Foreign parent can win child custody despite Korean language limitations: top court

By Lee Hae-rin

It is wrong to deprive a foreign parent of child custody in a divorce settlement based only on the parent's lack of fluency in Korean, the nation's top court said, Sunday.

The ruling states that language limitations cannot be a fair cause to take child custody rights away from a foreign parent who had been fully raising and economically supporting their child, and what matters more is which parent the child has lived with for longer and more stably.

The Supreme Court recently overturned a lower court decision that granted parental rights and child custody to a Korean man in a divorce suit with his wife of Vietnamese nationality.

The couple married in 2015 and had two children, but their relationship soured and they separated in August 2018, after which the daughter lived with the mother. After a year, they both filed for divorce, according to the court.

The woman sought custody of her daughter after the divorce, saying although she is not fluent in Korean, she has had a job since the separation and has been taking care of the girl with help from the child's grandmother.

The Korean husband claimed himself to be the proper custodian and said he would refuse to provide any child support payments if the wife were to be given custody. The woman, on the other hand, asserted that he doesn't have a job and thus lacks the financial capacity to take full responsibility for the child.

Both local and high courts gave the father parental rights and child custody, saying the mother did not have the Korean language ability necessary for childrearing. The courts also said the daughter's grandmother, who would take care of the girl while the mother was working, also doesn't speak Korean and this may negatively affect the child's education and language learning.

However, the Supreme Court ruled otherwise, saying the mother had fully raised the daughter during the separation and that she is as fit as her Korean husband as a parent when considering the nurturing environment, financial capability and emotional bonding she provides to her child.

Regarding the mother's low Korean language skills, it said in the ruling, “The state provides enough learning opportunities in its public and other education systems. A parent's Korean communication skills hardly affect the well-being and healthy development of a child.”

It said the lower courts should note that evaluating a parent's Korean language skills in child custody cases may have stemmed from or may result in discrimination. “It is also important for a child to understand the native language and culture of a foreign parent because that helps the child develop self-esteem,” the court said.