부모 아닌 자의 양육권

Abstract

Non-parents’ right to child custody is one of the many problems accompanying the current changed family view or family model. Korean Civil Law already has a history of trying to adapt to the new concept of family by breaking away from the traditional concept of family through legislation allowing (limited) grandparents’ right to visitation. This can be said to be part of the re-establishment of parental rights in terms of children’s welfare. The issue of custody of non-parents covered in this paper could also take the first step in its discussion in the same context. Such an examination inevitably involves adjusting the concept of parental rights, and it also involves a review of the relationship between parental rights and guardianship of minors as a supplement to parental authority.
 The custody of non-parents must first find its basis in guardianship of minors. However, it is worth noting that the supplementary nature of guardianship of minors to parental authority simultaneously implies an exclusive relationship between them. This is a limitation derived from the fact that guardianship of minors was originally designed as a supplement to parental authority, and in certain situations, it could come into an obstacle to realizing the maximization of children’s welfare. To solve this problem, there may be no need to re-establish the supplementary relationship between parental rights and guardianship of minors, but we need to consider an alternative of guardianship of minor. This article reviews the U.S. de facto parents system as the alternative. The de facto parent system, like the minor guardianship system, supplements the parental authority function, but its main focus is to contribute to the children’s welfare by maintaining and continuing the meaningful relationship already formed between the child and a non-parent. This does not simply assume an exclusive conflict with parental authority. This can be confirmed in the fact that joint custody or secondary custody is granted to the de facto parents in certain cases, which ultimately intended for the coexistence and cooperation of parents and de facto parents in raising children. This will be beneficial in achieving maximization of children’s welfare.