친권자의 공백 상황에 대처하기 위한 법정대리인의 결정

Abstract

Parents shall have the parental authority of their minor child, and the parental authority shall be jointly exercised by both parents during their marriage. If the parents fail to reach an agreement, the Family Court shall determine it upon the request of the parties. If parents intend to divorce, the custodian shall be determined by an agreement between the parents, and, if such agreement cannot or would not be made, the Family Court shall designate the custodian upon the request of the parties or ex officio: Provided, That if the agreement between the parents harms children s welfare, the Family Court shall order to correct it or ex officio decide the custodian[§909 (1), (4)]. Furthermore, they shall determine matters concerning fostering their children. And this matters include Decision on the custodian; Child support; and Visitation right and methods thereof(§837). Then, if one of the parents who was designated as the custodian upon the request of the parties or ex officio has been died, who shall take the responsibility to care for the child? Before §909-2 was newly inserted 2005, there was a hot debate on this issue the core of which is the status of the outliving parent. When one of the parents was designate as the custodian, what was left to the other? Some argued that the designated one’s death means ipso jure recovery of the legal status as custodian of the outliving parent, whereas others contended that in that situation there is no person of parental authority over a minor, therefore a guardian shall be appointed for said minor. The newly enacted articles, especially §909-2, §927-2, show solution to this debate. The key point of the new rule is that anyone who wants to be a new career of the child shall be tested by the Family Court in respect of the best interest of the child. They may be estimated to support the latter as the so-called ipso jure recovery is denied. But they in that they give the outliving parent a priority to recover his/her status.