In Korea, a new law will not automatically transfer custody to the surviving parent when the parent who had sole custody of a child dies. Instead, the surviving parent will have to be evaluated by a court. The revision was passed in a Cabinet meeting Tuesday and will come into effect three months after it is ratified in the National Assembly.
From an Orange County family law perspective, if a parent who was awarded sole legal and sole physical custody of a child on post-judgment matter died, the surviving parent is not automatically granted custody. In fact, guardianship proceedings will likely have to take place. The surviving parent is not automatically awarded child custody upon the other parent’s death.
In Korea, currently there are no regulations about who takes over custody when the person who has sole child custody after divorce dies, but custody is customarily awarded to the surviving parent. When actress Choi Jin-sil, who had sole custody of her two children after divorce, committed suicide in October 2008, there was heated discussion over who should be awarded custody of the children because the actress’ mother did not want the father to raise the children, and many pointed out that the system needs to be overhauled.
According to the revision, when one parent dies after divorce, the former spouse will be evaluated on their ability to raise the child. If they are deemed unfit, the court can designate a guardian among close relatives or others.