Hello, this is attorney Sang-yoon Eom of Cheongchul Law Firm.

In divorce and child custody disputes, the visitation rights of the non-custodial parent are often contested less on "whether the right exists" than on "under what conditions and how it should be exercised." Civil Act Article 837-2 (민법 제837조의2) guarantees the non-custodial parent the right to meet the child in person or to keep in contact by letter, telephone, video call and other means, and empowers the Family Court to order the arrangement, restriction, exclusion or modification of visitation. In practice, however, where the conflict between the custodial and non-custodial parent runs high, courts not infrequently issue decisions that effectively exclude visitation in the name of protecting the child.

In its judgment of July 16, 2026 in case 2024Meu15467, the Supreme Court recently declared that the fact that a child's whereabouts are unknown, making it difficult to set a concrete schedule and method for visitation, does not in itself constitute a "special circumstance that would harm the child's welfare" justifying the exclusion of visitation, and reversed and remanded the lower court's decision that had rejected the visitation claim on that ground alone, for misapplication of the law. The Court also clarified the procedural rule that, where a family non-contentious case is joined to a pending judicial divorce claim, the other party may seek visitation by way of counterclaim, and that such a counterclaim is permitted even at the appellate stage subject to certain requirements. Below we examine in turn the structure of visitation rights under Civil Act Article 837-2 and the "special circumstances" requirement, the key issues in this judgment, and the procedural landscape of visitation claims brought as counterclaims.

Structure of Visitation Rights under Civil Act Article 837-2 and the "Special Circumstances" Requirement

Civil Act Article 837-2(1) (민법 제837조의2 제1항) provides that a parent who does not directly raise the child and the child have the mutual right to visitation, and paragraph (2) of the same Article allows the Family Court, where necessary for the child's welfare, to restrict, exclude or modify visitation upon a party's request or on its own motion. By design, visitation rights are guaranteed in principle, and their restriction or exclusion is possible only where the requirement of being "necessary for the child's welfare" is met.

The Supreme Court has specified the factors to be considered in determining whether there are "special circumstances that would harm the child's welfare" as follows.

(i) the child's age, health and wishes regarding visitation

(ii) the bond and closeness between the parent seeking visitation and the child

(iii) the intent and purpose behind the visitation request

(iv) whether, in light of the current custodial environment, visitation would provoke conflict between the custodial parent and the child or impede the child's adjustment to the new custodial environment

(v) whether the applicant has a history of serious misconduct or child abuse toward the custodial parent or the child

The Court's position is that these factors must be weighed together, examining concretely how visitation would affect the child's welfare in both the short and the long term, so that the decision is the one most beneficial and appropriate to the child's growth and well-being.

The Supreme Court further holds that even where some factors likely to have a negative short-term effect on the child's welfare are found, the positive long-term effects of visitation taking place must be given deep consideration. It has also made clear that courts should seek, as far as possible, an arrangement suited to the child's welfare by restricting the timing, place and method of visitation, and that they must be cautious about excluding visitation altogether on the basis of "vague concerns."

Unknown Whereabouts of the Child and Whether Visitation May Be Excluded

The issue in case 2024Meu15467 was whether the fact that the child's whereabouts could not be ascertained, so that no concrete schedule or method of visitation could be set, constitutes a "special circumstance that would harm the child's welfare" permitting the exclusion of visitation. The lower court rejected the visitation claim on the ground that the child's whereabouts were unknown and no concrete schedule or method could be set, holding that "visitation cannot be regarded as feasible at present."

The Supreme Court, however, held that the fact that the child's whereabouts are unknown cannot in itself be regarded as a "special circumstance in which visitation would harm the child's welfare," reasoning that (i) the unknown whereabouts of the child is a matter concerning the "difficulty of performance" of visitation, which is qualitatively distinct from a circumstance in which visitation itself harms the child's welfare, and (ii) if visitation rights were excluded on that ground alone, a non-custodial parent who does not know the child's whereabouts would invariably be deprived of the legally guaranteed right to visitation, a result incompatible with the design of Civil Act Article 837-2 (민법 제837조의2), namely "guarantee in principle, exclusion by exception."

The significance of this ruling lies in making clear that "circumstances that make enforcement difficult right now" and "circumstances that require visitation itself to be prohibited" are legally entirely different matters. Difficulties in enforcement are to be addressed by adjusting the mode of enforcement, such as (i) indirect compulsion, (ii) an order directing the custodial parent to cooperate in ascertaining the child's whereabouts, and (iii) the appointment of a visitation supervisor or expert, and are not matters that determine the existence of the right itself.

Accordingly, where the custodial parent adopts a strategy of blocking visitation altogether by citing a change in the child's whereabouts or the non-disclosure of the child's residence, it is now clear that such circumstances are not grounds that can determine the "existence" of a visitation order, but merely grounds for "adjusting the mode of enforcement."

The judgment also made clear that where family non-contentious matters such as designation of the person with parental authority or the custodian or a claim for child support are joined to a pending judicial divorce claim (a Category Na family litigation case), the other party may file a visitation claim (a Category Ma family non-contentious case) as a counterclaim. Where such a counterclaim is raised at the appellate stage, however, Article 412 of the Civil Procedure Act (민사소송법 제412조) applies by analogy, so that it is permitted only where there is no risk of prejudicing the counterclaim respondent's right to be heard at each instance, or where the respondent consents or is deemed to have consented by responding to the hearing on the counterclaim without objection.

Practical Implications for Family Litigation

The significance of this judgment is that it reaffirms the "guarantee in principle" of the non-custodial parent's visitation rights.

From the custodial parent's perspective, a strategy of blocking visitation itself solely on the basis of a change in the child's whereabouts or custodial environment may no longer be effective. A party who wishes to contest a change in the custodial environment should build their arguments around concrete circumstances in which visitation would harm the child's welfare (such as the child's state of adjustment, or the applicant's history of misconduct or abuse).

From the non-custodial parent's perspective, on the other hand, it is advantageous to make sure to obtain a visitation order itself even if immediate performance is difficult. Once the order is in place, enforcement may be pursued through separate means such as (i) indirect compulsion, (ii) an application to modify the arrangement, and (iii) the use of a supervisor or expert, which is more efficient than repeatedly re-filing applications without any order in hand.

Disputes over visitation in family cases are a sensitive area directly affecting the welfare of the custodial parent, the non-custodial parent and the child alike, and whether such a dispute may lead to the exclusion of visitation rights should be judged with care in light of the Supreme Court judgment discussed above.