Child Custody & Maintenance in Indonesia
Custody and maintenance of children like other family matters in Indonesia such as divorce and inheritance, is determined by religious affiliation of the respective spouses. While this may seem absurd, it relates to the belief that religion plays an important role in the family environment in Indonesia.
Child Custody for Moslems
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 reached mumayyiz (under 12 years old) is their mother’s responsibility. In the case of mothers who have died, then the position of the woman as the holder of the custody rights can be replaced by the following persons:
- the women in a straight line upward from the mother,
- the father,
- the women in a straight line upwards of the father,
- the sister of the child concerned, or
- Blood relatives of women on 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!
For children who already mumayyiz, it is up to the child to choose between his father and mother as the holder of the right of maintenance. Regardless of the child’s decision, the father of the child has the responsibility to provide child support according to his ability regardless of who holds custody. He should provide child support at least until the child is able to take care of him/her or has reached 21 years of age. This provision relates to the principle in Islam that the father is the bread earner in the family.
Despite the fact that nowadays many women are also working and have good careers, does not preclude the obligation of a father to provide child support.
Child Custody for Non-Moslems
Child custody and maintenance for non-Moslems is applicable for children under the age of 18 years old or unmarried. In the case of divorce, 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 they marry or are able to support themselves. In the event of disputes, they are both 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 any dispute. The legal provision sends the message that child custody and maintenance in the event of divorce is still a part of the obligations and responsibilities of both parents. Furthermore, the Child Protection Law provides that parents are obliged and responsible for caring, nurturing, educating, and protecting their children, and fostering the children in accordance with their abilities, talents, and interests, and they should also prevent the occurrence of an early marriage of their child/ren.
The Civil Code stipulates that the legal consequences of a divorce may end the parental authority (ouderlijke macht) and turns it instead into guardianship (voogdij). When a marriage is dissolved by the court, there should also be a decision on the guardianship of the underage children. The guardianship shall be determined after the judge hears the appeals from both parents’ family members with close relationships to the child. The determination of guardianship may also be reviewed by a judge at the request of the father or the mother based on changing circumstances.
How Can You Lose Custody of Your Child?
Being awarded the custody and maintenance of your children 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 a Moslem
At the request of a child’s relatives, the religious court may transfer the custody rights to other relatives who have rights of custody. Although child custody is the right of the child’s mother, sometime she could lose the rights due to special factors. Factors that can impede the mother’s rights in obtaining child custody, among others, are:
- 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 of all human being. Nevertheless, this can be further interpreted that the person has no freedom of will. For example, if you are working abroad and you cannot care for the child on a daily basis in Indonesia’ you may need help from your family in Indonesia to take care of the child. On the other hand, if your husband resides in Indonesia, instead of giving the custody to you as the mother of the child or giving away the custody to the wife’s parent; the father of the child may prevail and be the most appropriate parent to hold the custody and maintenance of the child.
- Fasiq. The mother conducts immoral behavior such as having an affair with another man or even worse, committing adultery. Can the court then trust her with the responsibility of parenting? If the court finds her guilty of committing adultery, she will no longer be entitled to child custody. Why? If she still has custody, it is believed she will educate the child in accordance with her bad habits. Remembering that children learn by the example of their parents, Islamic Law finds that Fasiq will negatively impact children.
- Kafir, a non-Moslem person. Islamic Law finds that a non-Moslem should not be entrusted with the parenting rights of a Moslem child. Furthermore, Islamic Law finds that the non-Moslem parent may possibly deceive the child and remove the child from the religious beliefs of Islam.
- A woman remarried with another man. On the issue of parenting, a mother holds primary rights to child custody and maintenance. However, the right will be automatically revoked when she marries another man with no family relationship to the child (ajnabi). On the other hand, if she marries a man with ties of kinship with the child, the mother’s custody rights are not lost. The revocation of the custody right shall be on the grounds of the religious court’s order. In this particular situation, Islamic Law refers to the Hadits of the Prophet Muhammad:
أَنْتِ أَحَقُّ بِهِ مَا لَمْ تَنْكِحِي
“You have more right to nurture him as long as you are not married.”
When the impediment factors are disappearing, for example the mother divorcing again, she will regain her custody rights. Some women don’t know about these rules when they get divorced. Nevertheless, such decisions cannot always be accepted by everyone. Having custody means that you have a responsibility to raise the child. When you and your ex-spouse do not cooperate, you will face difficulties as it’s not easy being a single parent.
If you’re a Non-Moslem
Every child has the right to be cared for by their parents, unless there is a reason and/or valid legal regulations indicating that separation from the parent is in the best interests of the child and should be seen as the overriding consideration. However, court decisions can decide custody of parents over their children when one of the parents behaves poorly and neglects their obligations towards the child. Nevertheless, the person who holds child custody and maintenance must be of the same religious affiliation as the child. The existence of this provision will ensure the parent will provide proper religious education for the child.
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 neglect of the duty towards the child and bad behavior. The specific definition of the parent is either the grandmother from the father’s line, grandfather from the mother’s line, or the child’s family member in a straight line upward (grandfather or grandmother of the child). The first one is prioritized in the event both parents’ rights are revoked by the court.
In view of the above and regardless of who has custody, both parents must work together to raise the child/ren. Both still have obligations and responsibilities, even if not married anymore.
I hope this explanation provides a more complete picture about the issue of child custody, and most importantly that you have 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 spread knowledge of the legal system in Indonesia.
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.
Our thanks to Asep Wijaya, Managing Director of Wijaya & Company for his contribution of this article!
New updates June 13, 2020.