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The number of divorce cases in Indonesia always shows an increase every year. The reasons also vary, ranging from incompatibility, domestic violence, age differences, financial problems to the presence of a third person.

Although a once-married couple is officially divorced and is no longer living together, every parent would want the best for their children. Both father and mother certainly have their own way of educating children, which becomes the main cause of why child custody is often contested by parents. Therefore, parents need to know all information relating to child custody after divorce. The parents also have the right to decide custody of children amicably or through legal means.

Referring to Article 45 of Law No. 1 of 1974 concerning Marriage (“Marriage Law”), in principle, both parents are required to maintain and educate their children as well as possible. That is, even though their parents have divorced, their children still have the right to receive good care and education from both parents. Therefore, usually, when a judge decides a divorce, the judge in his/her judgment gives an obligation to parents to always jointly provide maintenance, education, and a decent life for their children.

As an illustration of the distribution of custody, if you look at Islamic law, we can refer to the Compilation of Islamic Law (“Compilation of Islamic Law”). The Compilation of Islamic Law specifically regulates the authority of parents over children by using the term “child care” in Articles 98 to 112, whereas Article 107 to 112 specifically regulates guardianship. In the Compilation of Islamic Law, there are articles which regulate the traditions including:

Article 98 of the Compilation of Islamic Law:

“1) The age limit for children who are able to stand alone or adults is 21 years, as long as the child has no physical or mental disability or has never married.

2) The parents represent the child regarding all legal actions inside and outside the court.

3) The Religious Court can appoint one of the closest relatives who can fulfill this obligation if both parents are unable. “

Article 105 of the Compilation of Islamic Law:

“In the event of a divorce:

a. Custody of children who are not yet mumayiz or who are under 12 years old is the right of their mothers;

b. Mumayiz child custody is left to the child to choose between his father or mother as the holder of the right to take care of him/her;

c. Custody costs are borne by his father. “

In Article 105 of the Compilation of Islamic Law above, in the event of a divorce, the custody of children who are not yet mumayyiz or under 12 years old is the right of the mother, while the custody for children who are already mumayyiz is left to the child to choose between the father or mother as the holder of the right to custody.

Even so, there are exceptions to the provisions of Article 105 of the Compilation of Islamic Law. If it is proven that the mother has apostatized and embraced a religion other than Islam, then the mother’s right of custody of the child can be revoked. This was confirmed by the Supreme Court Jurisprudence of the Republic of Indonesia No : 210/K/AG/1996, which contained legal explanations that religion was a condition to determine whether a mother’s right of custody or hadhanah of her child under 12 years old can be granted or not.

This is also supported by the opinion of an Islamic scholar written in the Kifayatul Ahyar Book, Juz II, page 94, which explains the following:

“The conditions for people who will carry out the duties of hadhanah are of seven kinds: sensible, independent, Muslim, simple, trustful, living in a certain area, and not having a new husband. If one of the conditions is lacking, the mother’s right to nurture is null and void. ”

The word “Hadhanah” has the meaning of caring for children who have not been able to stand alone, the children’s cost of education, and maintenance of everything that endangers their lives in order to guarantee the rights of the children to live, grow and develop optimally.

This is also in line with Article 1 number 11 of Law Number 23 of 2002 concerning Child Protection (“Child Protection Act”) as amended by Act Number 35 of 2014 concerning Amendments to Law Number 23 of 2002 concerning Protection Children (“Law 35/2014”) and amended the second time with Government Regulation in Lieu of Law Number 1 of 2016 concerning Second Amendment to Law Number 23 of 2002 concerning Child Protection (“Perppu 1/2016”) as specified as law with Law Number 17 Year 2016 concerning Establishment of Government Regulation in Lieu of Law Number 1 Year 2016 concerning Second Amendment to Law Number 23 Year 2002 concerning Child Protection Into Law (“Law 17/2016”) which states that fostering power is the power of parents to take care, educate, nurture, foster, protect, and grow children in accordance with their religion and their abilities, talents, and interests.

This means that children must be taken care of in accordance with their religion so that their mental and spiritual development is maintained.

However, in addition to seeing the religion of the parents who will get custody of the child, of course, they must also see the behavior of the parents. The similarity of religion is not the only factor to determine the best thing for the child (in the custody of his father or mother).

For example, in the Maumere Religious Court Decision No .: 1/Pdt.G/2013/PA.MUR. At first, the Petitioner (husband) and Respondent (wife) were Muslim and married under Islamic law and were registered with the Office of Religious Affairs in Maumere Sub-district, Sikka Regency. Then the Respondent converted, and this became one of the reasons for their dispute which resulted in divorce. In the divorce, the Petitioner requested that custody be given to the Petitioner because the Petitioners and Respondent’s children were Muslim, with reasons that referred to the Supreme Court Jurisprudence of the Republic of Indonesia. No .: 210/K/AG/1996 and the opinion of the Islamic scholar in the Kifayatul Ahyar Book, Juz II, page 94, as stated above.

However, the court decided for the custody to fall for the Respondent (wife) because the Petitioner (husband) had been proven guilty in the Maumere District Court for a case of child neglect.

In this case, it means that both the Petitioner and the Respondent are disabled from obtaining the child custody. However, the panel of judges considered that the mildest harm between the two was if the child remained under the care of his mother, because it was feared that the child’s development for growth and development would be neglected if the custody is given to the father.

In addition, you can also see the Supreme Court Decision No .: 376 PK / Pdt / 2011. The Plaintiff and Defendant were originally married in a Church and registered their marriage in the Jakarta Civil Registry Office. Then the Defendant and their son converted to Islam. In its decision, both the District Court, the High Court, and the Supreme Court, granted custody to the Plaintiff (wife) because the child (aged 12 years) chose to come with his mother.

Based on the above, regarding to custody, the court must also consider the spiritual development of children, but still by considering other factors that basically aim to provide the best for the child.

Hope it’s useful,

FREDRIK J. PINAKUNARY LAW OFFICES


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