[Chatting] "A husband who wants to adopt his daughter after getting married again...Do I need consent from my ex-husband who lost contact with me?"

□ Broadcast date and time: December 26, 2024 (Wednesday)
□ Host: Attorney Jo In-seop
□ Starter: Attorney Lee Jun-heon

* The text below may differ from the actual broadcast content, so please check the broadcast for more accurate information.

◆ Lawyer Cho In-seop (hereinafter referred to as Cho In-seop): Lawhouse for you. I'm with lawyer Lee Jun-hun. Hello.

◇ Lawyer Lee Jun-heon (hereinafter referred to as Lee Jun-heon): Hello, I'm lawyer Lee Jun-heon from Shinsegae Law Firm.

◆ Jo In-seop: Let's first talk about what kind of concerns you have if you come to the counseling center today.

■ DEAR TORN: I divorced my husband seven years ago. My daughter was five years old then. My husband has been indifferent to me throughout his marriage. After the divorce, he has shown no interest in his daughter. Not long after I got divorced, I called to ask for child support. My ex-husband hung up on me after saying OK, and I've been completely out of touch since then. Even if my daughter wants to see her father, I have no way of contacting her and I don't hear from my ex-husband. After my divorce, I studied alone raising my child and got a social worker certificate and am currently working as a social worker. I met a man while working so hard. The man seemed warm-hearted and especially liked children. I also got along very well with my daughter who came to the welfare center. Eventually, I started dating him and often met up with my daughter as three of us. The boyfriend treated his daughter as if she were his own child. Seeing that made me feel like I wanted to fill my daughter's father's vacancy, and I finally proposed first. After getting married, my husband said he wanted to adopt a daughter and raise her as his real daughter. I looked into adoption and there was general adoption and biological adoption. I'm not sure what the difference is. And I want to break up my relationship with my ex who doesn't look for my daughter and doesn't give me child support. I just want my husband to be the true father of my child and live happily now.

◆ Jo In-seop: Lawyer Jo In-seop's counseling center. It was the story of someone who wanted to adopt a daughter from an ex-husband as a daughter of a remarried husband. There are a few people who want to adopt a child from an ex-husband and ex-wife as the child of a remarried spouse, and for what reason do you usually want this?

◇ Lee Jun-heon: Yes, first of all, since it is not marked as a child in documents such as the Family Relations Register, there may be problems with the social gaze your child receives, such as the gaze. In addition, some are trying to fulfill their responsibilities as parents, and others are considering adoption because of their spouse's trust issues.

◆ Cho In-seop: In your case, you were looking into adoption and sent it to me because you were curious about the difference between general adoption and biological adoption. What is the difference between the two adoption methods?

◇ Lee Jun-heon: Yes, first of all, the adoption system was newly established in 2005 in consideration of the welfare of adopted children. The biggest difference from regular adoption is whether the relationship with the biological parents is cut off. Unlike general adoption, biological adoption results in the adoption of the adopted child being considered a birth during marriage, and the kinship relationship ends before adoption. In general adoption, which existed even before the introduction of the biological adoption system, kinship was not terminated before adoption. And because of the adoption of biological adoptions, the adoptions sometimes follow the family name of their adoptive parents.

◆ Cho In-seop: Yeah, so when we talk about adoption, the relationship between the adoptive parent and the original biological parent is not broken, but in the case of biological adoption, the relationship between the adopted parent and the child is completely formed and the relationship with the biological parent is completely cut off. Then, if general adoption and biological adoption are so different in effect, I think the requirements for adoption will be a little different.

◇ Yes, that's right. Biological adoption, unlike general adoption, has very strict requirements. You can see it more clearly when compared to regular adoption. First of all, general adoption is possible for both adult and minor adoption. Adoption of biological children is only allowed for minor adoptions. And general adoption does not consider the length of the adoptive parent's marriage, but biological adoption must be jointly adopted by a couple who have been married for more than three years, and even if the child to be biological is a biological child of either couple, the couple must be married for more than a year. In addition, general adoption can be established if the intentions of the adoptive parents are consistent, and if the family court considers the parenting situation, the motive of the adoption, the ability of the adoptive parent, and other circumstances, the adoption may not be accepted.

◆ Cho In-seop: It means you're making a very strict judgment.

◇ Yes, that's right. The relationship between the child to be adopted and the biological parents ends, and if the adoptive parents are unfit as a caregiver, it will harm the welfare of the child, so the family court will determine whether it is appropriate for the adoption of biological children.

◆ Cho In-seop: Yes, now they say that they need the consent of their biological parents to adopt, but in the case of the sender, it seems that they can hardly contact their ex-husband. So how do I handle the adoption process if I don't get my ex-husband's consent?

◇ Lee Jun-heon: For both general adoption and biological adoption, biological parents must agree to adopt. But there is a reason for an exception here. Until 2012, both biological adoption and existing general adoption stipulated exceptions for cases in which parental rights were lost or death due to other reasons could not be consented. With the revision of the Civil Act in 2012, the law added exceptions that biological adoption is possible without the consent of biological parents if they do not meet their obligations to support their children for more than three years, or if new parents abuse or abandon their children or significantly harm their welfare.

◆ Cho In-seop: Yes, so if we don't negotiate interviews for years and don't give child support like this story, can we just adopt them without consent in this case?

◇ Lee Jun-heon: I don't think that's necessarily the case. Although it is a lower court case, the court interpreted the exceptional reason for not having to obtain consent for adoption of biological children. According to this precedent, one of many reasons is that if a parent who does not raise a child for more than three years does not pay child support regardless of the time when the parent's divorce caused the child to be raised and the age of the child, interpreting it to immediately deprive the parent of the child's right to consent to adopt the child could infringe on the basic rights of the parent-child by overly easing the requirements for adoption. It is said that it is reasonable to interpret it as a limited case of not fulfilling the obligation to support the child for more than three years due to reasons responsible for the newborn parents after the conversion.

◆ Cho In-seop: Your case is quite difficult to say. What's the simple explanation?

◇ Lee Jun-heon: Yes, if you don't pay child support or are not negotiating for an interview, you can adopt your child without consent immediately, but after the family court's judgment or the parties have consulted, the details of child support or interview negotiations have been converted into specific claims.

◆ Cho In-seop: Yes, so if you have an agreement or a court ruling, or if you don't fulfill any obligations to your child for more than three years after this, I think you can adopt your child without parental consent.So how can you adopt your biological child now?

◇ Lee Jun-heon: Yes, first of all, since your daughter is your biological child, you must meet the requirement of one year after marriage. And if you ask the other person for consent after a year, but you don't know where the other person is, you should first request for adoption of your biological child due to the unknown location, and if the other person is in touch and refuses to agree to adopt your biological child, you should first request child support or interview negotiation and then adopt your biological child again later if the other person does not fulfill it.

◆ Cho In-seop: And if it doesn't fall under these exceptions, it's okay to relax the requirements and consider general adoption, right? To summarize the contents of the consultation so far, the adoption of biological children is cut off from the relationship with the biological parents, and the adopted children are considered to be born during marriage. However, general adoption does not end kinship. That's why I told you that the requirements for biological adoption are now strict. In your case, since you are the biological mother of your child, you can ask your ex-husband for consent after a year of marriage after remarrying and file a claim for biological adoption. However, I told him that it would be okay to claim for adoption by claiming these exceptions where the ex-husband's whereabouts are unknown or exceptions for not properly fulfilling the obligation to support the child. So far, I've been with lawyer Lee Jun-hun of Shinsegae Law Firm.

◇ Thank you.

◆ Cho In-seop: You can listen to Cho In-seop's counseling center again on YouTube and on the website. If you have any questions or suggestions, please leave a message on the consultation board on the website.