Although the visitation rights of non-custodial parent has been recognized in
many countries with common law and civil law systems, the Republic of Korea
introduced it through the amendment of its Civil Code in 1990. In addition,
because The Korean Civil Code(hereinafter ‘The Civil Code’) has only one
article regarding to the visitation rights and there are few case law with respect
to it, there have been debates about its legal nature and how to exercise it.
This article tries to resolve the above issues mainly based on precedent
studies and lower court cases.
First, how should we understand the legal nature of the visitation rights? The
way to exercise, the restriction and exclusion in its exercise, and remedy for the
obstruction of its exercise depend on how to understand the legal nature of the
visitation rights. Although there had been arguments about this issue, it was
concluded through the amendment of The Civil Code in 2007. In other words,
the visitation rights became the right of parents and, at the same time, the right
of their child or children in the amendment by articulating “a parent who does
not bring up directly his or her child or children shall have the visitation
rights.” in paragraph 1, article 837-2.
Second, although The Civil Code does not have provision about the scope
and way to exercise visitation rights, it can be construed based on the legislative intent of paragraph 2, article 837-2 that those issues would be basically decided
by the agreement/negotiation between the custodial parent and non-custodial
parent and the Family Court would decide those issues by the request of parties
only when the parties did or could not reach an agreement/negotiation.
Third, The Civil Code stipulates the visitation rights in the case of divorce by
agreement and applies mutatis mutandis this to the case of judicial
divorce(Article 843 & 837-2). Moreover, the visitation rights apply mutatis
mutandis to the case of the nullity of a marriage or affiliation by ma - subpar.
3, paragraph 1, article 2 of the Family Litigation Act. Furthermore, the visitation
rights should be applied to the case of annulment of de facto marriage and
judicial separation.
Fourth, because the visitation rights ultimately results in the welfare of a
child or children, the exercise of the right should be restricted or excluded when
the exercise could obstruct sound growth of the child or children.