A week ago Saturday I traveled to my former residence in Namwon to pick up my two children, Richard and Andrew. As usual the children were not waiting for me and I knew that once again my ex-wife was violating the court agreement. This two week pattern of violation has been an unfortunate part of my life since the divorce became final in May of 2011.
In that time I have grown very accustomed to her repeated violations of the court agreement on visitation and custody. I had also grown very used to the slow, almost glacial, pace of the South Korean family court system.
However, this time it was different as the court had recently issued an enforcement order designed to prevent further violations. This enforcement order is similar to contempt orders that are issued by U.S. courts; however instead of jail time the penalty for violating a Korean civil court enforcement order starts with a fine. Nonetheless it was surprising to discover that she still had the gall to disregard a direct court order. Unfortunately that was not the last or greatest of my discoveries that day.
The reason this situation exists is due to unique aspects of the South Korean family court system. In this system parties are urged at every step of the process to reach a mediation agreement instead of resolving their differences in litigation before the court. However this process favors the more aggressive party and is practically untenable for a non-native Korean speaker.
Further enforcing this type of agreement is difficult for native Koreans and practically impossible for any individual not highly fluent in the Korean language.
The South Korean police do not have jurisdiction when a parent violates these agreements as it is considered a civil matter and, under South Korean family law, a parent cannot kidnap their own child. The left-behind parent must instead resort to the family court system where there are three separate court actions that must be undertaken in order to enforce the mediation agreement.
Each of these court actions requires an attorney and the excessive cost of hiring an attorney means that many left-behind parents are left without recourse, especially as the penalties for violation are almost always merely monetary in nature. In cases where there is a large inequality in earning power or assets the wealthier parent almost always takes the children at their whim.
Compounding the problem is that the South Korean family courts, in an effort to rectify past sins, now will grant custody automatically to the mother unless there is substantial evidence of mental illness or improper behavior. This is in stark contrast to the prevailing worldview in advanced countries that courts should base their decisions on the best interests of the child, which often results in joint custody with frequent visitations.
For foreign divorcees there is the added difficulty that the family court may also consider the ethnicity of the parents and, unfortunately, exhibits a bias in favor of the Korean parent as the more appropriate caregiver. Thus even foreign divorcees who demonstrate evidence of child abuse or mental illness by the Korean parent will often fail to persuade the court in the custody battle. The law on child custody needs to be updated to advanced country status to consider the best interests of the child without regard to nationality, ethnicity or other suspect factors.
Finally there is the issue that Korea has not yet acceded to the Hague Convention on International Parental Kidnapping. Thus while foreign divorcees going through the Korean family court system face an uphill battle, for parents whose children have been brought to South Korea in violation of a foreign court custody order the battle is nigh unwinnable.
As recently as August the National Assembly considered acceding to this international treaty, however as of yet the action has been tabled and likely will not be acted on until next January at the earliest. This failure to accede to this treaty has negative consequences for the image of South Korea in the world. For divorce attorneys and left-behind parents the world over consider South Korea a destination country for international parental kidnappers.
Currently over nine hundred children from just the United States are residing in South Korea with a South Korean parent who, under U.S. and international law, are considered kidnappers and subject to criminal punishment in the U.S.
However while I strongly urge the National Assembly to adopt the Hague Convention on International Parental Kidnapping at its earliest opportunity such action will do nothing to alleviate the consequences of my greatest discovery last Saturday that not only were my children not at home but that it was no longer their home.
In the period of time it took to file the necessary court actions and to persuade the court to issue the enforcement order my ex-wife sold the family home and, within two weeks after the issuance of the order, removed the children from school, canceled her phone and disappeared with the children in direct violation of the court order and my custody rights.
And while I have been blessed in South Korea with position and time to pursue the appropriate court actions, it is with great sadness that I have joined the woeful ranks of the left-behind parents who with tearful eyes plead to complete strangers to help them in locating their children. In my dreams
I still play golf with my oldest son and I still remember his laughter and joy on our many vacations at his grandmother’s house in America. Seeing life through his eyes changed me forever and I hope I will see him and his younger brother again. If you, the reader, wish to assist in the search for my children please visit their Facebook page called “Richard and Andrew Fiedler are Missing.”
By Daniel Fiedler
Daniel Fiedler has been a professor of law in South Korea since 2006 and a licensed attorney in California since 2000 and Arizona since 1998. ― Ed.
