Displaying items by tag: Custody of a Child in Indonesia

Thursday, 21 March 2019 09:07

Child Custody in a Divorce Case in Indonesia

Child custody in Indonesia is one of the consequences of a divorce between a husband and a wife, Divorce may be the solution for both of you. It may be your best way out, but the law suggets it can only be used as a last resort. It means both of you should work hard to keep your marrriage intact. In Indonesia, you should have enough reason to dissolve your marriage. You just can’t say: “I have enough of you! Let’s get divorce!” They won’t allow you to get divorce on this ground. Article 39 (2) of the Marriage Law stipulated that in order to get a divorce, both husband and wife must have enough reason that they will not be able to live in harmony.

There are legal grounds of filing for divorce that every divorce lawyer in Indonesia has to advise his clients with, and they have been regulated in the Marriage Law, which are, in the event one of the parties:

  1. has committed adultery, is an alcoholic, is addicted to drugs, is a gambler or exhibits other vices which are difficult to cure;
  2. has left the other spouse for two consecutive years, without consent and without legitimate reasons or the absence of reasons beyond his control;
  3. has been sentenced to imprisonment for five (5) consecutive years or a longer period;
  4. has resorted to cruelty or severe ill treatment, endangering the life of the other spouse;
  5. has developed a disability or disease, preventing from fulfilling the duties of husband or wife; or
  6. has irreconcilable differences.

For couples married in Moslem ceremony, Article 166 of Islamic Compilation Law added two more legal ground to get divorce. They are:  a. You may get divorve in the event a husband broke his taklik talak. It’s a marriage vow soon after the Moslem couples performed the marriage. If you forget about it, you may want to check the back page of your marriage book; b. Apostate.  In the event your spouse convert back to his/her previous belief, other than Islam. The above legal grounds are optional. I mean, your divorce case doesn’t have to meet all of the legal grounds. You just have to include ome of them, and supply two witnesses to take the stand at the court room. 

As for the child custody, the decision follows after the marriage has been dissolved. The custody of a child under the age of 12 belongs to the mother. Article 105 of Islamic Compilation Law imposed that a child aged 12 (twelve) has a freedom to choose between its mother or father. They tend to give the custody to the mother because they think women is the best figure to nurture the child. They are more compassionate than men. They think women can do it better than men. In short, they think the Islamic Compilation Law has maternal preference. It's also has sole custody principle that allow one parent to be a custody holder, and the other parent is a non-custody parent. But, in the field of practice those things are not always happen. They don't always do their jobs. They can be either mentally unstable, committing adultery, leaving the child at home during night time to meet friends, hang out and partying all night, or even jeopardizing the child's well-being. Those are the circumstances where you as the father may take over the custody of your child. You can’t just say that you’re financially better than your wife, and you think you deserve the custody. Our Marriage Law considered husband is a bread maker in the family. You have the obligation to support your children. This is the universal value every where, I supposed.

The ultimate consideration of having a child custody is for the best interests of the child. It's imposed by the 2002 Child Protection Law. The judges assess and measure your ability in providing what’s best for your child. Factors included in the assessments are physical and mental health, intellectuality, independence, and utmost good faith in allowing his/her ex-spouse to have parenting and visitation. In another words, you still need to talk to you ex-spouse even though you are no longer married to each other. This is for the best interests of the child. The one that meets the requirements is the most eligible to serve as custody holder of the child.

I would like to bring your attention to the court verdict number 110K/AG/2007 issued by the Supreme Court in December 2007. The holding from the court was, among others, the ultimate consideration of having child custody (Hadhanah in Arabic term) is for the best interests of the child, not merely the most normatively entitled to. The court further stipulated that even though the child was only 7 (seven) years, and the mother frequently travelling overseas and leave the child all alone by herself, while the father actually always be there for the child giving her steady and stable life, so therefore they found the father was entitled to the custody of the child. This is one of the most brilliant court's products in Indonesia, and considered as "jeopardizing" the maternal preference since the Islamic Compilation Law enacted in 1991. But I mean, apart from that, you know, you can really lose your rights in getting child custody, even though the law prefers you due to gender preference. As parents, I believe we must put ourselves behind the children's interests and put them as our priority in life. I am sure we're all love our children so very much. 

 

Our thanks to Asep Wijaya, Managing Director of Wijaya & Co for sharing this information with us!

Child born out of wedlock in Indonesia may include its biological father on its birth certificate. The only way to do this is by getting the father acknowledge the child. They must support the claim with a DNA test, and backed by at least two witnesses. Furthermore, the legalization of a child must be court-approved. Otherwise, the civil law relationship between the father and his child will not be established. It is very important because this is where it all begins. 

The civil law relationship between the father and his child begins with a birth certificate. When you see his name on his child’s birth certificate, you will see they have something between them. This the truth lies in the amended Article 43 (1) of the Marriage Law. The legal protection given by the Constitutional Court with its breakthrough verdict. They are giving the child an identity printed on its birth certificate with full names of mom and dad. This is the real truth. You get the legal protection for the child in the form of a birth certificate. Nothing less, nothing more. Therefore, you need to do something about it for the sake of your child's future. 

Originally, the Article 43 (1) was not allow you to include the father’s name on the child’s birth certificate. It only recognize the relationship between the child and its biological mother. Some thinks that it’s not fair. Some thinks that it’s legally bastardizing the child. Other thinks we need to allow them to use both parents’ name on the child’s birth certificate, even though the marriage of the parents is still illegitimate. So, the amendment of this article is also about giving the child what they deserve and not to punish them for something what their parents did. The Civil Code furthermore imposed that as long as the child was acknowledged by the father and the mother, he/she may inherit from the parents. But the child may only have legal relationship with the person that acknowledge it. No further relationship with the rest of the family. In general, if a parent have legitimate children, a wife or a husband, the out of wedlock child entitles to only 1/3 of the legitimate child's share. 

As for Moslem couples, you need to dig this a little deeper as the amended Article 43 (1) will not create other consequences such as inheritance, and nasab relationship, as they thought they will have those two in the area of civil law. In Islamic Laws, if you’re conceiving a child outside of religious marriage, even though the father acknowledge it, the nasab relationship will not be established, even the father voluntarily acknowledge his child. Nasab relationship is parental relationship between the father and his child, created only through legitimate marriage betwen the father and the child's mother. Without it, there won’t be a nasab even the father acknowledges his child. This one of the inconvenient truths retrieved from the child legalization proceeding under the amended Article 43 (1) of the Marriage Certificate. 

If you're a Moslem, and you have an out of wedlock child, you need to refer further to the Islamic Compilation Law. This special civil law for Moslem couples governing activities like marriages, divorces, inheritances, and other issues related to family law. As for Non-moslem couples, you need to refer further to the Civil Code. According to those laws, both the Islamic Compilation Law, and the Civil Code, they imposed that child born out of wedlock can't inherit from the father, even though he acknowledges his child. This is a further legal consequences of child legalization as amended by the Article 43 (1). It seems to me, the amendment by the Constitutional Court was only to provide the child with a birth certificate with full parents' name. The ruling stops there. It does not solve any further complication regarding the issues related to the status of being an out of wedlock child. As parents of child born out of wedlock, you must not allow this to happen to you child. You need to do something. I would suggest you draw-up a last will and testament. This is the only possible solution to protect your child from the legal limbo regarding this issue in Indonesia

 

Our thanks to Asep Wijaya, Managing Director of Wijaya & Co for sharing this information with us!

A child is born out of wedlock when its mother was pregnant by a man without any legal marriage in Indonesia. It’s a simple definition indeed, but we have broader definitions depending on the situation. It’s according to Civil Law. The child was born and the marriage of its parents was not properly registered. The child was born out of the parents and they never married before, both religious and civil marriage. The definition of child born out of wedlock also include the child born to parents who aren’t legally marry to each other. It means, they are still legally attached to their spouses. In another words, the child was born out of adulterous relationship. On the other hand, the 1974 Marriage Law defined that a legitimate child is a child was born into the legal marriage of the parents, or as a result of the legal marriage of its parents. The marriage of the parents is legal and registered. They performed the marriage legally proper according to the religion and law procedures. So, basically the out of wedlock child was born when the legality of its parents’ marriage is still in question.

This is very interesting and pretty challenging issues, as Indonesia’s Constitutional Court amended the ruling in 1974 Marriage Law that the child has legal relationship with the mother and its biological father, even though their marriage is still in question. They are establishing a civil law relationship between the child and its alleged father, through a DNA test, while on the other hand, the validity of the marriage is fuzzy enough to call it legal. The idea was to give legal protection to the children born out of wedlock, and that they need to make sure that the children can access its rights. Know all men by these presents, in Indonesia when a man got a woman pregnant, he is legally related to the child, regardless the marriage do exist or not. The last thing they want is to punish the child for something that the parents did. 

The application for bringing the legality to the child must be made by either parent, if not by both of them, to the court of law. According to Article 44 (2) of the Marriage Law, the court has the authority to determine the legality of the child. This proceeding depends on the father’s acknowledgment of the child, because it creates the relationship between the father and the child legally. The Civil Code in Article 280 imposed that situation. Legal consequences are being established, between the father and child, such as child support, guardianship, using of father’s family name, and inheritance. 

The implementation of this proceeding is to issue a birth certificate for the child, with complete names of the mother and the alleged father. According to the Article 55 of the Marriage Law, the birth certificate is the authentic proof of the child’s origin. Child born out of wedlock can only have the mother’s name printed on its birth certificate. The name of the father can only be printed as well if he acknowledges the child. Article 284 of Civil Code imposed that the biological mother must approve such acknowledgment. The proceeding must have her consent. So, yes, it takes two to tango. 

There is one thing you should bear in mind. This is the legalization of the child that born out of legal marriage. This is NOT the legalization of the marriage itself. It’s quite challenging because you must meet our statutory requirements as imposed by the Marriage Law and its implementing regulations. Basically, the laws in Indonesia based on monogamous marriage. You need to legally free to marry to legalize your marriage. Please call me or email should you would like to discuss the issues any further. You can reach me here: http://www.wijayaco.com/contact

My name is Asep Wijaya. Thank you for reading my posts.

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Our thanks to Asep Wijaya, Managing Director of Wijaya & Co for sharing this information with us!
 

Disclaimer:

The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.

 
 

Child born out of wedlock in Indonesia doesn’t have its father’s name printed on the birth certificate. He/she can only have relationship with its mother and her mother’s family. The child doesn’t have any relationship with the biological father. Not until you as the father acknowledges it or legalizes it into his marriage to the child ‘s mother. You must support your acknowledgment with a DNA test, and the two witnesses taking the stand at the court of law. This proceeding is conducted in order to prove blood relationship between the child and the father. It will then creates legal relationship between the two of them. This is the essence of the rule in Article 43 (1) of the Marriage Law as amended by the Constitutional Court number 46/PUU-VIII/2010 dated Feb. 17, 2012.  

Furthermore, the amended Article 43 (1) stipulates as follow: "The child born out of wedlock has legal relationship with the biological mother and her family, and has legal relationship with the alleged father proven with scientific evidence and/or other evidence according to the laws that they have blood relationship, including civil law relationship with the father's family."

You don’t need to fix the legality of the marriage in order to acknowledge the child born out of wedlock. This is about getting a child legalized. It’s about getting to know the child’s origin by having the father and the mother’s names printed on the child’s birth certificate. It’s not about getting a marriage legalization. Those are two different things. When you as the father acknowledges the child, the legal relationship between the child and the father will be created as stipulated by Article 280 of Civil Code.  

The legalization of child born out of wedlock is to give legal protection to all the children in this matter. The law must protect the children and make sure they get what they deserve, even though the marriage of the parents is still in question. The protection must be implemented in the form of birth certificate with all the parents’ names printed on it. Article 55 of Marriage Law stipulates that the origin of a child can only be supplied by authentic birth certificate. This is the basic rights that the child must be able to have. The certificate is very useful when the child is applying for the school, passport for travelling, and other basic rights for her/his nurturing needs.

The birth certificate of an out of wedlock child does not include the father's name. Only name of the mother. It says something like is: "Premarital son/daughter of a woman named [insert mother's name]." It's because when the child was born, it only related to the mother and her family legally. When a birth certificate does not include complete names of the parents, it does not tell you the origin of the child. It doesn't comply with Article 55 (1). In order to include the name of the father on the birth certificate, a father must acknowledge the child with the consent from the biological mother. Without it, the court may not be able to approve the legalization. So, in order to legalize your child born out of wedlock, you need to present a case with complete evidence. Otherwise, they may reject the case and your child remain illegitimate child for good. As the father, you won’t be able to have access to the child legally. You can’t have joint custody of the child. Many cases like this where fathers lost cases in the court fighting for the custody of their children. You have to be careful, because you only have one bite of the apple. You better make it works.

I am Asep Wijaya. Thank you for reading.

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Our thanks to Asep Wijaya, Managing Director of Wijaya & Co for sharing this information with us!
 

Disclaimer:

The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.

Child born out of wedlock in Indonesia has some key issues in its proceedings. If you have a child born out of legitimate marriage, you should know these and make sure you don't get conflicted by our legal system. First, we have now amended Article 43 (1) of the Marriage Law stipulates that child born out of wedlock not only has civil relationship with its mother and her family, but the child also have civil relationship with the biological father, and his family as well.

The starting point to draw a fine line between the child and the father, is by having the father to acknowledge the child. According to the Article 280 of Civil Code, the acknowledgment is to create the civil law relationship with the child, and its father or mother. After the acknowledgement, you may draw anything between the two of them. You may establish a child support, parenting and visitation. The child is also entitled to use your family name. He/she might be able to claim as your heir in the inheritance matters.

Furthermore, the amended Article 43 (1) imposed that a claim made in order to acknowledge the child and his father must be supported with a scientific evidence, like DNA test, as well as two witness that willing to take a stand at the court of law. The acknowledgment of an out of wedlock child must be approved by the court of law. The court verdict must shows the origin of the child, the acknowledgment made by the father, and the consent by the biological mother. This is an integrated paperworks. 

The idea to come-up with the amended Article 43 (1) is to provide legal protection for the child born out of wedlock. It is the duty of the state to issue a document regarding the origin of the child with full names of the parents and printed on a birth certificate. 

My name is Asep Wijaya. Thank you for reading my posts.

****

Our thanks to Asep Wijaya, Managing Director of Wijaya & Co for sharing this information with us!
 

Disclaimer:

The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.

Guardianship of a child in Indonesia is a challenging issues. Not only this is the most important part in family and matrimonial law practice, such as adoption cases, divorce cases, and custody disputes. It also plays substantial role in general civil law, such as how a judge determine a child's guardian in representing him/her in all of her legal affairs. Article 47 of 1974 Marriage Law stipulated that children under 18 years old or have never been married, are under their parent’s authority. The parent represent them in and outside of the court room. The parental authority may be revoked by the court or may also be removed voluntarily and assigned to other individual. Parental authority is the term set-out in the laws in Indonesia. It also known as Child Custody. Different terms but discussing the same thing in common. The terms have a very broad meaning: representing the child inside or outside of the court room. This include the whole legal matters involving the child's life. 

When parent is no longer in the position to perform his/her job, other people, preferably family members may replace them as a guardian of the child. The guardianship of the child may voluntarily appointed by the parent. The person may accept it or he/she may refuse it. Being a parent indeed is not an easy job. So, you're excused if you think you won't be able to do it properly. Child Protection Law of 2002 stipulates that in the event of a parent is absent, or unknown, or for some reasons unable to perform his/her duty and responsibility, the job is transferable to other family member. A guardian may be appointed to do the job. They must be same blood family up to three degrees upline, such as grand father, grand mother. They can also be three level down line.

The laws further imposed how a guardian must meet criterias. He/she must at least 18 years of age, physically and emotionally healthy, fair, honest and having a good behavior. Other family members must also be supply their opinions about how he/she may be able to perform his/her duty as the child’s guardian. They also have the responsibility to choose the right guardian because everybody knows everybody. This is the beauty of family emotional bonding.

At Wijaya & Co, we handled cases like this: transferring the children guardianship from their parents to their grand mother. Both of them are busy with their works and the grand mother lives in a different country. The guardianship order serves as an immigration clearance as well that allow the grand mother to have parental rights in regards to the furnishing of immigration paperworks. She represents the children and have the legal power to decide on the parent’s behalf, as if having someone to trust to take care of your children, legally.

I am Asep Wijaya. Thank you for reading my posts.

****

Our thanks to Asep Wijaya, Managing Director of Wijaya & Co for sharing this information with us!
 

Disclaimer:

The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.

Monday, 05 March 2018 10:33

Child Born Out of Wedlock in Indonesia

Child born out of wedlock in Indonesia has legal relationship with its biological mother and her family only. This principle is reflected on the child's birth certificate. It means the birth certificate of a child born out of legal wedlock cannot include the name of its father. That was ancient regulation before we have a breakthrough from the Constitutional Court. Nowadays, children born out of wedlock has legal relationship with the acclaimed biological father. The claims must be supported with the scientific evidence such as DNA test, among others.

Article 43 (1) of 1974 Marriage Law has been recently amended to include the biological father as parent of the child born out of wedlock. This ruling was meant to protect the child’s basic right. Just because we recognize the legal relationship between the father and his child born out of wedlock, it doesn’t mean to attack the legal marriage and its legitimate children. The relationship does not automatically entitles the child to the legal rights as if it was born into the legal marriage. Nevertheless, it may be the basis to create "the bridge" between the acclaimed father and the child in regard to the child's rights in claiming child supports, education, inheritance, etc. Well, at least you need to start somewhere, right? 

The legal proceedings under the amended Article 43 (1) of the Marriage Law is very useful for the children born outside of the legal marriage. This is because they can have a birth certificate with complete names of the parents. Both names of the father and mother printed on its birth certificate. This is a milestone to a new world of opportunities for them. This is similar to child legalization proceeding. Without the proceeding, the child may entitle to a birth certificate with mother’s name only. They said our legal system legally bastardizing them. They won't be, as long as you as the father would like to recognize them. It's your flesh and blood anyway. So, give them what they need: the birth certificate with the full names of the parents.

The best thing about this, it does not have to come with the marriage of the parents. Do I mention something about tying the know at some point? No. It's up to you! Sometimes, messy things between the two of you doesn't have to make your "champ" suffers. All you need is to talk to each other, sit down in the same table with your Indonesian lawyer and get the ball rolling. Well, I am not the guy who against the spiritual and emotional bonds like they do have in those married couples. What's important is the father's acknowledgment. It does really matters to your child. What a simplified legal system, huh? We make things simple. It's up to you to keep it simple, or the otherwise. All you have to do is to supply the evidence. This is the most convenient way, considering the absence of your marriage certificate.

Well, let me completely be honest with you. I understand that you may not be able to supply the marriage certificate due to various reasons. You did perform the marriage, but it may not performed properly according to the marriage regulation. It's called unregistered marriage. In Indonesia, some called it "Nikah Siri." Or, you never get marry before and the child conceived out of the adulterous relationship. A marriage is one thing, and a child is another thing. I am not going to cast a stone at you. You don't have to do it if the marriage is not a scenario. So, you can do this proceeding under the Article 43 (1) of the Marriage Law without getting marry first.

My name is Asep Wijaya. Thank you for reading my posts.

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Our thanks to Asep Wijaya, Managing Director of Wijaya & Co for sharing this information with us!
 

Disclaimer:

The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.

Monday, 26 February 2018 10:22

Child Custody & Maintenance in Indonesia

Custody and maintenance of children, like other family matters in Indonesia such as divorce, and inheritance; is governed by religious affiliation of the respective spouses. Some of you may find it absurd, but this relates to the belief that religion plays an important role in the family environment.

Child Custody for Moslem

The questions regarding who is entitled to custody or maintenance of children in the event of a divorce between a husband and wife who are Moslems, are subject to the provisions of the Compilation of Islamic Law, and also subject to the principles contained in the Religion of Islam. In the event of divorce, the maintenance of children who have not yet mumayyiz(under 12 year old) is their mother’s. In the case of mothers has died, then the position of woman as the holder of the rights can be replaced by the following persons: a). the women in a straight line upward from the mother, b). father, c). the women in a straight line upwards of the father; d). sister of the child concerned; or e). Blood relatives of women by the side line of the father. So, under normal circumstances, the law prioritizes custody to the mother of the child. Please take a note, under normal circumstances! If you think your particular situations are not even close, please continue reading.

For children who already mumayyiz, it is up to the child to choose between his father or mother as the holder of the right of maintenance. Nevertheless, the father of the child has the responsibility to provide child support according to his ability regardless who holds the custody.  He should provide child support at least until the child is able to take care of him/herself or have aged 21 years. This provision relates to the principle in Islam that the father is the bread-maker in the family. The fact that in this modern world where women are also working and making good career, it does not forbid the obligation of a father to provide the child support. Something we must realize is that other than as husband and wife, we all have other capacity that is as father and mother for children born in our marriage.

Child Custody for Non-Moslem

Child custody and maintenance for Non-Moslem is applicable for children under the age of 18 years old or unmarried. In case of divorce to both parents, the provision of child custody and maintenance can be found in 1974 Marriage Law, Child Protection Law, and Indonesia’s Civil Code.

The 1974 Marriage Law stipulates that in case of divorce, both parents are still obliged to maintain and educate their children until the child marries or able to support themselves. In the event of disputes, they are still obliged to maintain and educate their children until the child marries or able to support themselves. A district court may enter into a verdict on the disputes. The provision sends a message that child custody and maintenance in the event of divorce is still a part of the obligations and responsibilities of spouses. Furthermore, Child Protection Law provides that parents are obliged and responsible for caring, nurturing, educating, and protecting children, fostering the children in accordance with their abilities, talents, and interests, and should prevent the occurrence of early marriage.

The Civil Code stipulates that the legal consequences of a divorce may end the parental authority (ouderlijke macht) and turns into guardianship (voogdij). When the marriage dissolved by the court, there should also be regulated on the guardianship of the underage children. The guardianship shall be determined after the judge hears family from both parents with close relationship with the child.  Determination guardian also may be reviewed by a judge at the request of the father or the mother based on changing circumstances.

How Can You Lose the Custody?

Being a holder of child custody and maintenance is not permanent. A father or a mother could lose child custody and maintenance in the event he/she cannot guarantee the child’s physical and spiritual safety.

If You’re Moslem

At the request of child’s relatives concerned, the religious court may transfer the custody rights to other relatives who have rights of custody as well. Although child custody is a right of a mother, but sometime she could lose the rights due to special factors. There are factors that can impede her rights in obtaining child custody, among others, are:

  1. Ar-Riqqu. Literally, it means that the person concerned has status as a slave. I believe this is no longer applicable as we recognized equal status to all human being. Nevertheless, this can be further interpreted that the person has no freedom at her will. Don’t get me wrong! For example, you are working abroad and you cannot attend the child on daily basis in Indonesia. You need help from your family in Indonesia to take care of the child. On the other hand, your husband resides in Indonesia. Instead of giving the custody to you as the mother of the child, or giving a way the custody to wife’s parent; the father of the child will prevail and shall be the most appropriate parent to hold the custody and maintenance of the child.
  2. The Fasiq. She conducts immoral behaviors such as having an affair with other man, or even worse, committing adultery. Can we trust her with the responsibility of parenting?  When the court found her committing adultery, she will no longer entitle to child custody. How come? If she still has the custody, she will educate the child in accordance with her bad habits. Remember, our children learning by examples of their parents. The Islamic Law finds that the Fasiq will give negative impact to the children.
  3. The Kafir, means Non-Moslem person. The Islamic Law finds that they should not be entrusted with the parenting right of a Moslem child. Furthermore, the Islamic Law finds that they have the possibility in deceiving the child and removing it from the religious beliefs of Islam.
  4. A woman re-married with another man. On the issues of parenting, a mother holds primary rights to child custody and maintenance. However, the right will be automatically revoked when she married to another man with no family relationship with the child (ajnabi). On the other hand, if she married to a man with ties of kinship with the child, the mother custody is not lost.  The revocation of the custody right shall be on the ground of religious court’s order.  In this particular situation, I would like to refer to the Hadits of Prophet of Muhammad:

أَنْتِ أَحَقُّ بِهِ مَا لَمْ تَنْكِحِي

You have more right to nurture him/her as long as you are not married.”

When the impediment factors are disappearing, for example the mother divorced again, she will get her custody right back. Some women don’t know about these rules when they got divorce. When our firm work for a case in a religious court in Bali, we advised our client to resign from her employment abroad to avoid her losing the custody. Nevertheless, such decision sometimes cannot always be accepted by everyone. Having a custody means that you have a responsibility to raise the child. When you and your ex do not cooperate, you will face difficulties in doing the job. After all, it’s not easy being a single parent.

If You’re Non-Moslem

Every child has the right to be taken care of by their parents, unless there is a reason and/or valid legal rules indicate that the separation with the parent is in the best interests of the child and should be taken as the final consideration. However, court decisions remain to decide custody of parents against children when one of their parents behave poorly and neglect their obligations towards the child. Nevertheless, someone who holds child custody and maintenance must be of the same religious affiliation with the child. The existence of this provision will ensure the parent will provide religious education for the child properly.

The Child Protection Law further stipulates that parental authority of one or both parents may be revoked at the request of the other parent or adult siblings or authorized officer based on the court verdict due to neglecting the duty towards the child and behave badly. Let me be more specific on the definition of other parent. It can be either grandmother of the child from the father’s line, grandfather of the child from the mother’s line, and the child’s family in straight line upward (grandfather or grandmother of the child). The first one is being prioritized in the event both parents are being revoked by the court.

In view of the above and regardless who have the custody, I believe you and your ex must work together in raising the child. Both of you still have obligations and responsibilities even if you’re not married anymore. Set aside the ego, and work side by side for your flesh and blood’s upbringing. I know it is easier said than done, but it is worth to try.

Well, I hope you get the whole picture about this issue and most important is that you have enough access to the legal system that protects your rights.  At Wijaya & Co, we are helping people with their legal issues and assisting them to have access to the legal system in Indonesia. This information is to help them to gain the access and please feel free to forward it to others who might need the information.

I am Asep Wijaya. Thank you for visiting my blog, and reading my posts.
 
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Our thanks to Asep Wijaya, Managing Director of Wijaya & Co for sharing this information with us!
 

Disclaimer:

The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.

Monday, 19 February 2018 10:15

Out of Wedlock Child

The child was born out of wedlock, she/he has no legal relationship with you as the father. Only with her/his mother and her family. In order to establish legal relationship between the child and you, you need first to acknowledge the child by entering into a Paternity Affidavit. Marrying the child’s mother is a benefit for the case. In order to legalize the child, you must acknowledge the child as your flesh and blood, and get the mother to consent it. A DNA test is a statutory requirements and therefore is highly recommended.  Furthermore, you need to supply supporting documents such as a. Copy of your passport,  and KITAS, if applicable; b. Copy of your wife's KTP, family card (so called “Kartu Keluarga), and copy of your wife’s birth certificate; c. Child's birth certificate; d. Your marriage certificate.
 
In order to give you a big picture of the case, you're stuck between the two legal system for Moslem and Non Moslem in Indonesia. Let me explain this to you. Private law in Indonesia has two major system: Moslem and Non Moslem. For Moslem individual, their private laws are mainly subject to Islamic Compilation Law, and also 1974 Marriage Law. Their marriage registered with KUA, but the birth of the child registered at Civil Registry. Their divorce processed at Religious Court. For Moslems, they don't recognized out of wedlock child. On the other hand, Non-Moslem individuals, their private laws are mainly subject to Civil Code, and some national enacted laws such as 1974 Marriage Law. Their marriage registered with Civil Registry. The birth of the child registered at the Civil Registry as well. Their divorce processed at a district court. For Non-Moslems, they recognized out of wedlock child. They legalize the child born out of wedlock within the marriage of the parents, if the marriage is a scenario. If the marriage was not a scenario, they recognized child acknowledgment. The father acknowledge the child as his flesh and blood, and the mother consent it. 
 
You see why you're hitting the block? You are in between of two legal systems of private laws. The correct way to solve the case is to get marriage legalization. But the court rarely approve that because they think marriage legalization entertains bigamy in Indonesia. Therefore, the only legal way to solve this issue is by getting child legalization. This is not only about legalizing what the facts are. This is about getting  you legalized as the couple married in Moslem, and have the baby legalized and getting your name on the birth certificate even though he/she was born before the marriage of the parents.
 
I hope you've got the whole big picture of the limbo where you're stuck in. The legal systems are the implementations of Indonesia as the most Moslems populous country, and its accommodation of other individuals with different religions. The Indonesian laws are the mirror of our people and its varieties.
 
I am Asep Wijaya. Thank you for visiting my blog, and reading my posts.
 
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Our thanks to Asep Wijaya, Managing Director of Wijaya & Co for sharing this information with us!
 
Disclaimer:

The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.

Friday, 17 November 2017 10:11

Indonesian Citizenship for Your Mixed-Child

Double Citizenship under the New Law: Acquiring Indonesian Citizenship for Child Born in the Mixed-Marriage

General Overview

The new Indonesian citizenship law considered as landmark on citizenship. It provides for, among others, children from mixed-marriage to have dual citizenship until they reach 18 years of age or more when they have to choose one citizenship, either Indonesian or the other.

Under this new-enacted law, the child does not automatically lose his or her Indonesian status. Indonesian women are not automatically follow their husband's citizenship status and can be sponsor for their husband to turn status to Indonesian citizens.

The newly-enacted citizenship law gives children of mixed-marriages with Indonesian mothers the rights to dual citizenship until they are 18 years old. At the age of 18, they can choose whether to stay Indonesian citizens or follow their foreign father's citizenship. They will be then given additional three more years to decide on which nationality to choose.

Our Indonesian law firm has assisted many foreign clients to obtain Indonesia's dual citizenship for their children.  Obtaining Indonesia's dual citizenship for your child is NOT just applying for a new passport, particularly for the child born before the new citizenship law enacted. There are certain proceedings that must be completed before your child entitle to Indonesia's dual citizenship.

Child Eligibility

The Decree of Ministry of Law and Human Rights defines child entitles to Indonesian citizenship, with the following categories:

  1. Child born in a legal wedlock of an Indonesian father and alien mother;
  2. Child born in a legal wedlock of an alien father and Indonesian mother;
  3. Child born out of wedlock of an alien mother acknowledged by the Indonesian father and such acknowledgement must be done before the child reaches 18 years of age or unmarried;
  4. Child born outside the territory of Republic of Indonesia of an Indonesian parent and given by the local citizenship laws granted such citizenship to the child. It means that the country where the child was born holds ius sanguinis principles that the citizenship of the child follows the parent;
  5. Child of an Indonesian citizen born out of legal wedlock, under age of 18, and unmarried legally acknowledged by the alien father;
  6. Child of an Indonesian parent under the age of 5 (five) legally adopted by the foreigner based on a court decree.

The eligible children must be aged below 18 years old or unmarried, otherwise they  must go with normal naturalization process in order to obtain the Indonesian citizenship.

Child Born Before Aug. 01, 2006

Child born before Aug. 01, 2006 is not automatically entile to double citizenship. The citizenship of Indonesia can be obtained through registration by submitting application forms. The application to obtain Indonesian citizenship for your child must be made in writing  using Bahasa Indonesia, on paper affixed with sufficient duty stamp.

The Time Frame

Although the period of time has been set in the Ministry's Decree that each application can be approved within approximately 100 days (subject to receipt  of all completed application), the length of time varies  from case to case according to its circumstances. It usually approved within approximately 3 (three) up to 4 (four) months.

The time it takes each district office to process the case varies. Some cases are delayed because the applicant does not follow instructions carefully or supply incomplete information. It is important to give correct addresses and telephone numbers.

Immigration Facility

Upon receipt of the Ministry's decree, you need to report in writing to local immigration office having jurisdiction over your child's residence. Also, bring your child's foreign passport and his/her stay permit.

The immigration will in turn:

  1. Revoke your child's stay permit;
  2. Upon your request, they will issue an Indonesian passport;
  3. Put an immigration stamp/chop in the endorsement page of your child's Indonesian passport;
  4. Issue an affidavit statement to obtain immigration facility, if your child possesses a foreign passport.

Closing Date

The registration must be made within 4 (four) year since the law enacted: August 01, 2010.

Child Born On or After August 01, 2006

The child born on or after August 01, 2006 is automatically entile to an Indonesian citizenship. You can easily register him/her at the local immigration office having jurisdiction over your child's residence and entitle to an Indonesian passport. They will put an endorsement on your child's Indonesian passport to obtain an immigration facility. In the event that your child already possess a foreign passport, the immigration office will issue an affidavit statement for you to entitle to an immigration facility.

Immigration Facility for Dual-Citizenship Child

The child with one passport (foreign passport) will no longer require to obtain a visa, stay permit, or re-entry permit. For dual passport child,  he/she is obliged to use only one passport to entry and exit Indonesia.

What if You're not Married

In the event you're not married, the registration procedures for your child are still the same. It just, you have to go through particular proceedings, before you can submit your application. You need to get child's acknowledgment certificate from civil registry office, and submit the petition for legalizing the child to the local district court to get a court decree. These two documents are required for registering your child's citizenship with the local office of Department of Law and Human Rights.

Our thanks to Asep A. Wijaya, Managing Director of Wijaya & Co for sharing this information with us!

 

Disclaimer:

The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.

Friday, 17 November 2017 10:10

Children Born Out of Wedlock

Children born outside of marriage are declared as illegitimate on their birth certificates under Indonesia's 1974 Marriage Law. In Indonesian, the term illegitimate is known as ''Anak Luar Kawin'' referring to the child born outside the marriage of the two parents. As such, these children do not have any legal claim against their biological fathers, as the identity of the father is not noted on the birth certificate.

This article will hopefully be useful for parents who are experiencing legal problems with their children born out of wedlock in Indonesia and wish to obtain legal recognition for their children.

Definition

An ''out of wedlock'' child is a child born outside of a marriage between the woman who is giving birth to the child with a man who caused her pregnancy. The legal parentage of the child may or may not be admitted by the father.

Parentage Acknowledged by the Father

A child born out of wedlock shall have civil law relations only with his/her mother. The child does not automatically have a legal parental relationship with the father. To establish that legal relationship with the father, Indonesian law requires an admission, referred to as ''pengakuan'', where the father admits that the child is in fact his child. The out of wedlock child already has a civil law relationship with the mother who is giving birth to the child. This grants a family relationship, with its legal consequences including inheritance rights, to the mother of the child (only). An admission of the parentage by the father will not create a family relationship between the child with his/her father's family.

Out of Wedlock Legalization

Legalization is the next step towards recognizing parentage of an out of wedlock child. The father that intends to legalize the child's birth must legally marry the child's mother. The legalization will grant family relationship between the child with her/his parent's and their families that have acknowledged the child's parentage.

Recorded at Civil Registry Office

The admission of out of wedlock child is not a hush-hush proceeding. It should be registered with the Civil Registry by recording the child's birth in the birth certificate registry or into the parent's marriage certificates (which will then grant legalization) or in a separate deed of civil registry or even written in a notary deed.

Once the parents are legally married and the birth is registered at the Civil Registry Office, the child's parentage is legally recognized by the Indonesian government. A new birth certificate, can be issued by the civil registry office, will have the father's name on it.

Our thanks to Asep A. Wijaya, Managing Director of Wijaya & Co for sharing this information with us!

 

Disclaimer:

The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.

Friday, 17 November 2017 09:48

Step Child Adoption

Step child adoption is pretty special in Indonesia. Not only because this is happening within a marriage, but this is also about sharing the custody of a child between you as the step  parent and your spouse as the custody holder. It should not remove your spouse’s custody right and put it on you as the step parent. It’s more like making your spouse shares the wonder of being a parent with you as if the child was born within your marriage. Both of you will be sharing parental wonders of life changing experience in virtue of a court decree. 

Adopting your step child in Indonesia is a special adoption proceedings because it takes place within a marriage between Step Parent and Biological Parent. Adopting your spouse’s child, sometimes referred to as a step child adoption, or step parent adoption,  can make your family feel connected. When a step parent adopts his spouse’s child, he becomes responsible for the child both legally and financially in addition to forming emotional bond.

You need to be very careful with your application. There are many aspects in relation with the step child adoption in Indonesia, including delicate issues like inheritance, etc. You need to have an experienced legal representation with solid legal memorandum.  It looks easy, but it's slippery. The proceedings might end-up with failure without any substantial knowledge and experience in handling similar cases. If the court were to reject your petition of step-child adoption, you need to get it appealed to the higher court, which makes it even more difficult.

Wijaya & Co has succeeded in many proceedings of step child adoption cases in Indonesia, both for Indonesian couples, and IndDivorce Laonesian mixed-marriage couples. Our Indonesia lawyers have presented the similar cases with confident supported by hand-picked legal grounds, successful case precedence to help the court examine your case, witnesses briefed to support the case, and strong legal opinion of why your family needs to have the case a success.

Consider the following issues in order to establish legal relationship between you and your step child with the adoption proceeding carried-out bDocumenry our firm:

  1. Experienced family law attorneys;
  2. High success rates in previous similar cases handled by our attorneys that will also contribute to your success;
  3. Conclusive legal binding.

Call or email us in getting your family intact both emotionally and legally with the assistance of dedicated family law practitioners in Indonesia.

Our thanks to Asep A. Wijaya, Managing Director of Wijaya & Co for sharing this information with us!

 

Disclaimer:

The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.

Thursday, 16 November 2017 08:54

Adoption of Step Children in Indonesia

Adopting your Indonesian stepchild is a special adoption proceeding because it takes place within a marriage between an adopting parent and a biological parent. Adopting your spouse’s child can make your family feel connected. When a step-parent adopts his spouse’s child, he becomes responsible for the child both legally and financially in addition to forming an emotional bond.

This type of adoption is pretty special in Indonesia. Not only because it is happening within a marriage, but this is also because of the shared custody of the child between the adopting parent and the spouse as the custody holder. It should not remove your spouse’s custody right and put it on you as the adopting parent. It’s more like making your spouse share the child custody with you as if the child was born within your marriage. Both of you will share parental authority in virtue of a court decree.

The step-child adoption is a civil proceeding. You need to complete all the required motions. You, as a Petitioner(s), are required to be proactive. You're the one that is presenting facts, information, legal grounds, supporting documents, and witnesses. The judge takes on a passive role, and shall only entertain your motions as long as you're doing it correctly. These are crucial to remember if you want a smooth proceeding.

If you manage to present the facts and information successfully, the court will issue a court order. It will make everything legitimate and legally binding. You need to provide supporting documents and at least two witnesses at court. When the court awards the court order, you must forward it to the civil registry office four further registration.

Prerequisite Requirements

Certain prerequisite requirements must be fulfilled for step-child adoption in Indonesia.  If one item is missing, your petition will be rejected by the court.  Please ensure that all of these exist at the time of the application for step child adoption is lodged in the court:

  1. Marital status of your spouse. Your spouse must be legally divorced from the previous spouse before you can adopt your step-child. Divorce in Indonesia must be carried-out in a court of law and an absolute divorce decree must be issued by the court – a religious court for Moslems and a district court for Non-Moslems. This is a basic requirement.
  2. Custody of the child. You need to discover whether or not your spouse has legal custody of the child. This information would be found in the divorce decree. This is very important since the Indonesian spouse will be sharing the custody with you. If he/she was never married before, and your step child was born out of legal marriage, then we suggest you apply for and obtain a Certificate of Child Custody before you start the adoption proceeding. The custody certificate may be in the form of court order that certifies the legal relationship between your wife as the child’s mother and the child, and that your wife is the holder of the custody.
  3. Affidavit and consent. You may be supporting the child on a daily basis for daily living expenses, education, etc., but you must enter into an affidavit to make it even more official by certifying that you will be responsible for that. As for your spouse, he/she will have to consent to the proceeding. So, the two of you will need to initiate reciprocal actions for the adoption.

Legal Grounds

There are several legal grounds that you can use to support the efforts in a court of law. You must choose the legal grounds carefully because each and every legal ground leads to different legal implications. The proceeding is carried out to safeguard the best interests of your step-child, but you may also need to seek and choose supporting legal grounds, or have someone with enough experience to do it for you.

The court will not approve the petition just because you have utmost good faith in raising the child.  While many prevailing laws and regulations may support your efforts in adopting your step child in Indonesia, some of them are better utilized than others. The interpretation of each legal ground will assist the court to examine your civil petition. Inappropriate choice of legal grounds will lead the court to deny your civil petition. Therefore, make sure you pick the ones that support you, and not the other way around.

Let me give one example of the legal grounds and its further implications. Article 43 of 1974 Marriage Law that stipulates:  “A child born outside of marriage has only a civil relationship with his/her mother and his/her mother's family.” This article may be quite safely used as the legal ground in adopting your step child, because the child was born outside of a legal marriage for your wife, and the father of the child is nowhere to be found. Nevertheless, you should look at any recent developments in family and matrimonial law in Indonesia before choosing the legal grounds for your petition.

In February 2012, the Constitutional Court issued a major breakthrough with decision No. 46/PUU-VIII/2010 date February 13, 2012. The Court has amended Article 43 of the Marriage Law and it now reads as follows: “A child born outside of marriage has only a civil relationship with his/her mother and his/her mother's family as well as the man who is the child’s father as can be proved by science and technology, and/or other evidence under the laws to have a blood relationship, including civil relationship with his/her father's family.”

Therefore, if you’re using this legal ground to get your step child adopted, your spouse needs to have a certificate of child custody. The certificate certifies that she is the legal holder of child custody. It can be either in the form of an absolute divorce decree, or court order certifying that she is the mother of a child born outside of a legal marriage. The absence of such certificate might jeopardize the proceedings since the court most likely will need to know the biological father of the child, or require consent from him.

Legal Precedence

The more legal precedence you have, the better. You might want to help the judge determine this if precedence will be used as consideration or reference. Judges in Indonesia are not obliged to follow legal precedence like their colleagues in Common Law countries such as United States, UK, and Australia. Sometimes, ego plays an important role as well. Following other judges’ precedence might be seen as a lack of initiative in researching prevailing laws and regulations regarding issues or conditions in the society. But compiling precedence for your case will not hurt you and will strengthen your petition.

Another example from our practice: Court decree number 555/Pdt/P/2012/PN.Jkt dated December 19, 2012. The proceeding took place in the District Court of North Jakarta. The husband is a Swedish national. His wife is an Indonesian woman who brought a child born out of wedlock child to the marriage. The legal considerations reached by the court in granting the stepchild adoption application were as follows:

  1. The couple is legally married in Sweden and the marriage is recognized by the laws in the Republic of Indonesia;
  2. The child is an out of wedlock child born to the Indonesian wife and the wife is the custody holder of the child based on a Certificate of Child Custody. They met the prerequisite requirements as we helped them to secure the certificate that certified her as the sole holder of the child custody;
  3. The husband is the family bread winner and has been supporting the child on a daily basis for food, education, clothes, housing, and entertainment;
  4. The husband supplied the court with a letter from the company he works for certifying that the child is entitled to the company’s dependent benefits in the event the court grants the stepchild’s adoption.

The couple not only met all the prerequisite requirements but they also successfully convinced the judge that the court order will be used for the best interests of the child.

What if your Petition is rejected?

Like any other civil petition, the legal system in Indonesia allows the Petitioner to appeal to a higher court. But rejection by the district court will not look good. The process will no longer be downhill for you. Therefore, I would suggest you to your best effort at the first instance court by getting a licensed and experienced legal practitioner to assist you.

Our thanks to Asep A. Wijaya, Managing Director of Wijaya & Co for sharing this information with us!

 

Disclaimer:

The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.

 
Wednesday, 15 November 2017 15:25

Child Custody Certificate in Indonesia

During the marriage of parents, children shall be under their parental authority until they reach the legal age to the extent that the parents are not relieved of such responsibility. In the event the parents’ marriage is dissolved due to divorce, death or other cause, parental authority shall take the form of custody rights. So, it is about your legal rights as a parent if your marriage is no longer exist. 
 
What are custody rights?
 
In Indonesia, custody rights is the legal documents that you posses a valid authority of the child. You have the authority in getting the child physically lives with you, nurturing him/her, and even taking him abroad for a trip. So, the custody certificate serves as immigration clearance. You are also authorize to represent the child legally in keeping her/his best interest such as choosing school, extra curricula, or even his/her favorite sports in school.
 
Without this document, they may find you're committing a parental child-abduction. Some of the divorce papers may have your custody rights. But beware, not all the divorce decree gives you child custody rights. Read again carefully! The important items might be missing. It might not be included for various reasons. The issues were not contested by you and your ex-spouse, among others. 
 
What if you’re not legally married?
 
If your child was conceived outside of marriage, or if the marriage was not legally registered, the child shall hold an out of wedlock status. Children who are born outside marriage have only a civil relationship with their mother and their mother’s family. Therefore, the mother has full custody rights for the child. Furthermore, in order to establish a legally recognized relationship between the mother and the child, you need to have an out of wedlock birth certificate. This is a birth certificate of the child and list only mother's name only as a parent. A father's name must not be printed on it. Otherwise, you've got the wrong document. 
 
Some parent may complaints that it's not a normal birth certificate. Yes, you're right. It's not a usual practice as well, according to law, to conceive a child without first being legally married to the biological mother. That's why they gave you a birth certificate with only the mother's name on it. Because legally, the child has civil relationship with the mother only. Legal breakthrough according to the Constitutional Court is giving the child legal relationship with the biological father. But it's not automatically as if the child was born into the marriage of their parents. A special legal proceeding must be carried-out if you want to build a bridge between the father and the child. They called it a child legalization. 
 
The Legal Grounds
 
The legal grounds for custody certificates are vary. You may find it in some laws concerning family, and matrimonial laws in Indonesia such 1974 Marriage Law, Child Protection Law, and Islamic Compilation Law. The last one is specifically for Moslem married-couples. So, if the court from other jurisdiction needs to mirror this to the Indonesian side, we can properly pointing it to the rights direction. Your Indonesia's custody certificate will be legally recognized and the court from other jurisdiction will recognize you and the child as legally related.
 
A conclusive and legally-binding document
 
The custody certificate of your child is a legally recognized document in Indonesia. It’s a product of a legal system and therefore it must be conclusive and legally-binding document. It means that it is a valid document and will protect you and the chid as the beneficiary. 
 
Your certificate may be either joint or sole custody. If your child was out of wedlock, you’ve got to have sole custody rights. If your child were born in the legal marriage, you may have either sole or joint custody with your ex-spouse. This situation creates more implications to the child if you’re taking the child for a trip abroad. Clearance from your ex-spouse must be obtained prior leaving the country. 
 
It is very important that everyone has access to knowledge about the legal system in Indonesia. Please share this information with others who might benefit.
 
Our thanks to Asep A. Wijaya, Managing Director of Wijaya & Co for sharing this information with us!
 

Disclaimer:

The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.

Wednesday, 15 November 2017 15:05

Child Custody in Indonesia

Custody and maintenance of children, like other family matters in Indonesia such as divorce, and inheritance; is governed by religious affiliation of the respective spouses. Some of you may find it absurd, but this relates to the belief that religion plays an important role in the family environment.

Child Custody for Moslem

The questions regarding who is entitled to custody or maintenance of children in the event of a divorce between a husband and wife who are Moslems, are subject to the provisions of the Compilation of Islamic Law, and also subject to the principles contained in the Religion of Islam. In the event of divorce, the maintenance of children who have not yet mumayyiz(under 12 year old) is their mother’s. In the case of mothers has died, then the position of woman as the holder of the rights can be replaced by the following persons: a). the women in a straight line upward from the mother, b). father, c). the women in a straight line upwards of the father; d). sister of the child concerned; or e). Blood relatives of women by the side line of the father. So, under normal circumstances, the law prioritizes custody to the mother of the child. Please take a note, under normal circumstances! If you think your particular situations are not even close, please continue reading.

For children who already mumayyiz, it is up to the child to choose between his father or mother as the holder of the right of maintenance. Nevertheless, the father of the child has the responsibility to provide child support according to his ability regardless who holds the custody.  He should provide child support at least until the child is able to take care of him/herself or have aged 21 years. This provision relates to the principle in Islam that the father is the bread-maker in the family. The fact that in this modern world where women are also working and making good career, it does not forbid the obligation of a father to provide the child support. Something we must realize is that other than as husband and wife, we all have other capacity that is as father and mother for children born in our marriage.

Child Custody for Non-Moslem

Child custody and maintenance for Non-Moslem is applicable for children under the age of 18 years old or unmarried. In case of divorce to both parents, the provision of child custody and maintenance can be found in 1974 Marriage Law, Child Protection Law, and Indonesia’s Civil Code.

The 1974 Marriage Law stipulates that in case of divorce, both parents are still obliged to maintain and educate their children until the child marries or able to support themselves. In the event of disputes, they are still obliged to maintain and educate their children until the child marries or able to support themselves. A district court may enter into a verdict on the disputes. The provision sends a message that child custody and maintenance in the event of divorce is still a part of the obligations and responsibilities of spouses. Furthermore, Child Protection Law provides that parents are obliged and responsible for caring, nurturing, educating, and protecting children, fostering the children in accordance with their abilities, talents, and interests, and should prevent the occurrence of early marriage.

The Civil Code stipulates that the legal consequences of a divorce may end the parental authority (ouderlijke macht) and turns into guardianship (voogdij). When the marriage dissolved by the court, there should also be regulated on the guardianship of the underage children. The guardianship shall be determined after the judge hears family from both parents with close relationship with the child.  Determination guardian also may be reviewed by a judge at the request of the father or the mother based on changing circumstances.

How Can You Lose the Custody?

Being a holder of child custody and maintenance is not permanent. A father or a mother could lose child custody and maintenance in the event he/she cannot guarantee the child’s physical and spiritual safety.

If You’re Moslem

At the request of child’s relatives concerned, the religious court may transfer the custody rights to other relatives who have rights of custody as well. Although child custody is a right of a mother, but sometime she could lose the rights due to special factors. There are factors that can impede her rights in obtaining child custody, among others, are:

  1. Ar-Riqqu. Literally, it means that the person concerned has status as a slave. I believe this is no longer applicable as we recognized equal status to all human being. Nevertheless, this can be further interpreted that the person has no freedom at her will. Don’t get me wrong! For example, you are working abroad and you cannot attend the child on daily basis in Indonesia. You need help from your family in Indonesia to take care of the child. On the other hand, your husband resides in Indonesia. Instead of giving the custody to you as the mother of the child, or giving a way the custody to wife’s parent; the father of the child will prevail and shall be the most appropriate parent to hold the custody and maintenance of the child.
  2. The Fasiq. She conducts immoral behaviors such as having an affair with other man, or even worse, committing adultery. Can we trust her with the responsibility of parenting?  When the court found her committing adultery, she will no longer entitle to child custody. How come? If she still has the custody, she will educate the child in accordance with her bad habits. Remember, our children learning by examples of their parents. The Islamic Law finds that the Fasiq will give negative impact to the children.
  3. The Kafir, means Non-Moslem person. The Islamic Law finds that they should not be entrusted with the parenting right of a Moslem child. Furthermore, the Islamic Law finds that they have the possibility in deceiving the child and removing it from the religious beliefs of Islam.
  4. A woman re-married with another man. On the issues of parenting, a mother holds primary rights to child custody and maintenance. However, the right will be automatically revoked when she married to another man with no family relationship with the child (ajnabi). On the other hand, if she married to a man with ties of kinship with the child, the mother custody is not lost.  The revocation of the custody right shall be on the ground of religious court’s order.  In this particular situation, I would like to refer to the Hadits of Prophet of Muhammad:

أَنْتِ أَحَقُّ بِهِ مَا لَمْ تَنْكِحِي

You have more right to nurture him/her as long as you are not married.”

When the impediment factors are disappearing, for example the mother divorced again, she will get her custody right back. Some women don’t know about these rules when they got divorce. When our firm work for a case in a religious court in Bali, we advised our client to resign from her employment abroad to avoid her losing the custody. Nevertheless, such decision sometimes cannot always be accepted by everyone. Having a custody means that you have a responsibility to raise the child. When you and your ex do not cooperate, you will face difficulties in doing the job. After all, it’s not easy being a single parent.

If You’re Non-Moslem

Every child has the right to be taken care of by their parents, unless there is a reason and/or valid legal rules indicate that the separation with the parent is in the best interests of the child and should be taken as the final consideration. However, court decisions remain to decide custody of parents against children when one of their parents behave poorly and neglect their obligations towards the child. Nevertheless, someone who holds child custody and maintenance must be of the same religious affiliation with the child. The existence of this provision will ensure the parent will provide religious education for the child properly.

The Child Protection Law further stipulates that parental authority of one or both parents may be revoked at the request of the other parent or adult siblings or authorized officer based on the court verdict due to neglecting the duty towards the child and behave badly. Let me be more specific on the definition of other parent. It can be either grandmother of the child from the father’s line, grandfather of the child from the mother’s line, and the child’s family in straight line upward (grandfather or grandmother of the child). The first one is being prioritized in the event both parents are being revoked by the court.

In view of the above and regardless who have the custody, I believe you and your ex must work together in raising the child. Both of you still have obligations and responsibilities even if you’re not married anymore. Set aside the ego, and work side by side for your flesh and blood’s upbringing. I know it is easier said than done, but it is worth to try.

Well, I hope you get the whole picture about this issue and most important is that you have enough access to the legal system that protects your rights.  At Wijaya & Co, we are helping people with their legal issues and assisting them to have access to the legal system in Indonesia. This information is to help them to gain the access and please feel free to forward it to others who might need the information. I’m Asep Wijaya, and thanks for helping Wijaya & Co spreads the access to the legal system in Indonesia.

Our thanks to Asep A. Wijaya, Managing Director of Wijaya & Co for sharing this information with us!

 

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The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.

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