By Michael Breen
The refusal of a court this week to return two children to their mother's care after their father had handed them to his previous wife to be taken care of has shocked the international community.
In this case, there appears to be no easy solution. But the decision by the ironically named Seoul Family Court is not the best one. In fact, it is a good example of how rulings, whether based in law or not, are so often made without thoughtful consideration of the circumstances and how decisions, whether made by the courts or bureaucracy, so often reward bad behavior.
The couple married in the summer of 2003 and had two daughters over the next two years. In a bizarre move, the husband gave the children to his ex-wife to raise. It's unclear whether the wife at first agreed or whether she knew the ``nanny'' was the man's ex-wife.
Later, a few days after his wife gave birth for the second time, the man filed for divorce and moved back in with his first wife and the children.
The court was considering a request by the mother for her children back, which was refused, but she could visit them once a week. The husband is appealing against that part, to make sure the mother never sees her children again.
Korean law favors the father in custody cases. Historically, the reason's been partly practical in that it usually obviates the need for child support, and partly ideological ― blood lineage through the father is considered more important for the long-term emotional well-being of the children that their short-term nurturing needs or the rights of their mothers.
But anyone with a humanitarian bone in their body can see the flaws in this ruling. If a better solution contradicts the law, then the law should be changed.
In trying to make a judgment, it is important not to be distracted by irrelevancies. The first one to recognize and ignore is that one of the three main adult actors in this tragedy is a foreigner from a country with a lower GNP than Korea.
Yes, the unhappy mother is Vietnamese. If the court ignored this, and there is a hefty body of commentary out there in cyberspace by non-Koreans assuming it didn't and ruled against her because she was a mere foreigner, the press didn't. The idea that people come from somewhere first, and are human second, is so deeply ingrained in Korean society that it seems nigh impossible for people to appreciate that it just doesn't matter. But that's what we must do.
The second is the age gap. The man is in his 50s and the mother of his children was 26 when they married. It's very easy for the dogs of marital correctness to gather around this tree and bark their heads off. But if we are to make a reasonable judgment about the children, it must be dismissed as a distraction.
It's also irrelevant whether the man met his second wife through an agency, whether she saw him as a ticket out of poverty, whether they met in Korea and fell in love, whatever. None of it matters.
What does matter, though, is the course of the man's relationship with his first wife because it touches on his motivation for giving her the other woman's babies. Was he exploiting the Vietnamese woman as a surrogate all along, or did he have a better reason?
The fact of the matter is that, whether she consented or not, the mother is still the legal mother and the nanny has no rights, as painful as this may be for her. Furthermore, a child is better off with her mother unless she is mentally unfit or otherwise not capable of providing good care.
In citing the children's ``lack of awareness'' of their mother as its main reason for rejecting her claim, the court rewarded the husband's bad behavior. And in an ironic twist, the court then granted her visitation rights with the children one day a week. It could have allowed this as a strategy for the children to get to know their mother pending full custody.
The father's appeal is an opportunity for the court to redeem itself. It should not only reject it but also provide police security for the woman to ensure that she sees the children when she wishes to and also that the husband compensate her for the time of work. Furthermore, if the husband and nanny are found by social workers to be lying to the children about who the Vietnamese woman is or if they otherwise violate the court ruling, they should immediately lose custody.
Michael Breen is chairman of Insight Communications Consultants Exclusive Partner of FD International. He can be reached at mike.breen@insightcomms
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