POST-DIVORCE CHILD CUSTODY IN THE PERSPECTIVE OF MARRIAGE LAW REGULATIONS
POST-DIVORCE CHILD CUSTODY IN THE PERSPECTIVE OF MARRIAGE LAW REGULATIONS
By : A.M. Oktarina Counsellors at Law
Contributors : Abdurrahim, S.H., Ricki Rahmad Aulia Nasution, S.H., Pramudya Yudhatama, S.H., Khaifa Muna Noer Uh’Dina, S.H., Putri Shaquila, S.H., Raysha Alfira, S.H.
Reviewer : Noverizky Tri Putra Pasaribu, S.H., L.L.M (Adv).
Picture source: https://alchetron.com/Divorce
A. Background
Nowadays, as we know, there are always many public figures discussing, who adorn the news, that are more or lessdragged down by divorce. This is a phenomenon that will cause legal issues in the future. Not to mention if the couple already has children in their marriage, who generally must have the same desires, especially related to child custody. This is potentially could cause a debate in the divorce process.
So who is most entitled to child custody if the parents marriage breaks up due to divorce? To answer this, we must first know the causes and effects of the divorce, then it may be juxtaposed with regulations and found a point of solving the problem.
B. Legal Basis
- Law Number 1 of 1974 concerning Marriage. (“Law 1/1974“)
- Law Number 16 of 2019 concerning Amendments to Law Number 1 of 1974. (“Law 16/2019“)
- Government Regulation of the Republic of Indonesia Number 9 of 1975 concerning the Implementation of Law Number 1 of 1974 concerning Marriage. (“PP 9/1975“)
- Compilation of Islamic Law (“KHI”)
- Supreme Court Decision No. : 1568 K/Pdt/2014 (“Decision 1568K/Pdt/2014“)
Referring to Article 45 paragraphs (1) and (2) of Law 1/1974 that reads:
- “Both parents are obliged to take care of and educate their children as well as possible.
- The parental obligations referred to in paragraph (1) of this article shall apply until the child marries or may stand alone, that obligation shall continue even if the marriage between the two parents breaks up.”
The obligation of parents in the care of children, is an essential thing in marriage. Of course, children’s education is an obligation and children always look in the mirror to their parents.
In addition, in relation to the implementation of regulations, it has been explained in Article 24 paragraph (2) of the Explanation to PP 9/1975, that reads:
“That the divorce proceedings that are taking place between husband and wife cannot be used as an excuse for the husband to shirk his duty to provide for his wife. So is the duty of the husband and wife towards their children. It must be safeguarded not to let the property either jointly owned by the husband and wife, nor the property of the wife or husband become abandoned or not well managed, because such a thing not only causes harm to the husband and wife but may also cause harm to third parties.”
This is an affirmation that husband and wife remain and always have responsibilities to their children. In addition, please note that if both parents do not file a lawsuit related to custody of the child when divorced, then the custody issue does not need to be resolved through the court. However, if there is indeed a child custody dispute between the two parents, then this may be brought to a resolution by procedural law mechanism that will give a legally enforceable decision. So will a mother definitely get custody of the child? So this needs to be seen again from the legal facts that occur. There are several possibilities or things that make a father may get custody of his underage child. But if a father does not get custody of his child, he still has full obligation to provide for the “baby” from his marriage with his ex-wife.
Regarding child custody, there is one jurisprudence, that is interesting to be used as one of the references, namely from Decision 1568K / Pdt / 2014, that reads:
“That with regard to the application of the parties to obtain custody, in proof it is known that the marriage of both parties, has been blessed with a child, who until now is still 5 (five) years old; Considering that the child is a minor and for the benefit of the child who still needs the attention and love of a mother, and referring to the provisions of the Marriage Law Number 1 of 1974, that is strengthened by the proof that the Plaintiff is in the care and therapy of a Psychiatric Doctor, it is very reasonable to give custody to the Defendant/Cassation Applicant, by giving the rights to meet with the Plaintiff, and burden the Plaintiff to provide until the child is an adult; ” (vide Pages 14-15)
Interestingly from the verdict, because of a mother’s attention and affection, then the custody of the child may come down to the mother. Indeed, this certainly needs to look at the history and facts that occur in practice.
From the perspective of Islamic law, the child maintenance mechanism is known, in Article 105 KHI that reads:
“In the event of a divorce:
- The maintenance of a child who is not yet mumayyiz or who is not yet 12 years old is the right of the mother;
- The maintenance of mumayyiz children is left to the child to choose between his father or mother as the holder of his maintenance rights;
- maintenance costs borne by his father.”
This certainly confirms the custody of children before the age of 12, that is the right of the mother. But keep in mind, there are several reasons in general in law, that may eliminate a mother’s right to care for children under 12 years. These reasons are stated in the following points:
- When the mother is seriously ill, that makes it unable to have the ability to take care of the child.
- If the mother is financially inadequate, does not have a job, so she cannot ensure the future of her child, and this must be proven through an authorized court.
- If the mother is a criminal and/or a criminal recidivist so that she is not a good example for children.
- When the mother is crazy so she cannot take care of the child properly.
In certain cases, it is also found that there is a possibility that the child custody is the family in a straight line up. Siblings of adult children also have the right to take care of the child. What is the legal basis for granting custody not to these two parents?
This regulation is regulated in Law 1/1974 at Article 49 paragraph (1) paragraph (2) that reads:
- “One or both parents may be deprived of authority over one or more children for a specified time at the request of the other parent, the child’s family in a straight line up and adult siblings or competent authorities, by decision of the Court in the following cases:
- He was grossly derelict of his duty towards his son;
- He behaved badly.
- Even if the parents are deprived of power, they are still obliged to pay for the child’s maintenance.”
In closing this point, it is necessary to remember and underline the following regulations, namely based on Article 34 paragraph (1) and paragraph (2) Law 1/1974 that reads:
- “The husband is obliged to protect his wife and provide everything necessary for household life according to his ability.
- The wife is obliged to manage household affairs as well as possible.
- If the husband or wife neglects their respective obligations, they may file a lawsuit with the Court.”
From this article, it may be seen implicitly, there are differences in child custody that fall to the husband or wife. This may be known to the cause of the divorce itself. If the husband cannot fulfill his obligations as the head of the household, namely by protecting his wife and child by providing everything for the needs of his household according to his best ability, then the mother may have child custody. However, if the wife has the functional task of caring for her husband and educating her children from childhood to adulthood and cannot manage all matters relating to household affairs as well as possible, then child custody may fall to the husband/father.
C. Conclusion
Basically, as we know, both parents have the same rights related to the right to nurture, raise and also educate children as well as possible, but this is often the origin of the split between divorced couples and fighting for custody, that should be deliberated while still raising, Nurturing and educating children as parents should behave for the benefit of their children.
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