Child custody in Indonesia is a family issue that may come into subject matter of the court if you're filing for a divorce. This is something normal in relation to the divorce case. Both parents claim that they are the best for the custody of their children. But do they? How the laws in Indonesian govern something like this? Read on!

Fathers' Engagement

Nowadays, fathers are getting more engaged in the child upbringing in Indonesia. They take the children to school everyday before they go to work. Fathers read with their children at night, teach them and get involved with their everyday's schooling works. Some of them also take them for taking a bath, feed them and get them dressed decently. You can't ignore this phenomenon. This is happening everywhere. They are doing this because they think fathers can do it too. They can even do it better in getting involved with their child's upbringing in Indonesia.  At Wijaya & Co, we always pay attention to details of our client’s case. 

Mother's Career 

Just because your wife is working and have a career, it doesn’t mean that she can’t nurture the child. Just because she’s busy with work, it does not mean she may be able to lose custody of a child if a divorce case in session.

Husband and wife are equal in the marriage life. Both of them have the same rights in their career and business. According to Article 31 of Marriage Law imposed that both husband and wife have the rights to earn a living and. Even sometime, just sometime, wife’s  making more money than her husband. 

Custody of a Child

When you’re still married, they called it parental authority. If you’re divorced, they called it custody. Pretty much the same  issues. It just in Indonesia, we recognized custody parent, and non-custody parent. But this is in theory as in the law books. There's more to it than meet the eyes. The judges are happy as long as you and the child are happy. 

According to Article 105 of Compilation of Islamic Law, child under 12 (twelve) years old, the custody belongs to the mother. For the child above 12, he may choose his custody parent holder. Supreme Court’s ruling number 210/K/AG/1999 imposed that a mother’s privilege for child custody may be revoked if she’s committing apostate and practise other religion beside Islam.

Other Supreme Court’s precedence number 376/PK/Pdt/2011 regarding this matter is also applicable when the female spouse was committing apostate and turned Moslem. Nevertheless, the male spouse was charged with criminal sentence for abandoning their child. So, the judges favor the party with less liability in order to raise the child. 

How to Win the Custody

It’s simple: the best interest of the child! That’s the keywords. It does sounds simple, but might not be easy to do it. Many people knows it, but many of them also fail. Getting yourself involved in school with the children, and teaching them with their English reading are a good start. Really good start. Keep up the good work!

You don’t say that you are richer than your spouse and therefore makes you a better parent. You need to prove that you are better because you put the child first. You need to promote yourself, and destroy the credibility of the opposing party. It sounds cruel, but it's a divorce case anyway. The moment you lodged the case to the court, both of you are opponents. No longer husband and wife. After all, you're doing it for the child. You need to to do it in order to win the custody of the child. But hey! Remember this: it's not about you. It's about the child. Read my lips, put the child first. Please contact me when you need any further assistance with this issue. We have previous portfolios that you can use as your reference. Please contact me should you wish to discuss any further about this.

Our thanks to Mr. Asep Wijaya of Wijaya & Co for sharing this article!

The laws and regulation in Indonesia recognize two (2) types of public and private adoption. Public adoption is applicable in the event, the child was abandoned or neglected by his/her birth family, and raised by a foster care institution managed by the government. The relevant institution in this matter is Ministry of Social Affairs. As for the private adoption, the proceeding takes place between the biological parents and the adopting parents directly. 

Adopting your step child in Indonesia can bring your family close together. You adopt your spouse's child, and legally you are family as if the child was born into your marriage. Your spouse may insist you to do it, but your willingness to do it that keep the marriage intact. You know, things a man do for his wife and his family.  At Wijaya & Co, we always pay attention to details of our client’s case. 

There are some pointers that you need to be aware of regarding the adoption of your step-child, they are:

Consent Required

Consent is required from the biological parents, both the child's father and mother, if the child was born into a legal marriage. In the event the child was born out of wedlock, the consent from the child's mother is a must. The mother has full authority as vested by the Civil Code as related to the child, including when the alleged father wish to acknowledge the child. The authority of the mother solely comes from the Article 284 of the Civil Code: "No acknowledgment of a natural child is, during the lifetime of the mother, notwithstanding that she may be of Indonesian descent or descended from a similar indigenous group, be accepted, if the mother does not approve the acknowledgment." I am not saying that as the alleged father of the child you don't have any right at all, you do. The Constitutional Court confirmed your rights, but you must willing to go the extra mile in order to do that. 

The Best Interest of the Child

The adoption proceeding that you are conducting is promoting the interests and welfare of the child. You must be able to prove this by supplying information that you are doing everything in your power to provide the child. You need to prove that the aim of the adoption is obtaining the welfare and protection of the child. You need to enter into a declaration that you are willing to be responsible for supporting the child on daily basis.

Habitual Residence

Basically, we pride ourselves with our nationality principle that all the Indonesian men are subject to the Indonesian law, wherever they are. This is the basis from the continental legal system. If you were married to a foreigner, your foreign spouse must use the Indonesian partner's jurisdiction and therefore a choice of forum is applicable. You may choose the jurisdiction of your Indonesian spouse through her/his domicile. This can be seen on his/her ID card. Article 14 of Administration of Population Law certifies that the ID card (so called KTP/Kartu Tanda Penduduk) is the official identity of a resident and is valid within the entire territory of the Republic of Indonesia. So, this is your jurisdiction as well as our laws do not require you to have a habitual residence to perform an adoption of your step-child in Indonesia.

Indonesia is not one of the Common Law countries that imposed you to have a minimum contact by having a residency at least for six (6) months. Nevertheless, you need to further consider about the requirements from your country of origin if they require you to have a residency in Indonesia. You may retrieve a spousal dependent visa in order to meet the requirement imposed on you regarding the habitual residence during the adoption proceeding. Please contact me should you wish to discuss any further about this.

Our thanks to Mr. Asep Wijaya of Wijaya & Co for sharing this article!

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!

Certificate of child custody in Indonesia certifies that you are the legal holder of a custody of a child, and therefore allows you to represent him/her inside and outside the court of law. Yup, inside and outside the court room. This term has a very broad meaning. Basically, as the holder, you are the legal representative of the child for his/her best interests. You may be considered as a guardian of the child. In order to secure the certificate for the child custody some terms and conditions applied under this situation.

The child is his/her parents’ responsibility until they reach legal age. In the event the marriage has been dissolved, Indonesia recognized custody-holder parent, and non-custody parent. In best practice, joint custody is also recognized and it must be set-out with a divorce settlement entered by both parents. The court loves this. They encourage you, the parents, to discuss the well-being of your child, even though you’re divorced.

The court acknowledged the settlement reached during in-court mediation. The divorce verdict shall include the custody and parenting plan. According to Article 41 of 1974 Marriage Law stipulates that in the event the marriage dissolved by divorce, the parents have the obligation to nurture and educate the children to the best interests of their children. If there’s a dispute in regards to the custody, the court may decide the case. Remember the keyword: "best interests of the child." This should not be translated as a situation that you are the bread-winner in the family. That may help you doing your parental works to support the child financially but it may not win the custody. You may ruin your ex-spouse credibility by submitting evidence that she/he is committing sexual misbehaviour. Although, that thing may be bring the judges' attention and creates such a court-room drama, but it won't likely to win you the case. 

In pursuing a custody of your child, I suggest you need to make sure you pay attention to your child's legal rights. Law number 23 of 2002 regarding Child Protection imposed the child's basic rights as follows:

1. Every child has the right to acquire medical services and social security according to their physical, mental, spiritual, and social needs;
2. When the child in the custody of his parents, guardian or any other party responsible for his/her custody, the child has the right protection from discrimination treatment, exploitation, either economically or sexually, abandonment, cruelty, violence, and torture, injustice, and other mistreatment. In the event the parents, guardian or care-giver committed any form of the above-mentioned treatment, the perpetrators must be imposed weighted-sentence.
3. Every child has the right to be raised by his/her own parents, except if there is a reason and/or valid legal regulation that the separation is being done for the sake of child's best interests and shall be made as the last resort. In the event one parent has been decided by the court as the holder of child custody, she or he is not allowed to forbid his/her ex-spouse to meet the child. The custody holder parent must give the other parent a reasonable access of visitation. 

The same legal reasoning also applicable to certificate of child custody for the child born out of wedlock. This one is specifically made for creating physical evidence of legal relationship between the mother and the child. One thing that must exist in this case: the child was born outside of illegitimate relationship. There's no legal marriage between the child's mother and the man who got her pregnant. Therefore, you need to conduct a DNA test. The consent from the biological mother must first be obtained before the proceedings is being initiated. Whatever you do, be nice. This is totally her statutory rights. You can't do it without her OK. 

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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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.

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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.

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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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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.

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:

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.

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.