarding the lower courts’ use of Korean proficiency as a major determinant for child custody, the Supreme Court pointed out that it can result in discrimination against the mother’s native country and it should be noted that understanding of a foreign parent’s native language and culture is an important factor in the formation of the child’s self-esteem.

“The ruling presented important principles and criteria for designating child custody in terms of respect for multicultural families and well-being of children,” a Supreme Court official said.