Matters to be considered in making a prior disposition that alters the current state of raising children pursuant to Article 62(1) of the Family Litigation Act.

A prior disposition to change the current state of fostering a child under Article 62(1) of the Family Litigation Act shall be taken into consideration in preference to the welfare of the child, and it shall be limited to cases where it is deemed particularly necessary to settle the case in consideration of age, financial status of the parent

Article 62(1) of the Family Litigation Act, Articles 837(2) and 912 of the Civil Act

Appellant (Law Firm Won, Attorneys Choi Jong-soo et al., Counsel for the plaintiff-appellant)

Other Party

Principal of the case

Ulsan District Court Order 2008B4 dated September 22, 2008

The order of the court below is reversed, and the case is remanded to the Ulsan District Court Panel Division.

The grounds of reappeal are examined.

In exercising parental authority, priority shall be given to the welfare of a child (Article 912 of the Civil Act), and in cases where matters necessary for fostering are to be determined by the Family Court because matters concerning fostering have not been discussed or cannot be discussed between the divorce parties, the age of the child, the status of their parents’ property, and other circumstances shall be taken into account (Article 837(2) of the Civil Act). This principle is reasonable in making a decision on prior disposition concerning fostering under Article 62(1) of the Family Litigation Act. As such, prior disposition changing the current state of fostering shall be limited to cases where it is deemed particularly necessary for resolution of the case in consideration of the child’s age, financial status, and other circumstances.

According to the records, the other party filed a claim against the re-appellant for divorce and designation of the guardian, and the other party applies for a prior disposition of this case seeking suspension of parental authority and exercise of custody rights over the principal of this case (three years old) and designation of the other party as a person with parental authority and custodian for the principal of this case until the judgment becomes final and conclusive. Meanwhile, the re-appellant continues to rear the principal of this case as the biological mother of the principal of this case, and is currently under custody after the other party gives birth to the principal of this case, and the contact with the other party does not interfere with the visitation right of the principal of this case, and there is no risk of departure from Korea after acquiring Korean nationality. Thus, even if considering the welfare and age of the person, the financial status of the parent and other circumstances, it is difficult to deem that the prior disposition to change the phenomenon of fostering the principal of this case is particularly

Nevertheless, the court below decided otherwise that there is a need for prior disposition, and maintained the first instance court's decision that suspended the exercise of parental authority and right of custody for the principal of the case of the re-appellant and the other party designated as a person with parental authority and custodian for the principal of the case. Thus, the court below's decision is erroneous in the misapprehension of legal principles as to the necessity of prior disposition concerning fostering, which affected

Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)