When one parent takes a child to Korea without the other parent’s consent, the parent remaining overseas may feel an overwhelming sense of helplessness due to the physical distance, time difference, and unfamiliar legal system.

However, this situation is not merely a private marital dispute. Depending on the circumstances, the unilateral removal or retention of a child may constitute an international child abduction case.

In this context, “abduction” may include the unilateral removal or retention of a child by one parent, guardian, or another close family member in violation of the custody rights of another person.

Korea is a party to the Hague Convention on the Civil Aspects of International Child Abduction. Accordingly, an overseas parent may seek the child’s prompt return to the country of habitual residence through the relevant Central Authorities and Korean legal proceedings, even without personally entering Korea.

Because delay can complicate the case, particularly if the child becomes settled in Korea, it is important to act quickly and preserve objective evidence regarding the child’s prior residence and the applicant parent’s custody rights.

📌 목차 (Table of Contents)

1. Requirements for a Return Application under the Hague Convention

The Hague Child Abduction Convention is intended to secure the prompt return of children who have been wrongfully removed or retained and to protect rights of custody and access.

To obtain a return order, several core requirements must generally be established.

① The Child Must Be Under 16

The Convention applies only to children under the age of 16.

If the child reaches the age of 16 while the proceedings are pending, the Convention ceases to apply.

② The Child Must Have Had a Habitual Residence in Another Contracting State

A central issue is the child’s habitual residence immediately before the removal or retention.

Habitual residence generally refers to the country that constituted the child’s actual center of life.

Relevant factors may include:

  • how long the child lived in that country;
  • school or kindergarten attendance;
  • medical records;
  • friendships and community ties;
  • the family’s living arrangements; and
  • the parents’ intentions regarding the child’s residence.

③ The Removal or Retention Must Have Breached Custody Rights

The overseas parent must generally demonstrate that, at the time of the child’s removal or retention, he or she held valid custody rights under the law of the child’s habitual residence and was actually exercising those rights, or would have exercised them but for the removal or retention.

Joint custody may also constitute protected custody rights for purposes of the Hague Convention.

An application to the Ministry of Justice or another Central Authority initiates the administrative assistance process, but the ultimate determination regarding the existence of custody rights and whether a return order should be issued is made by the competent family court.

If substantial time passes after the child arrives in Korea, issues concerning habitual residence, settlement in the new environment, and statutory defenses to return may become increasingly complex.

Accordingly, objective evidence concerning the child’s original living environment and the applicant parent’s actual exercise of custody rights should be collected as quickly as possible.

④ The Convention Must Be in Force Between the Relevant Countries

The Hague Convention must be in force between Korea and the child’s country of habitual residence.

Where this requirement is satisfied, the overseas parent may seek administrative assistance through the Korean Central Authority or the Central Authority of the other relevant Contracting State.

The status of the Convention between Korea and other countries can be checked through the Hague Conference on Private International Law.

2. Hague Convention Return Proceedings in Korea

An international child return matter typically begins with an application for administrative assistance through the Central Authority in the child’s country of habitual residence or through Korea’s Ministry of Justice.

The Korean Central Authority may assist with matters such as locating the child, communicating with the other parent, and encouraging voluntary return.

If the other parent refuses to return the child voluntarily, judicial proceedings may become necessary.

Under Korean law, Hague Convention child-return proceedings are generally brought before the Seoul Family Court, which has specialized jurisdiction over these matters.

For an overseas parent, one of the most important practical questions is whether personal travel to Korea is required.

In many cases, a Korean attorney may be appointed through an appropriately authenticated power of attorney, and substantial portions of the proceedings can be handled while the parent remains abroad.

Through Korean counsel, the applicant may submit briefs and evidence, participate in court procedures, and present arguments concerning custody rights, habitual residence, and the circumstances of the child’s removal or retention.

Depending on the case and the court’s procedures, remote participation or video proceedings may also be available.

3. Interim Measures to Protect the Child During the Proceedings

Because Hague proceedings may continue for several months, it may be necessary to consider measures designed to prevent the child from being moved again or concealed during the litigation.

Where there is a genuine risk that the child may be taken from Korea to a third country, appropriate protective measures should be considered at the outset of the case.

It may also be important to preserve the relationship between the child and the overseas parent during the proceedings.

Depending on the circumstances, the parent may seek interim contact arrangements, including scheduled video calls or in-person visitation.

Where a party refuses to comply with a court order concerning contact or delivery of the child, Korean family procedure provides various enforcement mechanisms depending on the type of order and the circumstances.

The precise relief available should be determined on a case-by-case basis, with particular attention to the child’s welfare and the need to avoid unnecessary emotional harm.

4. Enforcement After a Return Order

Even after a court issues a return order, the other parent may refuse to cooperate voluntarily.

In such circumstances, additional enforcement procedures may be required.

Depending on the type of court order and the procedural posture, the applicant may seek indirect enforcement measures designed to encourage compliance.

If voluntary compliance still does not occur, further enforcement procedures may become necessary to secure the child’s actual return.

Because enforcement involving a child is fundamentally different from ordinary civil enforcement, Korean courts and enforcement authorities place particular importance on minimizing emotional and psychological harm to the child.

The process may therefore involve careful coordination among legal representatives, court personnel, and, where appropriate, child-welfare or other professionals.

Once physical custody is lawfully transferred, practical matters such as the child’s passport, travel documentation, departure arrangements, and return to the country of habitual residence must also be coordinated promptly.

5. Criminal Proceedings and an Integrated Response Strategy

In addition to Hague return proceedings, criminal-law issues may arise depending on the specific facts of the case.

Under Korean law, even a parent may potentially face criminal liability where the parent unlawfully removes a child from the custody or protection of another person in circumstances satisfying the elements of the relevant criminal offense.

However, criminal liability does not arise automatically simply because one parent has taken the child.

Whether conduct constitutes an offense such as kidnapping or abduction of a minor depends heavily on the specific custody arrangements, the manner in which the child was removed or retained, the child’s circumstances, and applicable Korean case law.

Accordingly, criminal proceedings should be considered carefully as part of the overall case strategy rather than treated as an automatic component of every Hague Convention matter.

Where the facts justify both family-law and criminal remedies, a coordinated strategy may provide additional procedural leverage. At the same time, the potential impact of criminal proceedings on the child and on the prospects for voluntary resolution should also be carefully evaluated.

Protecting Custody Rights Requires Prompt Action

When a spouse unilaterally brings a child to Korea, the overseas parent should not assume that physical distance prevents an effective legal response.

International child abduction cases are highly time-sensitive. Under the Hague Convention, the passage of one year from the wrongful removal or retention can become particularly important because the respondent may argue that the child has become settled in the new environment.

For this reason, early action is critical.

An overseas parent may be able to pursue Central Authority assistance, Hague return proceedings, interim protective measures, and, where appropriate, additional civil or criminal remedies through Korean counsel without personally relocating to Korea.

The central objective should be to preserve evidence, protect the child’s welfare, and promptly restore the lawful custody framework that existed before the wrongful removal or retention.