• +62 8128 2128 999
  • aw@wijayaco.id
  • +62 8128 2128 999
  • aw@wijayaco.id

Child legalization in Indonesia is the only way to recognize your child born out of wedlock. This proceeding is a must-have in order to build a relationship between a father and the child. It's giving him a paternity privilege. This thing means a lot to both of them, and covers so many aspects in their lives. The proceeding is to get a DNA test as the primary scientific instrument to take a stand in the court litigation. On one side, it shall be the legal basis for the paternity claim to the court of law in Indonesia. But on the other side, DNA tests may become the potential shadowing procedure in getting a child legalized by a father. 

Read on and I will tell you what you should know.

Your Marriage First

According to Article 2 (1) Marriage Law number 1 of 1974, your marriage will only be legally recognized if it was officially registered. We have two marriage registries in Indonesia i.e. Civil Registry, and Office of Religious Affairs. The date when your marriage is officially registered will be the date of your marriage. In the event your child’s date of birth was before the marriage date, she/he is an out of wedlock child, even though she/he was born after the religious ceremony. It is the registration date that counts. Therefore, your marriage is not legally recognized according to state law. Any child conceived shall be an illegitimate one. 

So, your marriage must come first before the child, and it must be officially registered with the government's marriage registry. Therefore, your marriage is the foundation of your family. Just like what they said: your marriage first!

Your Child Comes Thereafter

In the event your child was born before the marriage officially registered, legally speaking she/he is an illegitimate child. The child is not a legitimate one according to Article 42 of the Marriage Law. A legitimate child is one who was born into its parent legal marriage. 

In another word, your child is an out of wedlock and therefore will only have a legal relationship with its mother and her family. No paternity privilege being established under this situation. Not yet. This is governed under Article 43 (1) of the Marriage Law. The only way to do so is through the biological mother. She needs to consent the child legalization. 

The Procedures

The Civil Code has imposed that in order to legitimize the child, both husband and wife need to perform child legalization. Article 274 of Civil Code further stipulates that the same rules and regulations shall be applicable to both the legitimate and illegitimate after the legalization proceeding is fully completed. 

The procedures started by getting an acknowledgment of the child by the father. He acknowledges the child as his flesh and blood, and therefore shall be willing to accept the responsibilities as a father. As part of the acknowledgement, he also allowed the child to use his family name. In some parts of the world, you need to use the same last name in order to be entitled to some privileges. 

On the other hand, the mother consents the legalization proceedings. She also needs to confirm that the child receives support from the father on a daily basis. The most important part is that she needs to confirm that the child is his. This is essential as her affidavit shall be supported with a DNA test. This is the primary procedure that has been shadowing the child legalization proceedings.

What If You’re Not Married?

If you’re not married, you can also conduct child legalization. You need to get a court to approve this case. This is quite a tricky process as you only have one bite of an apple. You need to get the process a success in the first place, otherwise they will throw the case out and you’re stuck in limbo.

Your child also needs legal protection by getting legal recognition by his/her parents. It’s reflected on his/her birth certificate with the complete parents’ name. The child born out of wedlock, they cannot have this. The child only has his/her mother’s name on it. This is awkward because you must have both parents otherwise it won’t work. The fact is, a father’s name is not printed on the birth certificate. You need to have your name as a father otherwise your child is not recognized legally. 

Article 43 (1) of 1974 Marriage Law allows the child born outside of legal marriage to have paternity relationship with the alleged man as his/her father. Thanks to the breakthrough decision by the Constitutional Court in 2010. I have assisted more than a dozen cases in doing so during my time as an attorney. This is not something you see everyday, but it’s happening here in our lives, and our legal system is perfectly well in getting the proceeding completed. 

My name is Asep Wijaya. Thank you for reading my posts!

 

Published in Library

A guardian is a person or legal entity that perform the duty of child custody as a parent toward a child. He/she is entitled to represent it in or outside the court. The idea of having a guardian is to protect the child rights and to fulfil their basic necessities as well as to manage their assets to the best interests of the child. 

The Subject

The legal age in Indonesia is 18 years old. Any child under that age is under a guardianship of its parents or guardian. In the event its parents are unable to take that responsibility, any other party may step forward in carrying the job. Other family members may be able to replace the parents's job by meeting certain criteria. 

Article 50 (1) of the Marriage Law imposed that children who are not under the age of 18 or have never entered into a marriage, that are not under the authority of the parents, are under the authority of a guardian. The guardianship concerning the child's private matter and its property. Furthermore, the guardian has the responsibility in taking care the child as well as its property at his best by respecting the child's religion and belief. 

Are You Qualified?

Furthermore, according to the Procedures of Guardian Appointment of 2019, you may be a guardian of a child only if you meet the following capacity:

  1. Family of the child;
  2. Relatives;
  3. Other parties; or 
  4. Legal entities. 

The above parties can only become the guardian in the event the parents of the child are not longer available to do the job, their whereabout is unknown, or due to any specific reason they are unable to perform their duties. Those parties may step forward in the event the case meet the above situation.

The family of the child shall become the first priority to be appointed as the guardian. In this case, the family shall refer to as the smallest unit in society consisting of husband and wife, or husband and wife and children, or father and child, or mother and child, or blood relatives in a straight line up or down to the third degree. The relatives of the child may replace child's family in the event they are not willing to take the job, unknown, or they are not qualified as a family of the child. The same way goes to the next party.

Required Consent

The consent required is from the Social Ministry in the form of a recommendation. This requirement is similar when you're conducting an adoption application. The social worker will perform assessment to the person or legal entity being appointed to become a guardian. 

This may be the bottleneck in application for the guardianship at the court. But it may be a new standard operating procedures to monitor the duties of guardians. The state presence is reflecting in reviewing, and supervising the duties performed by the guardian. Regular reports and updates serve as the monitoring instrument in conducting the guardianship duties.

The End of It

The guardianship end when your case meet the following situation:

  1. The child reaches the age of 18;
  2. The child passes-away;
  3. The guardian passes-away;
  4. The legal entity guardianship files for bankruptcy.

 Your authority as the guardian, may also be revoked by the court. The revocation is due to the situation as follows:

  1. Neglecting your obligations as a guardian. As a guardian, your authority may be revoked if you're neglecting the child under your care;
  2. You're incompetent in performing any legal action. The incompetency must be reviewed by the court and an application must be submitted so they are able to reconsider your position as a guardian. This is a big case. You need to make sure you have enough evidence to turn back the ruling;
  3. Abusing your authority as a guardian. This has something to do with the management of the child's assets. This is a serious violation. They may not be able to revoke you as the guardian, but may also file complaint against you;
  4. Committing acts of violence against children under his/her care. Conducting duties as a guardian is not easy. This is similar with becoming a parent. They said it's the hardest job you'll ever love. But do you? 
  5. Parents are considered able to carry-out the obligation. When the child's parents are back on their feet and able to do the their jobs, the guardianship may be revoked and the court return the authority to them. 

 My name is Asep Wijaya. Thank you for visiting my blog and reading my posts!

Published in Library

Origin of a child in Indonesia is a procedure to legalize your offspring and you through a strict legal mechanism in order to recognize the child legally. This is the procedures that protected by our 1945 Constitution as imposed on Article 28B (2): "Every child has the right of survival, growth, and development, participating and entitled to protection from violence and discrimination as well as civil rights and freedoms."

The implementation of the constitutional protection for the child is with the Child Protection Law of 2014 stipulates that the child has the right to know its parents. If you were married in a legal and recognized way, the child will not be having difficulties to access its rights under the laws. Nevertheless, if you were not legally married, the child will have problems in recognizing its rights and their access will be denied.

Before we go further in getting to review the offspring origin within Indonesia's legal system, you need to identify the type of child status according to our prevailing laws and regulation, as follows:

Legitimate Child

Article 42 of 1974 Marriage Law stipulates that a legitimate child is a child born within or as a result of a legitimate marriage. A legitimate child can also be born of the results of both spouses actions outside of his wife's womb.

The latter is pretty advanced ruling as this may be interpreted to include babies born using an artificial uterus or womb or even through a surrogate mother. Although, the last one is not considered legal yet according to the health regulation in Indonesia.

I am here not to discuss methods of how babies are born. That's not really my department. I am putting those mechanism just to bring those to your attention that such things exist and what the laws think about it.

Let's carry on!

Child Born Out of Legal Marriage

According to the decision from the Constitutional Court number 46/PUU-VIII/2010 dated 17 February 2012 on the amendment of 1974 Marriage Law especially Article 43 (1) imposed that a child born out of wedlock has civil law relationship with its mother and her family as well as with the alleged man as the father to the extent of the scientific evidence and/or other evidence according to the laws have blood relationship, including civil relationship with his family.

According to the records of the court, the marriage of the parent was not registered or recorded. It means, the marriage was not legal. But previous marriage has been conducted but did not performed legally according to the Marriage. Therefore, the couple did not receive any marriage book or marriage certificate. 

As for the evidence, you need to supply DNA test that shows you are not excluded as the biological father. It must shows 99.99%. Well, you can put as many as "number 9" on the results. It just give you more bonafidity as the alleged father. So, the more "number 9" on the DNA certificate, the better.

Child Born of Adulterous Relationship

The relationship between the woman and the man who got her pregnant is without any marriage. The child has no legal relationship with the father and his family. Its only has relationship with its mother and her family. Therefore, the child is not able to inherit from its father, nor its can inherit to its father.

On the other hand, the man who got its mother pregnant has legal obligation in supporting the child financially, and to facilitate the child to inherit from his own last will.

In the event the woman is in marital relationship with her husband, and the man who got her pregnant claims the child as his, the law imposed that the child belongs to the woman's husband. Unless, if he denies the child. He may file an application to the court to deny the child and declare the child born of its mother's adulterous relationship.

Those three types of child legal status determine your situation and its level of difficulties in working with the legal system. I am not to say that one child may be better than the other. They have every rights to be legally protected, and the protection starts when you are there as their parents to support them, to feed them, to nurture them, to educate them, to teach them to get back on their feet after they felt, and to teach them to stand on their own.

You know, all the things a father would do for his child. 

My name is Asep Wijaya. Thank you for visiting my blogs and reading my posts!

Published in Library

Guardianship of a child in Indonesia is a challenging issues. Not only this is the most important part in family and matrimonial law practice, such as adoption cases, divorce cases, and custody disputes. It also plays substantial role in general civil law, such as how a judge determine a child's guardian in representing him/her in all of her legal affairs. 

What is Guardianship?

Article 47 of 1974 Marriage Law stipulated that children under 18 years old or have never been married, are under their parent’s authority. The parent represent them in and outside of the court room. The parental authority may be revoked by the court or may also be removed voluntarily and assigned to other individual. Parental authority is the term set-out in the laws in Indonesia.

It also known as Child Custody. Different terms but discussing the same thing in common. The terms have a very broad meaning: representing the child inside or outside of the court room. This include the whole legal matters involving the child's life such as property, inheritance, other legal matters such as immigration, passport and visa application, schooling, etc. You practically a parent already, minus motherhood. This slightly easier as it does not involve emotion, but still with the same chemistry.

It Is Transferable

The good news is, the guardianship of a child is transferrable. When parent is no longer in the position to perform his/her job, other people, preferably family members may replace them as a guardian of the child. The guardianship of the child may voluntarily appointed by the parent. The person may accept it or he/she may refuse it.

Being a parent indeed is not an easy job. It is the most beautiful thing and yet the hardest job in the world. So, you're excused if you think you won't be able to do it properly. Child Protection Law of 2002 stipulates that in the event of a parent is absent, or unknown, or for some reasons unable to perform his/her duty and responsibility, the job is transferable to other family member. A guardian may be appointed to do the job. They must be same blood family to three degrees upline, such as grand father, grand mother. They can also be three level down line.

The Criterias

When you live with a child and it's not yours, and the parents of the child are still alive, and they don't live with the child physically, legally you are his/her guardian. Local government may require you to have a guardianship document because legally you are responsible for his/her wellbeing. You need to do this to avoid any potential abduction charges incurred from the local rules and regulations. Therefore, you must qualify for a guardianship in the event one of the child's parents is an Indonesian citizen. 

The laws further imposed how a guardian must meet criterias. He/she must at least 18 years of age, physically and emotionally healthy, fair, honest and having a good behavior. Other family members must also be required to supply their opinions about how he/she may be able to perform his/her duty as the child’s guardian. They also have the responsibility to choose the right guardian because everybody knows everybody. This is the beauty of family emotional bonding.

It Takes a Village

They said it takes a village to raise a child. Well, I guess they were right. Hillary Clinton once wrote a book with this topic when she was the first lady of the United States. I read a part of it when I was younger. Such as an interesting book indeed! Please contact me if you wish to discuss this issue any further. Not about Hillary's book, but the guardianship issues I mean. I have some successful portfolios that you can use as reference in this field of law. 

At Wijaya & Co, we handled cases like this: transferring the children guardianship from their parents to their grand mother. Both of them are busy with their works and the grand mother lives in a different country. The guardianship order serves as an immigration clearance as well that allow the grand mother to have parental rights in regards to the furnishing of immigration paperworks. She represents the child and have the legal power to decide on the parent’s behalf, as if having someone to trust to take care of your children, legally.

I am Asep Wijaya. Thank you for reading my posts.

Published in Library

What's New!

Featured Library

More Library..

Featured Blogs

 

News & Events

More News..

Copyright © Wijayaco. All Rights Reserved