【Holding】
[1] Whether the family court may exclude visitation, upon a party's request or ex officio, where there are special circumstances in which visitation under Article 837-2 of the Civil Act would harm the welfare of the child (affirmative), and matters to be considered in making such determination
[2] In a case concerning whether circumstances such as the child's whereabouts being unknown may constitute grounds for excluding visitation by the non-custodial parent, the Court held that the lower court erred in its misapprehension of legal principles by rejecting the claim for visitation on the ground that it was difficult to regard the performance of visitation as currently possible because the child's whereabouts were unclear and no specific schedule or method could be set
[3] Where a non-contentious family case, such as a case for designation of the person with parental authority and the custodian or a claim for child support, is pending in conjunction with a claim for judicial divorce, which is a Category Na family litigation case, whether the opposing party may file, as a counterclaim, a claim for visitation, which is a Category Ma non-contentious family case related to the said cases (affirmative) / Cases in which such a counterclaim for visitation is permitted at the appellate instance
【Summary of Decision】
[1] In principle, the family court should permit visitation between parent and child pursuant to Article 837-2 of the Civil Act, and may exclude visitation upon a party's request or ex officio only where there are special circumstances in which visitation would harm the welfare of the child. Even in such cases, however, taking deeply into account the positive effects that visitation may have on the child's welfare in the long term, even if some factors adversely affecting the child's welfare in the short term are found in the context of conflict arising from the parents' divorce, etc., the family court should, in exercising its purposive discretion in each individual case, ensure that visitation takes place in the manner most beneficial and appropriate to the child's growth and welfare to the extent possible, such as by restricting the time, place, and method of visitation, and should be cautious in excluding visitation itself on the basis of vague concerns without such consideration. In this regard, whether visitation harms the welfare of the child should be determined in the direction most beneficial and appropriate to the child's growth and welfare by comprehensively considering the child's age, health condition, and wishes regarding visitation, as well as the bond and closeness between the child and the parent requesting visitation, the intent or purpose of the request for visitation, whether, in light of the child's current custodial environment, visitation would cause conflict between the custodial parent and the child or hinder the child's adjustment to a new custodial environment, and whether the person requesting visitation has a history of serious misconduct or child abuse against the custodial parent or the child, while specifically examining how visitation would affect the child's welfare in the short and long term.
[2] In a case concerning whether circumstances such as the child's whereabouts being unknown may constitute grounds for excluding visitation by the non-custodial parent, the Court held as follows: even if it is difficult to regard the performance of visitation as currently possible because the child's whereabouts are unclear and no specific schedule or method of visitation can be set, excluding the right of visitation for such reason would lead to the grossly unjust result that a non-custodial parent who does not know the child's whereabouts would always be deprived of the legally guaranteed right of visitation, and such circumstances in themselves can hardly be regarded as "special circumstances in which visitation would harm the welfare of the child" warranting exclusion of visitation; nevertheless, the lower court erred in its misapprehension of legal principles by rejecting the claim for visitation on such grounds.
[3] Where a suit in a Category Ga or Na family litigation case has been filed and a Category Da family litigation case or non-contentious family case whose cause of claim is based on the same facts, or in which the merits of one claim are a prerequisite to the merits of another, is pending before a different family court, the court hearing the Category Ga or Na family litigation case may, ex officio or upon a party's motion, consolidate the Category Da family litigation case or the non-contentious family case by ruling (Article 14(3) of the Family Litigation Act), and where several family litigation cases, a family litigation case and a non-contentious family case, or several non-contentious family cases are based on the same facts or the merits of one claim are a prerequisite to the merits of another, they may be filed as a single petition (Article 14(1) of the Family Litigation Act; Article 20-2 of the Family Litigation Rules). Meanwhile, under Article 2(1)2(b)3 of the Family Litigation Act, a claim concerning the disposition, restriction, exclusion, or modification of the right of visitation belongs to Category Ma non-contentious family cases.
The opposing party in a non-contentious family case may, until the conclusion of proceedings at the first instance, file a counterclaim seeking payment of money, delivery of goods, or other performance of property obligations as a Category Ma non-contentious family case related to the petitioner's claim (Article 92 of the Family Litigation Rules), and, by analogy to Article 412 of the Civil Procedure Act, may also file a counterclaim in a Category Ma non-contentious family case at the appellate instance where there is no risk of harming the counter-respondent's interest in having an instance, or where the counter-respondent consents or is deemed to have consented by responding to the examination of the counterclaim without objection.
In light of the relevant statutes and legal principles as a whole, where a non-contentious family case, such as a case for designation of the person with parental authority and the custodian or a claim for child support, is pending in conjunction with a claim for judicial divorce, which is a Category Na family litigation case, the opposing party may file, as a counterclaim, a claim for visitation, which is a Category Ma non-contentious family case related to the said cases. If such counterclaim is filed at the appellate instance, it should be regarded as permissible, by analogy to Article 412 of the Civil Procedure Act, where there is no risk of harming the counter-respondent's interest in having an instance, or where the counter-respondent consents or is deemed to have consented by responding to the examination of the counterclaim without objection.
【Referenced Statutes】
[1] Article 837-2 of the Civil Act [2] Article 837-2 of the Civil Act [3] Articles 2(1)1 and 2, 14(1) and (3) of the Family Litigation Act; Articles 20-2 and 92 of the Family Litigation Rules; Article 412 of the Civil Procedure Act
【Referenced Precedents】
[1] Supreme Court Order 2017Seu628, December 16, 2021 (Gong2022Sang, 184)
[3] Supreme Court Order 2024Seu866, 867, 868, March 24, 2025 (Gong2025Sang, 776)
(Source: Supreme Court Decision 2024Meu15467, July 16, 2026 | Judicial Information Disclosure Portal, Precedents)
2026. 10. 14. · By Attorney Dongwoo Shin
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