자녀보호의 관점에서 본 양육권 문제 ―영국과 미국의 법이 주는 시사점―

Abstract

In a parent and child relationship the physical custody of a child is main part of the parental responsibility and the most important and intimate matter concerning the welfare of the child. The physical custody of a child is included in the parental responsibility/right and held by both parents when the parents are married and the family is intact, but in case of the parents' divorce or when the family break apart or when someone who is not actually the parent takes care of the child the child custody problem becomes complicated. In these circumstances the content and the limits of the custody of the child and the parental responsibility/right is separated. The right of the custody is separated from the parental responsibility and the custodian of the child and the arrangements about the care and support of the child must be determined. English and American law have considered child's welfare by case law since 19th century and have established laws and solutions for child custody and child protection problem based on the child's welfare from 1920's. Through many cases, law reforms and studies for decades, English and American law have established several principles and statutes based on the ‘child's best interest principle’ about the child custody problems that can occur in diverse situations. So in this paper the law, cases and system of English and American law are studied to find implications for the Korean law and family court concerning child custody. These legal systems recognize parental responsibility as parents' duties which last as long as the child reaches majority irrelevant of the parents' divorce or family breakdown. As they find it that the joint parental responsibility of the parents is principle, they emphasize the importance of child custody when the parents separate or the child live with someone besides the parents. The matter of child custody should all be arranged under the ‘the best interest of the child’ principle, and they make it sure that the family court make an order for the arrangements and change of the child custody. The statutes and the family courts of these countries also determine the primary/actual physical custodian of the child and the rights and duties exclusive to the custodian explicitly so that dispute between parents or the custodian can be avoided or at least be minimized. They also recognize and guard the custody of non-parents or in loco parentis who have formed stable family with the child, for ‘the best interest of the child’. By these rules English and American legal systems protect the child and respect 'the best interest of the child' in the case of divorce, child born out of wedlock, step-parent's custody, death of custodian, child under court's guard or foster care, annulment of adoption etc.