Complicated procedures, lack of international agreements, and language barriers make an already painful process even more onerous for foreigners in Taiwan.
Every divorcee has a unique tale to tell. Scott Sommers’ story, which includes a lengthy custody battle with his Taiwanese ex-wife, is one of anguish and frustration. It is never easy to separate from a lover and arrange for the care of a child, but when you add Taiwan’s byzantine judicial system and overworked monolingual judges, it can be a nightmare for foreign nationals, the Canadian argues.
Sommers’ greatest fear is that he will never see his 10-year-old daughter again. He sued for joint custody during his divorce seven years ago, but in the end, the judge appointed his ex-wife as the sole custodian. Sommers says he was frustrated with the judge’s argument that he would be unable to care for his daughter effectively because he didn’t speak Chinese. Afterward, he says, his wife sometimes ignored the court-ordered visitation arrangements.
Real panic set in three years ago, when Sommers discovered that his ex-wife had a new boyfriend in the U.S. whom she planned to marry. The ex took their daughter to the U.S. for six months, violating a Taiwanese court order that Sommers see his daughter every other weekend. Sommers tried to enforce his visitation rights in court, fearing that she might settle in the U.S. for good, but the court accepted the ex-wife’s explanation that she was there only on holiday. Sommers then unsuccessfully sued again for joint custody.
Sommers says he wants more people to know how difficult it can be if a foreigner and Taiwanese divorce and children are involved. Even finding an English-speaking lawyer was grueling, he says.
“I would say in general, the court system is opaque, complicated, and difficult to navigate,” says Sommers. “It is virtually impossible if you don’t speak Chinese. All I want to do is be a good father.”
Although custody dispute settlements in Taiwan are complicated, related laws have come a long way since they were first drawn in 1930 as part of the Civil Code, when the government of the Republic of China (ROC) was still situated on the mainland. The original laws were influenced by traditional Chinese culture, as well as contemporaneous Swiss and German laws, and built on patriarchal principles: in general, fathers were to take custody of children, and mothers were expected to defer to fathers’ decisions about their offspring.
These laws remained in place after the ROC government moved to Taiwan in 1949 and throughout the martial law period that lasted until 1987. However, Taiwanese feminists in the 1980s and 1990s believed the laws violated people’s constitutional right to equality, and pressured the Legislative Yuan to request an interpretation from Taiwan’s Constitutional Court, also known as the Council of Grand Justices. In September 1994, the Council offered what is known as “Interpretation No. 365,” asserting that the laws did indeed violate equality rights.
Taiwan’s family laws were consequently amended in 1996. The new regulations, which lawyers say are generally aligned with American and European legislation, still apply today. During the redrafting process, a few sexist articles from the 1930s were repealed, according to the Garden of Hope, a non-government organization that helps disadvantaged women. For example, one antiquated article banned mothers with “debauched” behavior from claiming any children as their own.
Besides providing for improved equality, the new laws for the first time treated Taiwanese children as people with rights rather than the property of their fathers. Particularly significant was the addition of Article 1055-1 as a supplemental provision in the ROC Civil Code. The article stipulates that the best interests of the child should be a mandatory and guiding consideration for the court when reaching a final custody decision. Garden of Hope Deputy CEO Wang Shu-fen notes that the United Nations Convention on the Rights of the Child, which was adopted in 1989, had an enormous influence on these developments.
Relying on benevolence
Heather Hsiao, a partner at the law firm Eiger, notes that divorce still carries a stigma in Taiwan. “Even now, divorce is still seen as shameful for the whole family, not just the married individuals,” she says.
Regardless, Taiwan’s crude divorce rate (the annual number of divorces per 1,000 people) is close to that of the U.S. In 2021, 47,887 couples got divorced in Taiwan, making for a crude divorce rate of 2.04, according to Ministry of Interior (MOI) data. By contrast, the crude divorce rate in the U.S. for 2020 was 2.3, according to the U.S. National Center for Health Statistics.
But despite their similar divorce rates, Taiwan and U.S. custody systems are extremely different. Parents in Taiwan who have mutually agreed to divorce and independently settled on custody issues can report their new situation to the Household Registry under the MOI, and do not need the court to approve or seal their agreement. In contrast, couples that divorce amicably in countries like the U.S and Germany still need to file their divorce with a court – a process that takes at least a year.
In a written response to TOPICS, the Ministry of Justice explained that if parents cannot agree on custody arrangements, the court will choose the parent it considers best able to protect the child’s interests. If both parents are deemed unsuitable, custody may be given to a guardian. The non-custodial parent is normally awarded visitation rights, provided this does not interfere with the child’s interests, and the court determines the schedule and format of the meetings. The court also has the power to change visitation rights if it believes visitations harm the child.
Divorces go through a Taiwanese court only if a couple cannot reach an agreement on their own. Compared with Western countries, says Michael Werner, a senior associate with Eiger, an amicable divorce is incredibly easy in Taiwan: the couple can simply visit the Household Registry and file their paperwork. Conversely, he says, warring couples that take the matter to court face a more complex process than in other places. According to Garden of Hope’s Wang, 85% of divorces involving custody arrangements are filed with the Household Registry, while 15% are settled in court.
Hsiao of Eiger notes that in practice, the child’s “best interests” remains a highly abstract idea, and judges have their own ways of dealing with the concept. “The workload of the judge is very heavy – sometimes what the judge sees is very limited, just a one-sided story,” he says. Hsiao also notes that judges tend to be conservative and push for reconciliation by the couples if at all possible.
The court will first initiate formal settlement negotiations under the theoretically impartial eye of a court mediator, according to information provided to TOPICS by the Pamir Law Group. If a settlement still cannot be reached, the court will listen to the parents’ and child’s concerns and preferences, and take into account other evidence such as notes from visiting social workers, to arrive at a custody decision that is most beneficial to the child. The resulting court order is then automatically uploaded into the Household Registry.
Statistics show that Taiwanese courts prefer giving custody to mothers and tend not to favor joint custody. Hsiao says this is partly because overworked judges wish to avoid having to handle all the disputes arising from the latter arrangement.
According to data from the Judicial Yuan, district courts in 2021 handled 1,107 custody agreements, of which 23% saw custody granted to the father and 61% to the mother, with the remaining 16% involving joint custody. These proportions have been a trend for the last five years. Hsu Tsui-ling, a family court judge at the Hsinchu District Court, says most of the women she sees prefer to take their cases to court because they believe they have a better chance of winning custody.
However, MOI data covering all custody arrangements in Taiwan – both court-ordered and ones decided on privately – paint an entirely different picture. Household Registry cases suggest that many Taiwanese women appear prepared to relinquish custody of their children to the male spouse.
Before 2019, most parents with sole custody of their children were men. For example, 40% of divorced men got custody of their kids in 2018, compared to 38% of women, while 22% of divorces resulted in joint custody, according to MOI data. The gender imbalance leveled in 2019, when it was evenly split between mothers and fathers at 38%, after which mothers became the dominant group of custodians. In 2021, 35% of custodians were men, 38% women, and 27% of cases involved joint custody arrangements.
Taiwanese interviewees offered various explanations for why such a big group of mothers seemed willing to grant the father custody. Lee Hui-chuan, a senior director at the Child Welfare League Foundation, notes that tradition dictates that children should be cared for by the father’s family. This means that a couple in a relationship in which both partners work may think that the father’s parents will likely agree to help raise the kids. The couple may not feel as certain that the mother’s parents would be willing to take on the same responsibility.
Also, Lee says, women might think they have a smaller chance of getting remarried if they appear saddled with kids. Other activists note that there may be darker factors at play, such as coercion from the man or threats of domestic violence.
Wang and Lee also regard mediation outside of court as generally better for improving family relations and reaching a suitable custody agreement, since court proceedings inevitably increase tension. “In legal situations, you need to have a winner – it is very black-and-white,” Wang notes.
Both Garden of Hope’s Wang and Child Welfare League Foundation’s Lee want to strengthen the role of non-government organizations that offer mediation services outside the court system. They hope it would help make divorcees who prefer to file with the MOI’s Household Registry more aware of the concept of the child’s best interest, and not just reach a custody agreement that is convenient for the parents.
Common problems related to court-ordered custody cases involve the division of finances or child support payment, as the main financial provider for the child is not necessarily the custodian. Hsiao of Eiger says she often sees one parent refusing to follow the court-ordered visitation plan. For example, a dad might think he is entitled to see his child because it is Father’s Day, but the mother who has custody might counter that that day is not part of the court-ordered schedule.
Fearing flight risks
While courts have a duty to enforce execution of their orders, court-ordered custody and visitation agreements are difficult to enforce in Taiwan, making them virtually toothless, Hsiao says. She estimates that annually there are over 17,000 family cases to be overseen by around 140 district court judges that take on family law cases, making it difficult for judges to keep track. Filing an injunction against a delinquent parent who does not stick to the court orders is also a lengthy, bureaucratic process.
“From a legal standpoint, a parent who removes a child from the other parent without the other parent’s consent may violate article 241 of the ROC Criminal Code – a crime which bears a sentence of imprisonment for one to seven years,” notes Pamir, adding that this also applies to non-Taiwanese who take their kids overseas without a Taiwanese parent’s consent.
But, adds Pamir, “in practice, a prosecutor is more likely to decide not to prosecute such a case, since it is widely accepted not to be appropriate to use criminal charges to intervene in family-law-related issues.”
The complexity increases when one spouse is a foreigner and one is Taiwanese. Pamir notes that properly determining which country’s laws should govern the situation of a child whose parents are of two different nationalities is a common and complicated legal area anywhere in the world.
Werner of Eiger notes that fighting a custody battle through the district, high and supreme courts in Taiwan is expensive. Lawyer’s fees may total at least NT$2-3 million. At the same time, “the pattern is that the judges tend to be more favorable to the Taiwan party in divorce cases,” Werner notes. “As soon as you get a foreign parent, the outcome gets more unpredictable.”
Eiger’s Hsiao also notes that in her experience, judges have a tendency not to rule in favor of the child living long-term in a foreign country with a foreign parent. Their main concern appears to be a loss of control of what happens to the child once they leave the country.
She says that judges typically tend to award custody to the Taiwanese parent and let the foreign parent abroad have the children during summer if they are younger than 12. For children older than 12, the judge often respects the child’s wishes regarding where to live. To the disadvantage of foreign parents, judges tend to assume that unlike the Taiwanese spouse, they lack relatives and a support network in Taiwan.
Pamir notes that a common issue is that one parent may take the child out of the country immediately after the divorce without the other parent’s consent or opportunity to exercise custody. Taiwan’s diplomatic isolation means that it is not party to the Hague Abduction Convention, a multilateral treaty that provides a speedy way to return a child who has been abducted by a parent from one country to another. However, Taiwan has adopted provisions of the convention into its domestic laws and will follow them when cooperating with other signatories.
But whether Taiwan and other nations will recognize each other’s rulings is not always clear. For example, says Werner, Germany recognizes Taiwanese rulings on a case-by-case basis. If the German parent wants to sue their former Taiwanese partner living in Taiwan, they will need to follow Taiwanese legal protocols and serve notice to their Taiwanese counterpart. Once a judgment is made in Taiwan, it is recognized in Germany. By contrast, Werner adds, Austria and Taiwan do not mutually recognize each other’s judgments.
Custody battles can be even tougher for Southeast Asian and Chinese spouses in Taiwan, most of whom are women. Garden of Hope’s Wang notes that if Southeast Asian spouses are awarded custody, they are still forced to return home once the child is 18 unless they have a Taiwanese passport or permanent residency. If they are not granted custody, they will likely be deported if they do not have permanent residency or citizenship. These parents are more likely to be awarded custody if they have a job or other economic resources, Wang says.
Lee says Southeast Asian and Chinese wives are often unfamiliar with Taiwanese law, and some simply abscond back home with their children when they leave their partner. Often, the Taiwanese father has never met his in-laws and may find it very difficult to locate the children. She says some Taiwanese dads have spent a fortune on fruitless searches, often going through dishonest intermediaries who rip them off. Others “just give up.”