조부모의 면접교섭권에 관한 연구

A Study on Visitation Right of Grandparents

In 1990, the visitation right of parent, who dose not have the custody of child after divorce, is introduced into the Korean Civil Code, Art 837-2. The noncustodial parent having the visitation of the right by agreement between the parties in divorce proceedings or by the courts order for the visitation of parent may visit or see his or her child regularly, including communicating with his or her child by phone, letters, gift exchange, etc. It may be obstacles to give or protect the best interests of child, that the Korean Civil Code dose not realize about the visitation right of the third parties such as grandparents, stepparents, aunts, uncles, siblings, live-ins, and foster parents. In this sense, this paper examines the disputes on the nature of the Korean visitation right in Korean academic fields and the Korean social demands and needs and scientific reports on the visitation right of the grandparents in the era of the high divorce rate in the 21th Century. It also reviews the essential factors in legislating for the visitation right of grandparents in Korea, if needed. It is asserted by a number of legal scholars that the child himself should have the right of visitation in favor of the best interests of the child himself for communicating with or visiting to the parent having not custody right after child s parents divorce, including the visitation right to communicate with the third parties, like grandparents, stepparents, siblings, psychological parents, etc. The author suggests that the visitation right might belong to the third parties not the child in that he or she does not have any capacity to action in order for courts to issue the visitation order to his or her grandparents or siblings without the consent of his or her custodial parent or guardian. In making of the law allowing the visitation right of the grandparents in Korea, this paper concludes as follows: First, in order to protect the parental autonomy in the family s integrity, the third parties may seek custody or visitation only when a parent has died or divorced or when the child has been adjudicated in need of care. Second, since the parents right to decide the direction of rearing child should be protected by the constitutional law, the grandparents seeking the visitation should bear the burden of rebutting the presumption in favor of the natural parent s decision with respect to custody and visitation. Finally, to protect the child s best interests, the provisions of the grandparents visitation should contain following factors; the nature of the relationship between the grandparents and the minor child, the nature of the relationship between the child s parents and grandparents, the amount of disruption that the extensive visitation will have influence on the child s life, the age of the child and grandparents, the physical and mental health of the grandparents, etc.