The criteria for determining who is a minor among the divorced parents shall be the parental authority holder and the guardian of the minor.

Articles 837, 843, and 909 of the Civil Act

Supreme Court Decision 2008Meu380 Decided May 8, 2008

Plaintiff

Defendant

Principal of the case

Suwon District Court Decision 2007Reu39, 346 decided October 24, 2008

1. Of the judgment below, the part concerning the claim for designation of parental authority holder and custodian with respect to the principal of the case and the part concerning the payment of child support shall be reversed, and this part of the case shall be remanded to the Panel Division of the District Court.

2. The remaining appeals by the Plaintiff (Counterclaim Defendant) are dismissed.

We examine the grounds of appeal.

1. Parental authority, including fostering of children, is parents' rights and duty, which directly affects the welfare of minor children, so in determining who is a minor child and a custodian when parents divorce, the parental authority should be determined in the direction that is most helpful and appropriate for the growth and welfare of minor children, by comprehensively taking into account all the factors such as the sex and age of minor children, parents' patriotism and intent to rear them, as well as the existence of economic capacity necessary for fostering, the degree of friendship between the father or mother and minor children, and the opinion of minor children (see, e.g., Supreme Court Decision 2008Meu380, May 8, 2008).

With reference to the reasoning of the judgment of the court of first instance, the court below: (a) the plaintiff (Counterclaim defendant; hereinafter "the plaintiff") and the defendant (Counterclaim plaintiff; hereinafter "the defendant") were legally married couple who completed a marriage report on January 22, 1998; (b) the plaintiff has the principal of the case; (c) the plaintiff demanded divorce from February 2006 to the defendant; (d) on the same issue; (e) on April 15, 2006, the plaintiff argued for divorce with the defendant; (e) on the same issue; (e) on May 15, 2006, the defendant deserted his livelihood and abandoned the plaintiff; and (e) on the grounds that the wife's address and violence rate are serious; (e) the defendant neglected his family life as a guidance to work; (e) the defendant abandoned his parental authority over his family; and (e) the defendant's child-care and other grounds for divorce after his child-care, and (e) the court below rejected the plaintiff's claim for divorce and other grounds for divorce.

However, it is difficult to accept the decision of the court below on the designation, etc. of parental authority holders and custody holders in light of the following points.

According to the facts and records admitted by the court of first instance by citing the reasons of the judgment, the principal of this case seems to be helpful for the sound growth and welfare of the principal of this case until her husband was born on September 26, 2002 or at the age of 6 years old and emotionally mature. The plaintiff and her mother were mainly cared for the principal of this case before her mother was living, but this was derived from the plaintiff's occupational life. The principal of this case was able to obtain much income from her stable workplace life. The principal of this case is currently residing in the mother house of Spain and was attending a local elementary school, and her mother's welfare will to care as her mother in a good environment because her husband and her mother did not have a child. In light of the above legal principles, it is sufficient to see that the principal of this case's sound growth and her mother's welfare will and her parents will to be able to exercise her parental authority over the principal of this case as her child, and to designate the principal of this case as her child and her family.

Nevertheless, without examining and determining these points properly, the court below, without designating the defendant as the exerciseer and guardian of parental authority of the principal of the case and ordered the payment of child support to the plaintiff. In so doing, this part of the judgment of the court below is erroneous in the misapprehension of legal principles as to the designation of the exerciseer and guardian of parental authority, or failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal assigning this error has merit

2. The Plaintiff appealed to the remainder of the judgment below against the Plaintiff. However, there is no indication in the petition of appeal or the appellate brief on this part.

3. Therefore, of the judgment below, the part concerning the claim for designation of the person exercising parental authority over the principal of the case and the part concerning the payment of child support shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination. The remaining appeal by the plaintiff shall be dismissed. It is so decided as per Disposition by

Justices Kim Young-ran (Presiding Justice)