What If Your Ex Refuses Child Handover After Court Order in South Korea? Enforcement Strategies
Table of Contents
- 1. What Can You Do When the Other Party Refuses to Comply with a Child Handover Order?
- 2. Step 1: How Do You Obtain an Enforcement Title (Final Judgment)?
- 3. Step 2: How Do You Apply for a Performance Order?
- 4. Step 3: How Are Administrative Fines Imposed?
- 5. Step 4: When Can You Apply for Detention?
- 6. Step 5: Why Is a Damages Lawsuit Effective?
- 7. How Can You Utilize Direct Enforcement and Criminal Proceedings?
- 8. Which Strategy Should You Choose?
- 9. What Do the 2025 Revised Child Handover Enforcement Regulations Mean?
- 10. FAQ
Real Case: “I got a performance order, the court imposed a KRW 10 million fine, and I even filed for detention, but my ex-spouse still refuses to hand over our child. What should I do?” A client came to us after being unable to see their child for over a year despite having a final court judgment. Atlas Legal filed a concurrent damages lawsuit and obtained periodic damages of KRW 500,000 per month. The day after the judgment was rendered, the other party expressed willingness to voluntarily comply.
Why Was Indirect Enforcement Alone Insufficient?
※ This case is based on an actual case handled by Atlas Legal, with some facts modified for clarity and client confidentiality protected.
In this case, our client A was designated as the parental rights holder and custodian of child C (born 2017) in divorce proceedings. However, ex-spouse B refused to hand over the child even after the judgment became final (October 19, 2023). Despite obtaining a performance order (November 8, 2023), a KRW 10 million administrative fine (April 18, 2024), and filing for detention (July 5, 2024), the situation remained unchanged. According to research by the Judicial Policy Research Institute, only 25.9% of direct enforcement attempts for child handover result in successful completion. Atlas Legal filed a concurrent damages lawsuit under Article 750 of the Korean Civil Code, and the court awarded a lump sum of KRW 20 million plus periodic damages of KRW 500,000 per month. The day after the judgment was rendered (December 12, 2024), B expressed willingness to voluntarily comply, and the detention application was withdrawn. We will now explain each step and strategy in detail.
1. What Can You Do When the Other Party Refuses to Comply with a Child Handover Order?
Key Answer
When a creditor with an enforcement title (final judgment, final adjudication, mediation record, settlement record, etc.) ordering child handover faces the obligor’s non-compliance, the available legal remedies can be broadly categorized into indirect enforcement, direct enforcement, and civil damages claims.
Framework of Enforcement Measures
| Category | Measure | Legal Basis | Effect |
|---|---|---|---|
| Indirect Enforcement | Performance Order | Family Litigation Act Art. 64 | Order to comply within specified period |
| Administrative Fine | Family Litigation Act Art. 67 | Up to KRW 10 million | |
| Detention | Family Litigation Act Art. 68 | Up to 30 days’ confinement | |
| Direct Enforcement | Child Handover Enforcement | Enforcement Regulations | Enforcement officer physically transfers child |
| Damages | Damages Claim | Civil Code Art. 750 | Periodic damages available |
Key Lesson: The most important lesson from this case is that indirect enforcement measures under the Family Litigation Act alone may be insufficient to compel compliance with child handover obligations. Filing a concurrent damages lawsuit to obtain periodic damages can be an effective enforcement measure.
2. Step 1: How Do You Obtain an Enforcement Title (Final Judgment)?
Key Answer
The first step in child handover enforcement is obtaining an enforcement title. An enforcement title is a document that provides the legal basis for compulsory enforcement, such as a final judgment, settlement record, or mediation record.
Case Progress
Our client A filed a lawsuit seeking divorce and custody designation at the Incheon Family Court.
The Court’s Judgment
After deliberation, the court rendered the following judgment:
“B shall hand over C to A.”
B appealed the first instance judgment, but the appeal was dismissed. Since B did not file a further appeal to the Supreme Court, the judgment became final on October 19, 2023, and A obtained an enforcement title ordering child handover.
Practical Note: The enforcement title must explicitly state “hand over the child”. If the judgment only designates parental rights or custody without an explicit handover order, a separate application for a child handover adjudication may be necessary.
3. Step 2: How Do You Apply for a Performance Order?
Legal Basis
Article 64 of the Family Litigation Act (Performance Order) provides:
Case Progress
When B failed to hand over C even after the judgment became final (October 19, 2023), A applied for a performance order at the Incheon Family Court.
- Case Number: Incheon Family Court 2023Jeugi-xxxxx Performance Order
- Decision Date: November 8, 2023
- Service Date: December 2, 2023 (served on B)
The Court’s Decision
“1. The respondent (B) shall, in performance of the obligation under the final judgment in Incheon Family Court Case No. 2021Deuhap-xxxxx Divorce and Custody Designation, hand over child C to the applicant (A) within one month from the date of receiving notice of this performance order.
2. The respondent shall bear the costs of this application.”
The decision also included the following warning:
“If you violate this order without justifiable cause, you may be subject to an administrative fine of up to KRW 10 million, and if you fail to perform the child handover obligation and still do not comply within 30 days after receiving an administrative fine, you may be subject to detention for up to 30 days.”
Service and Effect
The performance order was served on B on December 2, 2023. Therefore, B was obligated to hand over C to A by January 2, 2024.
4. Step 3: How Are Administrative Fines Imposed?
Legal Basis
Article 67 of the Family Litigation Act (Administrative Fine) provides:
Case Progress
B failed to hand over C even after the performance order was served. A applied for an administrative fine at the Incheon Family Court based on the violation of the performance order.
- Case Number: Incheon Family Court 2024Jeongdeu-xxxx Performance Order Violation (Administrative Fine)
- Decision Date: April 18, 2024
- Service Date: April 22, 2024 (served on B)
The Court’s Decision
“The obligor (B) is hereby ordered to pay an administrative fine of KRW 10,000,000.”
Reasoning
“The obligor violated the performance order of this court (2023Jeugi-xxxxx) without justifiable cause, and therefore this application is granted as stated in the disposition.”
Practical Significance: The court imposed the maximum statutory fine of KRW 10 million, indicating that B’s violation of the performance order was clear and serious. This served as important grounds for the subsequent detention application.
5. Step 4: When Can You Apply for Detention?
Legal Basis
Article 68 of the Family Litigation Act (Detention) provides:
2. When a person who received a performance order under Article 64 regarding child handover fails to perform the obligation without justifiable cause within 30 days after receiving an administrative fine pursuant to Article 67.”
Requirements for Detention
The following requirements must be met for a detention application to be granted:
| Requirement | Met in This Case |
|---|---|
| Existence of performance order | ✓ 2023Jeugi-xxxxx |
| Administrative fine imposed | ✓ 2024Jeongdeu-xxxx (KRW 10 million) |
| 30 days elapsed after fine | ✓ 30+ days after April 22, 2024 service |
| Non-compliance without justifiable cause | ✓ B’s continued refusal |
Case Progress
B still refused to hand over C even after receiving the administrative fine decision. When non-compliance continued for more than 30 days after the fine decision was served (April 22, 2024), A applied for detention at the court.
- Case Number: Incheon Family Court 2024Jeongdeu-xxxx Obligation Violation (Detention)
Prayer for Relief
Limitations of Detention
Detention means confining the obligor in a police detention facility or prison, and it is the strongest indirect enforcement measure. However, even with a detention order, if the obligor has hidden the child or entrusted the child to a third party, it may not lead to actual child handover. In this case as well, the detention application alone was insufficient to change B’s attitude.
6. Step 5: Why Is a Damages Lawsuit Effective?
Legal Basis
When a custodial parent is prevented from exercising legitimate parental rights and custody, this constitutes a tort, and damages can be claimed under Article 750 of the Korean Civil Code.
“A person who causes damage to another person by an unlawful act, intentionally or negligently, shall be liable to compensate for such damage.”
Case Progress
A filed a damages lawsuit against B. A also filed a damages claim on behalf of C, acting as C’s legal representative.
The Court’s Judgment
“1. The defendant (B) shall:
a. Pay to plaintiff A KRW 15,000,000 and to plaintiff C KRW 5,000,000, plus delay damages, and
b. Pay to plaintiff A KRW 500,000 per month from the day after service of the complaint until the day plaintiff C is handed over to plaintiff A, or the day plaintiff A loses custody of plaintiff C, or the day plaintiff C reaches the age of majority, whichever comes first.
2. Paragraph 1 is provisionally enforceable.”
Reasoning of the Judgment
In its reasoning, the court stated:
Key Point of the Judgment – Periodic Damages
Notably, the court awarded periodic damages (KRW 500,000 per month). This is designed to compensate for the ongoing psychological harm caused by continued non-compliance with the child handover obligation, and represents a highly exceptional decision in practice.
| Item | Amount |
|---|---|
| Lump-sum damages for A | KRW 15,000,000 |
| Lump-sum damages for C | KRW 5,000,000 |
| Periodic damages for A | KRW 500,000/month (continues until handover) |
Indirect Enforcement Effect of Damages Judgment
Since periodic damages continue to accrue at KRW 500,000 per month as long as the child handover obligation remains unfulfilled, B faced an accumulating economic burden if the child was not handed over. This economic pressure was a crucial factor in B’s decision to voluntarily comply.
Result: The day after the damages judgment was rendered, B contacted A’s side and expressed willingness to voluntarily comply with the child handover obligation. A received the child and withdrew the detention application.
7. How Can You Utilize Direct Enforcement and Criminal Proceedings?
Direct Enforcement (Child Handover Compulsory Enforcement)
In this case, B expressed willingness to voluntarily comply before the direct enforcement stage was reached. However, if indirect enforcement measures had failed to compel compliance, direct enforcement could have been applied as a last resort.
According to research by the Judicial Policy Research Institute, the success rate of direct enforcement for child handover is not high. Among 54 minor child handover enforcement cases filed between 2013 and 2024, the outcomes were as follows:
| Outcome | Number of Cases | Percentage (%) |
|---|---|---|
| Concluded by withdrawal | 26 | 48.1% |
| Enforcement completed | 14 | 25.9% |
| Enforcement impossible | 13 | 24.1% |
| In progress | 1 | 1.9% |
Source: Shim Byung-jun, “Study on Child Handover Enforcement,” Judicial Policy Research Institute, 2025, p. 61.
Among the reasons for enforcement impossibility, child’s refusal to be handed over (53.8%) was the most common. However, under the revised Child Handover Enforcement Regulations (revised in January 2025 with content nearly identical to the Hague Child Return Enforcement Regulations), the child’s refusal alone no longer stops enforcement, and participation of child-related experts has been institutionalized.
Utilizing Criminal Proceedings
In this case, A filed criminal complaints against B and B’s mother D for violations of the Child Welfare Act (child abuse), forgery of private documents by impersonation of status, and use of forged private documents with the police.
Investigation Results
B’s act of creating and using documents while falsely claiming custodial parent status was recognized as subject to criminal punishment. Criminal complaints can strengthen negotiating leverage, and a comprehensive approach combining civil and family proceedings is effective.
8. Which Strategy Should You Choose?
Importance of a Comprehensive Approach
The resolution of this case demonstrates the need for a multi-layered, comprehensive approach.
| Procedure | Role | Outcome in This Case |
|---|---|---|
| Performance Order | Legal demand for compliance | Non-compliance |
| Administrative Fine | Economic sanction to compel compliance | KRW 10 million imposed, non-compliance |
| Detention Application | Psychological pressure through threat of confinement | Filed, non-compliance |
| Damages Lawsuit | Imposition of ongoing economic burden | KRW 500,000/month periodic damages → Voluntary compliance |
| Criminal Complaint | Additional pressure through threat of criminal punishment | Referred for prosecution |
Recommended Step-by-Step Strategy
- Step 1 – Apply for Performance Order: Apply for a performance order immediately after the judgment becomes final to legally demand compliance
- Step 2 – Apply for Administrative Fine: Apply for administrative fine upon violation of performance order
- Step 3 – Apply for Detention: Apply for detention if non-compliance continues for 30 days after the fine
- Step 4 – File Concurrent Damages Lawsuit: File for periodic damages concurrently with indirect enforcement
- Step 5 – Direct Enforcement + Criminal Complaint: Apply for direct enforcement and file criminal complaints as needed
Key Lessons
- Indirect enforcement measures under the Family Litigation Act (performance order, administrative fine, detention) alone may be insufficient to compel compliance with child handover obligations.
- Filing a concurrent damages lawsuit to obtain periodic damages can be an effective enforcement measure.
- Filing concurrent criminal complaints can also strengthen negotiating leverage.
9. What Do the 2025 Revised Child Handover Enforcement Regulations Mean?
Key Answer
In 2024, the Supreme Court of Korea enacted the “Regulations on Enforcement of Child Return Cases under the Hague Convention on International Child Abduction” (Special Rule 2024-1), and from February 2025, the “Regulations on Enforcement of Judgments Ordering Child Handover” (Special Rule 2024-3) applying the same standards to domestic cases came into effect.
Key Revisions
| Before Revision | After Revision |
|---|---|
| Required confirmation of child’s refusal | Obligation to confirm child’s intent deleted |
| Unclear enforcement officer authority | Enforcement officer authority clarified |
| No provisions for expert participation | Participation of child-related experts institutionalized |
Source: Shim Byung-jun, supra, pp. 88-93.
Practical Significance
Previously, enforcement was often stopped when the child refused to be handed over. However, under the revised regulations, the child’s refusal alone no longer stops enforcement, and enforcement can proceed with the assistance of child psychology experts. This represents an improvement toward increasing the effectiveness of enforcement.
Need for Legislative Improvements
The Judicial Policy Research Institute’s research report proposes the following legislative improvements:
- Revision of Family Litigation Act: Establish explicit provisions on minor child handover enforcement; introduce a pre-approval system by the family court before direct enforcement
- Revision of Civil Execution Act: Codify minor child handover enforcement procedures; establish legal basis for enforcement officer authority and expert participation
- Review of criminal punishment provisions: Consider introducing criminal punishment for violation of child handover orders, as in Germany and France
| Country | Sanctions |
|---|---|
| France | Fine of 15,000 euros and 1 year imprisonment for abduction of up to 5 days |
| Germany | Coercive fine (Ordnungsgeld), coercive detention (Ordnungshaft) |
| South Korea | Administrative fine, detention (no criminal punishment provisions) |
Source: Shim Byung-jun, supra, p. 141.
10. FAQ
Atlas Legal provides step-by-step legal remedies including performance orders, administrative fines, detention, direct enforcement, indirect enforcement, and damages lawsuits to ensure the effective enforcement of child handover orders and realize our clients’ rights. As demonstrated in the case introduced in this article, when indirect enforcement alone proves insufficient, we have experience in successfully securing effective enforcement by filing concurrent damages lawsuits for periodic damages. We provide comprehensive and strategic approaches based on our extensive experience in professional consultation and litigation representation for complex family matters including custody disputes and visitation disputes.
※ The case introduced in this article is based on an actual case handled by Atlas Legal, with some facts modified for clarity and client confidentiality protected.