As war is the final political solution between countries unable to settle their disputes, lawsuits are the final legal solution between parties otherwise unable to settle their disputes. As with the causes of war, the underlying disputes in a lawsuit may have arisen over years or may be the result of one cataclysmic event.
At one end of the legal range are personal injury cases over car accidents and medical malpractice, at the other end are intense multi-year multinational patent battles, such as those between Apple and Samsung. One area that runs the gamut is divorce law.
Some cases arise after a very brief honeymoon period ends in acrimony, others develop over years or even decades, and as with the causes underlying these cases, the length of time the court must spend in resolving them should vary as well.
However, in divorce cases involving children, especially young children, responsible court procedure should be that a single court remains involved over many years in overseeing the custody agreement and resolving any issues. As custody decisions have an immense impact on the lives of the children courts usually retain jurisdiction over the parties and keep ongoing records over many years. Or at least they do in many countries, but not in South Korea.
South Korean courts make property divisions, divorce orders and custody orders and then close the case. This court process disregards the highly likely probability that conflicts will arise between divorced parents regarding issues such as relocation, schooling and even changes in income that could affect child support calculations.
Thus after the issuance of the divorce orders the practice in South Korea of closing the court action requires an aggrieved parent, often suffering due to the violations of custody or visitation orders by the other parent, being forced to open a new court case to address these issues. In a situation where one parent violates the custody or visitation rights of the other parent, the aggrieved parent must open a new court case. And for lengthy battles parents often have to return to the courts over and over each time filing a new court case.
If a case has reached decision, such as the issuance of an enforcement order, no new evidence can be submitted, even evidence of the violation of that enforcement order. Instead the party must open a new case to submit additional evidence.
Even more absurd is that if the action moves to the appellate level the new court often has no access to the prior court filings and evidence. Thus instead of the documents moving with the case, the parties have to refile all of the evidence already submitted in the lower court.
This inefficiency places excessive burden on the parties and the attorneys involved in the court case. It also places strain on appellate judges who then suffer from an inability to appreciate the case history and to place additional evidence in proper context.
A better solution for the South Korean family courts would be if the original court retained an open case allowing each parent to continually file evidence involving violations of custody or visitation rights, any child abuse, or any other issues related to child custody or child support. South Korean courts could look to the United States practice as a guide.
In the United States a court retains all records and any motions to continue or change such orders can be filed at any time. Whenever either parent violates such orders or desires a change in such orders they merely have to file the necessary documents with the same court which already has all of the records and history of the case.
When a case moves from the trial level to the appellate level all documents, motions and evidence moves with the case. And if a parent attempts to flee to another state and enters a new action in a new court that court will refuse jurisdiction and the case will be removed back to the original court. Until such time as the original court, of its own volition, transfers jurisdiction the parties must remain with the original court.
With the recent accession to the Hague Convention on International Child Abduction it is necessary for the South Korean family courts to amend their procedures to conform to international standards involving such cases. A large step in that direction would be ending the inefficient process that requires divorced parties to continually open new cases in order to address minor or major violations of custody or visitation orders or to request a change in child support.
The South Korean judiciary is well aware of these new treaty requirements and this simple procedural change would contribute substantially to meeting those requirements.
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.