Vietnamese Wife Who Lost Custody for Not Speaking Korean... Supreme Court Orders "Retrial"

Supreme Court: Caregivers Should Not Be Designated Based on "Korean Language Communication Ability"

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[Asia Economy Reporter Kim Daehyun] A Vietnamese wife who lost custody during a divorce lawsuit with her Korean husband can now live with her child. This follows the ruling by South Korea's Supreme Court that the first and second trial decisions designating the custodian based on "Korean language communication ability" were incorrect.

On the 17th, the Supreme Court's 2nd Division (Presiding Justice Min Yusook) announced that it overturned the previous ruling recognizing custody to the Korean husband, Mr. A, in the appeal trial of the divorce and custodian designation lawsuit filed by Mr. A against his Vietnamese wife, Ms. B, and remanded the case to the Jeonju District Court.

Previously, Ms. B married Mr. A in September 2015 and gave birth to two children in Korea. However, due to conflicts with her husband, she left the house in August 2018 with their eldest daughter, Ms. C (then 2 years old). The couple, unable to reconcile their differences, proceeded with divorce procedures a year later.

The first and second trials designated Mr. A as the legal guardian and custodian of Ms. C. Although they acknowledged that Ms. B, who has been raising Ms. C until now, had a closer bond with her daughter than Mr. A, they focused more on Ms. B's lack of "Korean language communication ability."

However, the Supreme Court stated, "It is difficult to consider the Korean language communication ability of a foreign parent as having significant meaning for the healthy growth and welfare of the child" and ordered the case to be re-examined and judged.

The court emphasized, "The education system in the Republic of Korea sufficiently guarantees opportunities for children to acquire and practice Korean" and "Considering Korean language communication ability in custodian designation may inadvertently lead to discrimination based on country of origin, and understanding the foreign parent's native language and culture is also an important factor in the child's self-esteem formation".

Additionally, "According to the records, Mr. A owns a house under his name but appears not to be engaged in significant economic activities. (In contrast) Ms. B has been working independently since the separation, earning a fixed monthly income, and has secured housing, albeit rented", and "The lower courts misunderstood the legal principles regarding the designation of legal guardians and custodians and failed to conduct necessary investigations, which affected the judgment", the court added.

Regarding this ruling, a Supreme Court official stated, "It specifically declared how Korean language communication ability should be considered in factors for custodian designation and in assessing the suitability of foreign spouses as caregivers," adding, "It presented important principles and criteria for family courts' custodian designation in terms of respecting multicultural families and child welfare."