자의 권리로서 면접교섭권

Abstract

This paper examines the requisites of child removal by custodial parent after divorce and the ways and the requisites to protect noncustodial parent through alternation of parental authority and visitation in Korea. The removal of child may be obstacles to protect child’s best welfare or noncustodial parent’s right to visit. Korea Civil Code Art. 914 provides that the child shall reside at a place designated by a person of parental authority. In Korea, the person having parental authority to the child after divorce is not always custodial parent. Without the consent of the person having parental authority or the order of the court approving to relocate the child after hearing, not having parental authority custodial parent can not relocate the child from the original residence. This paper suggests to amend the Art. 914 of Korea Civil Code to admit the custodial parent’s removal of the child without consent of the person having parental authority or the order of the court. Because of the recognition of the modification on parental authority and visitation, the right of noncustodial parent being affected at the child’s removal can be cured. Korea Civil Code provides that the court should consider the best interest of the child in the procedures of the modification on parental authority and visitation. However, the Korea Civil Code does not enumerate the factors should be regarded to protect the child’s best interest in the procedures. So, this paper suggests following factors and standard to approve the removal the child by custodial parent, the modification of the parental authority and visitation. In the procedure of removal of child by custodial parent having not parental authority, the court should consider the element of the good faith and absence of malice of relocating parent. The most common good faith reasons for relocation may be employment or educational opportunities for either the custodial parent or the custodial parent’s new spouse or education opportunities of the child or moving to be near extended family to provide better environment, and so on. In the case of modification of parental authority, the court should change the person having parental authority only after three standards to be showed by the applicant; (1) that a substantial change in circum- stances has transpired after the removal of child; (2) that this change adversely affects the child’s welfare; and (3) that the child's best interests mandate a change of custody. In child visitation modification proceedings after child removal, if only there are the needs of continuing relationship between the noncustodial parent and the child, the right of noncustodial parent’s visitation affected at the removal of child by custodial parent should be protected by it’s modification. The adjustment of visitation may be the modification of the schedule of visitation or the compensation of the transportation costs, if needed, or alternative supplement of visitation like virtual visitation.