Laws And Regulations

Child Custody After Divorce, Who Has the Right?

According to the Article on Child Protection “Child is a person who is not yet 18 (eighteen) years old, including children who are still in the womb.” Basically, every child’s rights are guaranteed and protected so that they can live, grow, develop, and participate optimally in accordance with human dignity and protection from violence and discrimination, as stated in the Articles of the Child Protection Law.

In the Child Protection Law, the term “custodial power” is known, namely the power of parents to nurture, educate, maintain, foster, protect, and develop children according to their religion and abilities, talents, and interests. As for what is meant by parents, according to this law are biological father and/or mother, or father and/or stepmother, or adoptive father and/or mother.

This means, as long as the parents are still alive, those who have the right and have custody are the parents of the child. This rule is emphasized in the Articles of the Child Protection Law which reads: (1) Every child has the right to know their parents, to be raised, and to be cared for by their own parents. (2) In the event that for some reason the parents cannot guarantee the growth and development of the child, or the child is neglected, then the child has the right to be cared for or appointed as a foster child or adopted child by another person in accordance with the provisions of the applicable laws and regulations. As for the provisions concerning the right of children to know who their parents are, in terms of their origins, it is intended to avoid breaking the lineage and blood relationship between children and their biological parents. Meanwhile, the right to be raised and cared for by their parents is intended so that children can obey and respect their parents.

Furthermore, it is stated in Article 14 of the Child Protection Law that, every child has the right to be cared for by his own parents, unless there are valid reasons and/or legal rules indicating that the separation is in the best interests of the child and this separation must not eliminate the relationship. children with their parents. From the data from the Bogor Regency Religious Court, it is known that the divorce cases that entered in 2020 almost reached 6,000 cases, and in the early 2021 quarter, there have been 2,200 cases, both divorced and divorced. In line with the number of divorce cases, it also triggers the struggle for child custody. The rise of divorce cases is dominated by continuous disputes and quarrels as well as economic factors.

This is most likely also influenced by the case of the covid-19 pandemic that hit the world, causing a lot of unemployment, loss of income, decreased sales turnover and so on which trigger disputes and quarrels in the family. The divorce taken by both parents must not injure the fulfillment of children’s rights which are also regulated by the state through the Law on Child Protection.

Divorce also does not invalidate the obligation of the father to be responsible for all the care and education that the child needs. However, the court may decide that the mother also bears the costs under certain conditions. The court also has the right to determine child custody to be given to the mother or father, especially if there is a dispute in the divorce process.

Custody of children can actually be decided in a familial way. However, in the event of a dispute due to child custody rights, the National-Scale Indonesian Child Protection Commission and the Regional Child Protection Commission that have been established in the province, district/city can assist in mediating to obtain an agreement between the divorced parties and can also through the courts.

Courts can help make decisions. Courts also help decide who is responsible for all child care and education costs. However, granting custody of children to the father can also occur in a divorce. KHI explains that a mother can lose custody of her child even if she is under 12 years old if she cannot guarantee the physical and spiritual safety of the child. If so, at the request of the relative concerned, the Religious Court may transfer custody to another relative who has custody as well.

However, the provisions of the KHI only apply to those who are examined and decided in the Religious Courts. As for people whose cases are examined and decided at the District Court, the judge can make his decision based on the facts revealed at trial, evidence, and convincing arguments. For example, in the trial it was revealed that the mother was often abusive and had a record of bad behavior such as drunkenness, gambling and so on. So in these conditions, custody can be given to the father.

The condition of children due to the rise of divorce is very vulnerable, both for physical development, as well as child psychology in their growth and development, parents should both from the mother and father side be able to restrain their respective egos and interests and be able to share love in raising children properly. in accordance with their portion and capacity in accordance with their rights and obligations as parents in maintaining the mentality of children so that they can grow and develop according to their age.