[1] The elements to be considered in determining who is a minor and a custodian when a parent is divorced

[2] The case reversing the judgment of the court below on the ground that it is not sufficient to recognize the legitimacy of the above change in the custody status solely on the ground that the fact that the mother is more appropriate than the father in the case of raising a female woman in the complex, and that it is not sufficient to recognize the legitimacy of the above change in the custody status

[1] Parental authority, including fostering of children, is parents' rights and duty, which directly affects the welfare of minor children, so it shall 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 intention of fostering of minor children, existence of economic capacity necessary for fostering of minor children, friendly density between the father or mother and minor children, and intention of minor children.

[2] The case reversing the judgment of the court below on the ground that it is not adequate to recognize the legitimacy of the above change of childcare status on the ground that it is not sufficient to recognize the legitimacy of the above change of childcare status on the sole basis of the general consideration that the mother of a young child born for several years is more appropriate than the father's mother is more appropriate for the above change of childcare status on the ground that the change of the current childcare status is justified.

[1] Articles 837 and 909(4) of the Civil Act / [2] Articles 837 and 909(4) of the Civil Act

[1] Supreme Court Decision 2008Meu380 Decided May 8, 2008

Plaintiff (Attorney Job Offer, Counsel for the plaintiff-appellant)

Defendant (Law Firm Inulul, Attorneys Jeon-young et al., Counsel for the defendant-appellant)

Principal of the case

Daegu High Court Decision 2008Reu152, 169 decided March 27, 2009

Of the judgment below, the part concerning the claim for designation of parental authority holder and custodian and the claim for child support is reversed, and that part of the case is remanded to the Daegu High Court. The remaining appeal by the Defendant Lessee is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Parental authority including fostering a minor is the parent's right and duty, which directly affects the welfare of the minor and thus, in determining who is a minor's parent's child's child's child's parents' designation as a minor child or a custodian in case of parents' divorce, the parental authority should be determined in the direction that is most helpful and appropriate for the growth and welfare of the minor, by comprehensively taking into account all the elements such as the sex and age of the minor, the parent's patriotism and intent to rear the minor, the existence of the parent's financial ability necessary for fostering, the relative density between the father or the minor, and the minor's opinion (see Supreme Court Decision 2008Meu380, May 8, 2008, etc.).

The court below acknowledged that the plaintiff (Counterclaim defendant; hereinafter "the plaintiff") and the defendant (Counterclaim plaintiff; hereinafter "the plaintiff") married on April 20, 1995 to have the principal of this case as his child, and the plaintiff and the defendant separated from the principal of this case by moving their father's office around April 17, 2006 to separate him from the principal of this case. After finding that the principal of this case is being raised by the defendant, the principal of this case was under custody. Considering the plaintiff's patriotic situation and the intention of fostering the principal of this case, it cannot be said that one of the plaintiff and the defendant cannot be seen as being superior to any one of the plaintiff and the defendant with respect to the fostering of the principal of this case, and there is no circumstance that may hinder the principal of this case's fostering of the principal of this case, and even if the plaintiff and the defendant did not exercise his right to foster the principal of this case, it cannot be seen that the defendant would have been able to exercise his right to foster the principal of this case until 9 years old child's growth and emotional situation.

However, this decision of the court below is hard to accept for the following reasons.

According to the facts and records acknowledged by the court below, the defendant tried to nurture the principal of this case for several years after the separation from the plaintiff and tried to play a parent's role necessary for the healthy growth, and as a result, the emotional relationship with the defendant of this case has been formed more closely than the plaintiff's case. Accordingly, the principal of this case clearly expresses his intention to live together with the defendant when the plaintiff and the defendant are hedging, and the defendant plans to develop the computer software in his father's house or to foster the principal of this case with his intention to foster his father's own opinion, and therefore, it seems that there is no particular obstacle to directly care of the principal of this case. On the other hand, the plaintiff plans to raise the principal of this case while operating Lestop, and therefore there is no need to depend on the third party, and there is no obvious difference between the plaintiff and the defendant's intention to rear the principal of this case, economic condition, and ability to foster the principal of this case.

Examining these circumstances in light of the legal principles as seen earlier, even if the defendant continuously raises the principal of this case, it is rather helpful for the plaintiff to be designated as the person exercising parental authority over the principal of this case and the person fostering the principal of this case. Thus, it is clear that such change is more helpful to the sound growth and welfare of the principal of this case than to maintain the current state of fostering, in order to justify the designation of the plaintiff as the person exercising parental authority over the principal of this case and the person fostering the principal of this case. However, in light of the above circumstances unique to this case, such as the role performed by the defendant in fostering the principal of this case, the principal of this case formed thereby, the emotional friendliness of the principal of this case, the mental friendliness of the defendant, the possibility of direct rearing of the principal of this case, and the possibility of direct rearing of the principal of this case, it is not sufficient to recognize the legitimacy of such change.

Nevertheless, the court below did not properly examine and determine whether there are other circumstances to recognize that designating the plaintiff as the person exercising parental authority and the person fostering the child, changing the current state of custody of the principal of the case, which are more helpful to the sound growth and welfare of the principal of the case, and maintained the judgment of the first instance that designates the plaintiff as the person exercising parental authority and the person fostering the principal of the case, and ordered the payment of child support on the premise of the designation. In so doing, the court below erred by misapprehending the legal principles on the designation of the person exercising parental authority and the person fostering the child, or failing to exhaust all necessary deliberations, which affected

2. The defendant also appealed to the part against the remaining defendant (the part on claim for consolation money in counterclaim) of the judgment below. 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 parental authority holder and custodian and the claim for child support is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The defendant's remaining appeal is dismissed and it is so decided as per Disposition by the assent

Justices Kim Nung-hwan (Presiding Justice)