International Divorce — Child Custody & the Hague Convention: The Key Points
Korean courts determine custody based on "the best interests of the child" as the top priority, regardless of nationality
In international divorce cases, the legal relationship between parent and child follows the law of the country where the child actually resides if the parents and child have different nationalities, or the law of their shared nationality if they are the same
The Hague Convention is not a procedure for determining custody — it is used to decide whether a child who has been unlawfully removed should first be returned to the country where they were habitually residing
If parents end up living in different countries, the specific arrangements for visitation must be agreed upon in detail in advance
1. What Is Child Custody in an International Divorce? How Is It Determined?
Korean courts treat the "best interests of the child" as the foremost standard in custody decisions, regardless of nationality. The court looks comprehensively at who has been the primary caregiver, the emotional bond between parent and child, and whether the living situation is stable.
A parent's nationality is not a disadvantage. Even a foreign national parent, if they have been the primary caregiver, will be assessed under the same standard as a Korean parent.
2. What Legal Standard Governs the Parent-Child Relationship in an International Divorce?
The legal relationship between parent and child — including parental authority and custody — follows the law of the shared nationality if the parents and child have the same nationality, and the law of the country where the child actually resides (habitual residence) if their nationalities differ.
For example, if a child was born to a Korean father and a foreign national mother and raised in Korea, Korean law — as the law of the child's habitual residence — will often apply.
Private International Law Act, Article 72 (Legal Relationship Between Parent and Child): This provision states that the legal relationship between parent and child is governed by the law shared by both parents and the child if all hold the same nationality, and by the law of the child's habitual residence in all other cases.
3. What Is the Hague Convention? What Happens If a Child Is Taken to Another Country?
If one parent takes a child under the age of 16 out of the country where they habitually reside without the other parent's consent — or fails to return the child within the agreed period — this may constitute "international parental child abduction." Korea acceded to the Hague Convention on the Civil Aspects of International Child Abduction in December 2012 and enacted implementing legislation in 2013. Related cases are handled exclusively by the Seoul Family Court.
An important point: the Hague Convention is not a procedure for determining who the better parent is. It is a process for swiftly deciding only whether the child should be returned to the country where they were previously living — custody itself is then addressed separately by the courts in that country.
That said, return of the child may be refused in the following circumstances:
More than one year has passed since the removal and the child has already settled into the new environment
Return would expose the child to a grave risk of harm
The child is sufficiently mature and strongly objects to being returned
The other parent previously consented to or subsequently acquiesced in the removal
If there is a risk that your spouse may take your child abroad, you may register in advance your objection to the issuance of a passport for the child (the Joint Custodial Parent Passport Issuance Objection Registration system). As long as both parents remain joint custodians — meaning the divorce has not yet been finalized — this registration alone can prevent the other party from unilaterally obtaining a new passport for the child. If the child already holds a passport, additional protective measures such as a court order for pre-emptive delivery of the child should also be considered.
4. What If the Parents End Up Living in Different Countries? Arranging Visitation
Visitation is first and foremost the child's right, not just the parent's. When parents live in different countries, setting out the arrangements in specific detail from the outset is the best way to prevent future disputes. Key items to address include:
The days and times for video calls
Scheduled in-person visitation during school holidays and vacations
How travel costs such as airfare will be shared
Spelling these out clearly in the divorce agreement or mediation record will help avoid disputes later over conflicting recollections of what was agreed.
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Sugar Recipe — A Word from Attorney Sugar
Nationality is not an obstacle to obtaining custody, and even if your child is already in another country, there are ways to bring them back. That said, to avoid reaching a point where reversal becomes difficult, we strongly recommend planning from the very start of divorce proceedings — thinking through where your child is now and where they may be going forward.
With the K-Foreigner Legal Center by your side, your child's emotional wellbeing will not be overlooked in the midst of divorce proceedings. Work with attorneys who prioritize minimizing conflict, put your child's rights first, and keep an eye on your family's future.
A team of attorneys who communicate in your language and specialize in divorce cases will take responsibility for your international divorce from start to finish. A representation service that allows proceedings to move forward without direct contact with your spouse, and cross-border matters handled through AGA, a global network of leading law firms — all available through the K-Foreigner Legal Center in one place.
FAQ. Frequently Asked Questions
Q1. What should I do if my spouse secretly leaves the country with my child? A. If the child has already been taken, and the child is under 16 and the destination country is a signatory to the Hague Convention, you can file a return application through that country's Central Authority. If the child has not yet been taken, it is safer to first explore preventive measures such as registering an objection to passport issuance for the child, or seeking a court order for pre-emptive delivery of the child.
Q2. If I file a Hague Convention return application, does that also settle custody? A. No. A return application only determines whether the child should be returned to the country where they were previously living. Custody itself is addressed separately by the courts in that country afterward.
Q3. If the parents live in different countries, do I have to give up on visitation? A. Not at all. Visitation can be arranged through video calls, concentrated in-person visits during school holidays, and similar arrangements. However, if the terms are not spelled out in specific detail from the start, disputes are likely to recur — so it is best to set out the conditions clearly, down to the particulars, from the very beginning.
