In litigation, including divorce between A and B, in a case where: (a) a decision was finalized in lieu of conciliation that “A shall designate A as a person with parental authority and a custodian of his/her children’s disease; (b) Byung shall exercise visitation rights; and (c) if A fails to perform his/her duty to allow visitation rights, it shall be paid in 300,000 won to B as penalty for penalty for penalty for violation; and (d) a judgment was filed in lieu of conciliation against B, which sought an alteration of the contents of visitation rights from among the decision in lieu of conciliation in lieu of conciliation between C and C; and (e) A filed a counter-adjudication against B seeking a change of a person with parental authority and a custodian, the case holding that it is not permissible to modify the visitation rights, and it is desirable that C’s person with parental authority and custodian as at present.

In a lawsuit including divorce between A and B, in a case where: (a) a decision was finalized in lieu of conciliation to the effect that “A shall designate A as a person with parental authority over his/her children and children; (b) Byung shall exercise visitation rights; and (c) if B fails to perform his/her duty to allow visitation rights, he/she shall be paid KRW 300,000 to B as a penalty for penalty; and (d) a judgment was filed to seek an alteration of visitation rights in lieu of conciliation against B; and (e) a judgment was filed against B seeking an alteration of the contents of visitation rights in lieu of conciliation against B, the case holding that even if B, after the decision in lieu of conciliation, had a change of situation in which B et al. raises C in Japan, it was merely caused by the way to realize the personal purpose of avoiding B’s visitation rights; and (e) a court’s amendment to the contents of the visitation rights by taking into account such change of situation cannot be deemed to have been made in lieu of the agreement between C and C, as it is desirable to allow C to realize the welfare relationship between C and C’s.

Articles 837 and 909(4) of the Civil Act

Claimant (Other Party to this Tribunal) (Attorney Shin-soo et al., Counsel for the plaintiff-appellant in charge of Tae-LLC et al.)

Other (Attorney Kim J-jin, Counsel for defendant-appellant)

Principal of the case

Seoul Family Court Order 2014Mo4566, 3054 dated May 19, 2015

1. The part against the other party to a trial among trials in the first instance, shall be revoked, and the claim of the appellant falling under the revoked part shall be dismissed;

2. The remaining appeal by the other party is dismissed;

3. The total expenses of an adjudication shall be borne individually by each person;

Purport of claim

this Judgment

The Seoul Family Court 2012ddan80067 divorce and consolation money, etc. between the claimant (only the respondent, hereinafter referred to as the "applicant") and the other party (only the other party, hereinafter referred to as the "the other party") shall revise the provisions on visitation negotiations as follows in lieu of the conciliation on February 14, 2014.

A. While the principal of the case resides in a foreign country, the other party may make a video call once every two weeks with the principal of the case and, if the other party is unable to make a video call due to unavoidable circumstances, the other party may make a video call with the principal of the case by supplementing to the frequency of the video call not held in the preceding week. The time of each video call shall not exceed 20 minutes, and the time of each video call shall be between 18:00 to 21:00 as of the time of the country in which the principal of the case resides.

B. Where the principal of the case resides in Korea with the claimant, the other party may visitation the principal of the case as follows:

1) By December 31, 2018, second, by December 31, 2018, the second, by December 2, 2014, second, by Saturdays 14:00 to 18:00.

2) From January 1, 2019, until the principal of the case becomes adult, second of each month, from January 1, 2019 to the date when the principal of the case becomes adult, second of each month, fourth of each week, 14:00 to Sundays 18:00.

3) After the principal entered an elementary school, 6 7 gam for each of the six days during the summer and winter vacation period.

4) Each of the above schedule may be changed by subsequent consultation following the growth of the principal of the case, and shall be conducted by respecting the intent of the principal of the case to the maximum extent possible.

C. The other party shall endeavour not to stimulate the claimant or his/her family members by means of unnecessary actions, contact, etc. before and after the visitation. If possible, the other party does not contact the claimant or his/her family members by telephone, e-mail, visit, etc. other than the minimum contact for visitation, and the contact for visitation shall use mobile phone letters, and the frequency of such contact shall be limited to not more than five times, and the content or contact shall be essential for visitation.

Anti-Adjudication

A person with parental authority and a custodian of the principal of the case shall be changed to another party.

Purport of appeal

This Trial: It is marked as Disposition 1.

An anti-adjudication: The adjudication of the first instance shall be revoked. It shall be changed to the person with parental authority and custodian of the principal of the case.

1. Basic facts

In full view of the records and the overall purport of the examination of the case, the following facts are recognized.

A. On December 30, 2010, the claimant and the other party have completed the marriage report and had the principal in the case as a child.

B. On September 24, 2012, the claimant filed a lawsuit against the other party seeking divorce, designation of a person with parental authority and a custodian, child support, etc. in this court’s 2012ddan80677. In the above divorce case, the claimant and the other party specifically conflict with respect to the designation of a person with parental authority and a custodian of the principal of the case.

C. On December 5, 2012, the other party filed an application for a prior disposition seeking the visitation right of the principal of the case at this court No. 2012 business 1962, and the said court rendered a prior disposition on December 20, 2012, stating that “the other party may have the visitation right of the principal of the case from December 29, 2012 to December 17, 2012 at least 10:00 to 17:00 per week from the first instance judgment or the date the conciliation of the case is concluded.” Nevertheless, the claimant filed an appeal against the said prior disposition without cooperating with the visitation right, and the appellate court dismissed the prior disposition as to July 19, 2013, every Saturday 14:00 to 18:00 (hereinafter “instant prior disposition”). However, the petitioner re-appealed the said prior disposition as is, even if the petitioner did not cooperate with the visitation right.

D. Nevertheless, on December 27, 2013, the claimant did not comply with the instant prior disposition regarding visitation, and the court of the said divorce case decided to impose ex officio an administrative fine of KRW 10,000,000 on the claimant.

E. On February 14, 2014, following the second conciliation date, the said court made a decision as a substitute for conciliation of the same content as indicated in the “decision” (hereinafter “instant decision”). The instant decision includes: (a) the claimant’s person in parental authority and custodian of the principal of the case; (b) the claimant, in relation to the visitation right, must notify the other party of the visitation right at least two weeks if the visitation right is difficult (Article 4-d.(d)); and (c) the penalty provision (Article 4-e.) that requires the claimant to pay KRW 300,000 as penalty at an interval of one week if the claimant fails to perform the visitation right (Article 4-d.(e)). The instant decision was finalized on March 5, 2014, whose objection period expired.

F. However, on March 14, 2014, the applicant filed the instant judgment seeking a change in the contents of the visitation among the instant decision on May 15, 2014. On the other hand, the applicant filed the instant judgment seeking a change in parental authority and the custodian on August 25, 2014.

G. Until divorce with the claimant, the other party was unable to conduct the interview right with the principal of the case according to the prior disposition of this case due to the claimant’s non-cooperation. After divorce with the claimant, the claimant immediately left the Republic of Korea on March 1, 2014 (the first instance trial conciliation procedure) and on October 28, 2015 (the second hearing date), the other party did not conduct the interview right with the principal of this case on two occasions, as well as the interview right with the principal of this case.

In the demonstration interview conducted in the first instance trial and the trial, the other party took part in the play in the toy, etc. prepared for the principal of the case, and the principal of the case also participated in the pleasant play with the other party without the other party's rejection to the other party and smoothly participates in the interview.

H. On the date of the second examination of the trial, the claimant and the other party agreed to proceed with the visitation by means of video conversations set forth in the first instance trial during the period prior to the date of the third examination. However, the claimant and the other party agreed to proceed with the visitation by means of video conversations set forth in the first instance trial during the period of the third examination. However, the claimant and the other party asserted only the video conversations set up in their cellular phone with the reasons why it is difficult to obtain access despite the condition that the Kakaook, which was already set up on his/her cellular phone, could have been Kakaox, even though it was possible to do so by the Kakaox, which was already set up on the cell phone of the other party. Accordingly, the claimant did not have access to the video call by means of video conversations for the above period (the claimant asserted that the other party did not do so but did not have access to the video call, but the other party actively endeavored to newly purchase the mobile phone and other video calls to install the Kaop).

I. After the completion of the examination at the trial at the court of first instance, the other party, according to the contents of the trial at the court of first instance, participates in the visitation by means of the instant principal and video currency from December 6, 2015. On January 3, 2016, the other party visited the principal of the case who entered the Republic of Korea and the other party’s residence.

2. The parties' assertion and judgment

A. The parties' assertion

After the decision of this case, the claimant asserts that there is a change in circumstances in which he raises the principal of this case in Japan, and that the contents of the visitation right should be modified, such as the notification provision of Article 4-d (d) and the penalty provision of Article 4-e (b) are unilaterally disadvantageous to the claimant, so the contents of the visitation right should be modified.

In this regard, the other party did not intend to perform the visitation right normally, and thus, the claim of this case is unfair, and the other party is requested to change the person with parental authority and the custodian of the case to the other party through a counter-adjudication.

B. Determination as to the petitioner’s main claim for a trial

As seen earlier, the following circumstances are acknowledged by the record and purport of the examination of the case, i.e., (a) the claimant was still dissatisfied with the instant decision of the court regarding the visitation during the divorce lawsuit; (b) the applicant was unable to comply with the instant decision of the court; and (c) the applicant did not respond to the demonstration right conducted twice after divorce; and (d) the applicant was already installed in his cell phone for reasons that it is difficult for the court to obtain access to the instant decision, and (e) the applicant was unable to obtain access to the instant case from the date of conclusion of the decision of the first instance court by taking into account the following circumstances: (a) the applicant did not have access to the instant case from the date of signing the instant decision of the court; and (b) the applicant did not have access to the instant case for the purpose of seeking access to the instant case from the date of signing the agreement to the effect that he did not have access to the instant case; and (c) the applicant did not have access to the instant case from the date of signing the decision of the court of first instance.

In this situation, ① the pilot visitation right conducted twice in the first instance court and the trial court and the principal of the case have a considerable preference to each other on January 3, 2016, including: (i) the other party and the principal of the case have a pleasant play without denial; and (ii) the interview right by the method of video call claimed by the claimant is only 4 years of age, and the interview right is insufficient to divide the emotional assistant principal with the other party due to lack of smooth communication with the other party, and it is not appropriate yet by the method of mutual emotional interview with the principal of the case; (iii) in light of the tendency of the interview right shown by the court of first instance and the other party, it is necessary to include the notification provision and the provision of penalty, such as Paragraph (d) of the same Article, in order to secure smooth visitation right, in consideration of the need to enter the contents of the interview right into the contents of the interview right, and rather, the interview right of the other party is required to be resolved through active consultation with the principal of the case, as determined by the other party of the case.

Therefore, the claimant's request for the main trial is without merit.

C. Determination as to the other party’s counterclaim

In light of other circumstances, it is desirable to have a person with parental authority and a custodian identical to the current state for the welfare of the principal of this case, and thus, the other party's request for a counter-adjudication is groundless, since it is reasonable to have the person with parental authority and custodian identical to the present state for the welfare of the principal of this case.

However, if the claimant continues to engage in such non-cooperative conduct as the present in the interview right of the other party in the future, it would eventually interfere with the emotional stability of the principal of the case and the smooth development of personality, thereby impairing the welfare of the principal of the case, and it would be difficult to exempt him from his responsibility in the same way as the change of the person with parental authority and the custodian.

3. Conclusion

Therefore, the claimant's request for the main trial and the other party's request for a counter-trial shall be dismissed as without merit, and since the part of the request for the main trial among the trials in the first instance is unfair with a different conclusion, it shall be accepted partially by the other party's appeal and shall be dismissed. The other party's appeal shall be dismissed as it is without merit. It is so decided as per Disposition.

[Attachment] Decision: omitted

Judges Min You-sook (Presiding Justice)