Hello. I am Attorney Shin Jun-seon from Cheongchul Law Firm.

"As a parent, why is it a problem to take my child with me?" This is the most common question asked by parents who are on the brink of divorce or separation. However, there are quite a few actual cases where this question leads to criminal complaints.

To put it simply, being a parent does not mean that you can take your child at any time. If a parent takes a child, who is being peacefully protected and raised by the other spouse, without that spouse's consent, it can constitute the crime of child abduction and enticement under the criminal law. In this article, we will look at the cases where taking a child during the divorce or separation process can lead to criminal charges, the legal risks involved, and practical points to consider.

[Question] If I've decided to divorce, can I take my child with me?

[Answer]

1. Even as a parent, taking a child 'recklessly' can be a crime

A. Criminal law on child abduction and enticement

Article 287 of the Criminal Law states, "Anyone who abducts or entices a minor shall be punished by imprisonment for not more than 10 years." Here, 'abduction' means the act of using violence, threats, or illegal physical force to remove the victim against their will from a free living relationship or protective relationship to transfer them into the actual control of oneself or a third party, and 'enticement' means the act of using deception or seduction to lure a minor away from a free living relationship or protective relationship into actual control of oneself or a third party.

B. Core violation of the protective rights

The protected interests of child abduction and enticement crimes include not only the freedom of minors but also the guardians' rights to custody. Therefore, if a minor has been transferred to another's actual control by infringing upon the custody rights of the guardian who was protecting and supervising the minor, it constitutes child abduction and enticement.

C. Not an exception for custodians or parents

The Supreme Court ruled that, even if a person is in charge of protecting and supervising a minor, they can still constitute a perpetrator of child abduction and enticement if they infringe upon the custody and care rights of another guardian or abuse their own rights in a manner that harms the minor's interests (Supreme Court Decision 2008. 1. 31. 2007Do8011).

Thus, if parents are divorced or separated, and one parent is peacefully protecting and raising the minor child, but the other parent uses violence, threats, or illegal physical power, or deception or seduction to disrupt that care and take the child into their own or a third party's actual control, such actions would generally constitute a crime of abduction or enticement against the minor unless there are special circumstances (Supreme Court Decision 2021. 9. 9. 2019Do16421).

2. Cases where even parents have been recognized for child abduction

A. Taking a child without the other parent's consent immediately after separation

This is when one spouse takes the child without any agreement or consent while the child is being peacefully protected and raised by the other spouse after the separation begins. In this case, the infringement of custody rights is very likely to be recognized.

In a real case (Daegu District Court Western Branch Decision 2019. 8. 30. 2018GoD3530), during a divorce lawsuit, one spouse took the child being cared for by the other parent forcefully against their will during kindergarten drop-off while preventing the other spouse from acting, leading to the recognition of the crime of child abduction.

B. Failing to return a child during visitation

This occurs when a parent takes the child for visitation and fails to return the child after the visitation period ends, severing all contact with the other parent.

In a real case (Supreme Court Decision 2021. 9. 9. 2019Do16421), after the defendant brought a 5-year-old victim child, who was living with the other parent in France, to South Korea for visitation, they did not return the child to France after the visitation period ended, preventing the child from properly meeting their biological mother. The court recognized this as "having exercised illegal physical force to abduct the child," leading to the recognition of the crime of child abduction.

C. Taking a child secretly from school or daycare

This consists of cases where the child is taken from school or daycare under false pretenses or without any explanation to the other parent or teacher. Practically, this is the type with the highest rate of complaints.

The Jinju Branch of the Changwon District Court's Decision on 2023. 2. 16. 2022GoD1439 recognized child abduction in a case where a defendant took a child being cared for by the husband and mother-in-law, lying to the taekwondo school staff without discussing with her husband or mother-in-law.

3. Can I still be punished even if the intention was to protect?

A. Exception if abuse or neglect is clearly proven

If it is clearly proven that the other parent is abusing or neglecting the child in a manner that significantly harms the child's welfare, the act can be justified as a protective measure.

However, this is a very exceptional case, and one must be able to specifically demonstrate that action was needed in the interests of the child. Simply claiming that "the other parent is not raising the child properly" or that "the child's surrounding environment has somewhat worsened" or "my raising the child is better for them" is unlikely to be recognized as justification.

B. Insufficient to claim after the fact

Just making claims like "there was abuse" or "it was to protect the child" after the fact of taking the child is insufficient. Courts tend to question the credibility of such claims made after the fact. Therefore, if you foresee a need for proactive measures, you must prepare relevant evidence in advance.

C. Immediate reporting and legal procedures are necessary for safety

If you are concerned about abuse or neglect by the other parent and have to protect the child, irrespective of whether to take the child away, you must also carry out legal procedures such as ▲ reporting to the police or child protection agency ▲ requesting a family court to change the custodian or determining a custodian ▲ applying for emergency measures, etc. Taking the child without going through these procedures can greatly risk criminal charges against you.

4. Disadvantages in custody lawsuits if a crime is recognized

A. Disadvantage in custody decision

If the act of taking the child without the other parent's consent is recognized as a crime, it will have a very detrimental effect in subsequent divorce litigation or custody determination. When the court designates a custodian, it considers various factors including ▲ the child's wishes ▲ the child's age and gender ▲ the parent's willingness and ability to raise the child ▲ the child's living environment (Civil Code Article 837, Article 909), and acts that infringe upon the other parent's custody rights will negatively impact the assessment of "parenting attitudes."

In particular, if the parent who took the child cuts off contact with the other parent or hides the child's whereabouts after taking the child, the court tends to view this as an act that "prioritizes their own interests over the child's welfare," which can lead to exclusion from being designated as a custodian.

B. Limitations on visitation rights

Even if one parent is currently in a position to protect the child, if they have a history of unjustly infringing upon the other parent's visitation rights, the court may be reluctant to designate them as a custodian due to concerns that they will not properly carry out visitation in the future, or may designate them as a custodian but impose strict conditions on visitation.

5. Conclusion

When deciding to divorce or separate, taking the child can seem like a natural choice for a parent. However, the law does not recognize the right to take a child at any time simply for being a parent.

Taking a child, who is being peacefully protected and raised by the other parent, without that parent's consent can constitute the crime of child abduction under criminal law, and even if one is to avoid criminal punishment, it can play a crucially negative role in subsequent custody disputes. Therefore, a careful approach is necessary, and unless in urgent situations, one should resolve issues through consultation or legal procedures. Emotionally taking the child can lead to irreversible disadvantages for both the child’s wellbeing as well as oneself.

Child issues during divorce or separation are the most sensitive and crucial matters. It is extremely important to understand the legal principles accurately from the beginning and respond rationally and legally, and if one is already subject to investigation by law enforcement regarding specific actions, one must actively prove the unfairness of the other parent’s complaints and the measures taken were for the protection of the child.

Cheongchul Law Firm is made up of lawyers from one of the five largest law firms in the country, prosecutors, and corporate legal teams, and rather than one lawyer, specialized lawyers relevant to the case form a team to respond. Cheongchul provides comprehensive solutions beyond resolving specific issues, focusing on achieving what the client wants through legal consulting. If you need help achieving your goals, please do not hesitate to contact Cheongchul.