Child custody and legal guardian
One of the essential issue that should be considered prior entering the proceedings of an Indonesian Divorce, is to obtain the child custody rights. To obtain these rights, you need to make a specified request to the court which gathered within the same document as your Indonesian Divorce application.
That being said, meaning that The Indonesian Divorce Verdict will consist of two legal appointments, that is to Regulates about your divorce and its legal consequences and Governs who will holds the custody of the children’s born within your marriage.
For the best interests of the child, and in accordance with The Indonesian marriage law (stipulated on article 41) both parents were still required to maintain their children after the divorce took place, and the divorce itself does not waive the father responsibility to provide for care, maintenance and educations for the children.
However due to the separation occur between the parents the custody rights for care and maintaining the minor children were normally given to the mother, hence the judges at most civil court houses will comply to this provisions unless it can be proven that the mother is “non-eligible” to holds such rights. Generally speaking, one of the legal bases for the court to reach the decisions regarding passing the custody rights to the mother, is based on the court jurisprudence. The jurisprudence in question were mostly issued by The Indonesian Supreme Court.
During the past years we have done many mixed-marriage matrimonial cases with the main objective to pass the custody rights of the minor children to the father, and frankly speaking those are not simple tasks to do, as many exhibits and clarifications needs to be done in order to build an opinion that the child best interests will be fully covered under the father’s maintenance.
There are certain criteria and conditions that must be fulfilled in order to pass the custody rights to the father, such as: Gathered consent between the father and the mother; Gathered facts that the mother is not being responsible to the kids; Cultural and particular environment which urges the child is best to be with the father.
What you should aware is, Indonesia is a country that holds Sole Custody provision where the law states all minor children (under 12 years old) is under the care and maintenance of the mother, and that the child may choose who he wanted to be with once the child have passed the minimum age of 12, and when the court have reach its decision to pass the custody rights onto either the father or the mother, any violations against the court verdict may lead to a serious criminal offense that may result to an imprisonment of the non-custody holder.
Seeing from previous cases on our files and as derived from the Indonesian civil code (article 1320 and 1338), the combination between the gathered consent among the parents and the facts about the actual conditions of both the father and the mother will be the most outstanding ingredients in order to pass and secure the custody rights of the children.