“Law no. 35 of 2014 on Amendment of Indonesian Law No. 23 of 2002 on Children Protection stated that when a marriage ends in divorce, the child is to be entitled to choose, or may be ordered by a court, to be brought up by one of their two parents.”
The dispute often happens when it comes to deciding the custody right of the child in every divorce cases, whether it is in the religion court or in the district court. Basically, the applicable regulations and laws had decided that the custody right of under age child is given to their mother. Even though that is not an absolute matter.
However, things will get more complicated if the child was born from a mixed marriage couple. The definition of mixed marriage itself is stipulated on Article 57 Indonesian Law No. 1 of 1974 on Marriage (“Marriage Laws”), which is:
“What is meant by mixed marriage on this Law is marriage between two people in Indonesia who obey to the different laws, because of the differences of nationality and one of the party is Indonesian.”
Laws and regulations that specifically regulated regarding the determination of child custody right for the divorced mixed marriage couple is Indonesia Law no. 35 of 2014 on Amendment of Indonesian Law No. 23 of 2002 on Children Protection (“Children Protection Laws”).
As specified on the Article 29 (2) and (3) Children Protection Laws:
“In a case where a marriage as stated in (1) above ends in divorce, the child is to be entitled to choose, or may be ordered by a court, to be brought up by one of their two parents.”
Based on the Article 29 (2) Children Protection Laws, the child is given the opportunity to choose or may be ordered by a court. That provision is in accordance to what is regulated on the Islamic Law Compilation.
On the Article 105 (1) of the Islamic Law Compilation has been concluded that the child support who has not mumayyiz or under the age of 12 (twelve), is her mother’s right. However, if the child is 12 (twelve) years old or above, the child has the right to choose between his father and mother as the custody right holder or the support right holder.
On the Decree No. 4/Pdt.G/2012/PN.BLI, cases of divorce between Germany woman and Indonesian man, has been settled that the child from this marriage is on the support of his mother.
In practice, judge’s concern and consideration on deciding which party who has the right to get the custody right is adjusted to the best interest of the child himself.
As mentioned on the jurisprudence the Decision of Supreme Court No. 906K/Sip/1973 on June 25th 1974, that the child’s interest has to be used as the standard on deciding who is going to be given the child support.
This determination of child custody right will be effected to the child’s nationality, because for the child under the age of 18 (eighteen) from the mixed marriage has the right to get the nationality from both of his parents or also known as dual nationality and when the child has reached the age of 18 (eighteen), he or she had to choose one of his nationalities.
However, if the divorce happens, where the mother is Indonesian and the child is still under the age of 18 (eighteen), for the child’s own good or as his/her mother’s request, the government must take care of the Indonesia citizenship for the child.
That matters are regulated on the Article 29 (3) Child Protection Laws that stated:
In a case of divorce as stated in (2) above where the child is not capable of making such a decision, and the child’s mother is a citizen of the Republic of Indonesia, then in the interests of the child and at the request of the mother, the government is required to provide the child with citizenship of the Republic of Indonesia.
Therefore, we can conclude that there is a huge possibility that the child custody right in mixed marriage will determine the child’s nationality in the future.
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Translated by: Windi Saptarani