이혼시 친권자 공동지정과 친권 일부 제한 - 친권자 공동지정에 따른 공시방법에 관한 실무상 검토 -

Abstract

Changes in social and economic environments have changed the values of family and increased the divorce rate. With which, the protection of underage children has been an issue of growing importance. During the divorce action, some parents want to relinquish their responsibility for child support, but most of them wrangle over child custody. So far, overwhelming majority of trials has given one of the parents the Parental Authority or Custody. The other parent can just have the visitation right without exercising the Parental Authority and Custody as well. Though it is inevitable that one of the parents is appointed as the Fosterer, it could cause some problems if the Parental Authority is given only to the one appointed as the Fosterer. First, the noncustodial parent without the Parental Authority may not be the legal guardian of the child during negotiation for the visitation right. Also, the child may not be protected properly when the Fosterer has a problem performing the role as the person with Parental Authority, e.g., disappearance, death, etc. Second, the noncustodial parent feels deprivation after divorce and thus becomes indifferent to paying child support, which will make he or she estranged from his or her child and affect child support negatively. In case the Parental Authority is given to both of the divorced parents, it may be inconvenient for one parent as the Fosterer to foster the child. This is the main reason why the family judiciary who try divorce cases or the one appointed as the fosterer has been passive about joint custody. Also, it may be cumbersome to make decisions about financial transactions, passport application, surgery or school transfers in case the Parental Authority is given to both of them. However, such reasons are not for the welfare of children but are only for the convenience of parents. The Parental Authority can be restricted by the Loss of Parental Authority, the Temporary Suspension of Parental Authority, and Partial Restriction of Parental Authority, and Loss of Rights to Represent and Manage Property. In regard to this, Article 925-2 of the Civil Act stipulates that the weakest means shall be adopted in principle in order that the ruling shall be based on proportionality. For a divorced parent who failed to have the Parental Authority, the denial of the Parental Authority virtually means that he or she is sentenced to the Loss or Suspension of the Parental Authority. As compared with cases of being sentenced to the Loss of Parental Authority, it is overly harsh to deny the Parental Authority for the reason that he or she failed to be appointed as the Fosterer. It is advisable to give Parental Authority to both of the parents except in the case where there is reason to sentence to the Loss of Parental Authority, e.g., cases where a noncustodial parent does not pay child support faithfully or abuses his or her child or does an equivalent deed. Although both parents are given Parental Authority, the Fosterer’s inconvenience will be obviated or mitigated by the Partial Restriction of a noncustodial part’s Parental Authority. The Partial Restriction of Parental Authority is recorded on the Family Relation Register and is publicly notified in the basic certificate of an underage child, and thus transactions can be safe. However, the Parental Authority can be given only to one of divorced parents in cases where a noncustodial parent does not perform parental obligation properly or does against the child’s welfare. Another way is depriving him or her of his or her Parental Authority. There is the need to give Parental Authority to both of the divorced parents regardless of who is appointed as the Fosterer. It enables them to share parental authority in proportion to responsibility and accountability and to promote the welfare of underage children. Various efforts have been made to arbitrate in divorce disputes, and in addition to them, this study offers a solution to wasteful disputes by suggesting a proper distribution of parental authority and responsibility for child support.