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

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

The laws and regulation in Indonesia recognize two (2) types of public and private adoption. Public adoption is applicable in the event, the child was abandoned or neglected by his/her birth family, and raised by a foster care institution managed by the government. The relevant institution in this matter is Ministry of Social Affairs. As for the private adoption, the proceeding takes place between the biological parents and the adopting parents directly. 

Adopting your step child in Indonesia can bring your family close together. You adopt your spouse's child, and legally you are family as if the child was born into your marriage. Your spouse may insist you to do it, but your willingness to do it that keep the marriage intact. You know, things a man do for his wife and his family. 

There are some pointers that you need to be aware of regarding the adoption of your step-child, they are:

Consent Required

Consent is required from the biological parents, both the child's father and mother, if the child was born into a legal marriage. In the event the child was born out of wedlock, the consent from the child's mother is a must. The mother has full authority as vested by the Civil Code as related to the child, including when the alleged father wish to acknowledge the child. The authority of the mother solely comes from the Article 284 of the Civil Code: "No acknowledgment of a natural child is, during the lifetime of the mother, notwithstanding that she may be of Indonesian descent or descended from a similar indigenous group, be accepted, if the mother does not approve the acknowledgment." I am not saying that as the alleged father of the child you don't have any right at all, you do. The Constitutional Court confirmed your rights, but you must willing to go the extra mile in order to do that. 

The Best Interest of the Child

The adoption proceeding that you are conducting is promoting the interests and welfare of the child. You must be able to prove this by supplying information that you are doing everything in your power to provide the child. You need to prove that the aim of the adoption is obtaining the welfare and protection of the child. You need to enter into a declaration that you are willing to be responsible for supporting the child on daily basis.

Habitual Residence

Basically, we pride ourselves with our nationality principle that all the Indonesian men are subject to the Indonesian law, wherever they are. This is the basis from the continental legal system. If you were married to a foreigner, your foreign spouse must use the Indonesian partner's jurisdiction and therefore a choice of forum is applicable. You may choose the jurisdiction of your Indonesian spouse through her/his domicile. This can be seen on his/her ID card. Article 14 of Administration of Population Law certifies that the ID card (so called KTP/Kartu Tanda Penduduk) is the official identity of a resident and is valid within the entire territory of the Republic of Indonesia. So, this is your jurisdiction as well as our laws do not require you to have a habitual residence to perform an adoption of your step-child in Indonesia.

Indonesia is not one of the Common Law countries that imposed you to have a minimum contact by having a residency at least for six (6) months. Nevertheless, you need to further consider about the requirements from your country of origin if they require you to have a residency in Indonesia. You may retrieve a spousal dependent visa in order to meet the requirement imposed on you regarding the habitual residence during the adoption proceeding. 

My name is Asep Wijaya. Thank you for reading!

Published in Library

The origin of a child is a legal proceeding conducted with the child born out of wedlock in Indonesia. This is to create a relationship between the child and the biological father. It happens when you conceived a child before your marriage legally registered. This may be happen for so many reasons, among others; either of you are not legally divorce when the child was born, you're both legally free to marry but think that the marriage is not for you; or you performed the religious marriage, but not the civil one. So the child comes first, and then the marriage thereafter. By law, the child has only relationship with the mother and her family. You need some extra efforts to establish the connection between the child and its father. The laws in Indonesia has set-out the way forward and it's up to you if you're willing to go the extra mile. Other people have done it, and now it's time for you to do it.

We have Article 43 (1) of Marriage Law certifying that the child has the legal relationship between both the mother, and the father as well as their families. Nevertheless, such claim must be supported with scientific evidence, and other related evidence to prove their blood connection, including civil law relationship with the family of its father. The revised version of this Article has been amended by the Constitutional Court with the verdict number 46/PUU-VIII/2010 on February 17, 2012. In another words, you need to retrieve a DNA test. The results must be 99.9999% that you are not excluded as the father of the child. Take a test of you and the child. They will take your saliva with a tiny cotton bud. It will take less than 30 (thirty) minutes, and then you can call it a day. They will let you know within approximately three (3) weeks. Nervous? You tell me. Please contact me should you need any further arrangements like this. I will certainly love to assist you with the direct direction. 

The idea behind the verdict was not only because the marriage between the biological mother and the man that gets her pregnant, but also because the blood connection between the child and the alleged father. Apart from the marriage between the two of them, the child must be legally protected. Therefore, the birth of your child must be reported to the civil registry office within 60 (sixty) days. The strict time-frame is imposed according to Article 27 of Law number 24 of 2013 regarding Administration of Population Law. You will see only the name of the child and its mother, but it is a starting point to initiate the process. The civil registry is to register the birth of your child. They don’t have any authority to prove the relationship between you and your child. You will have to do it in the court of law. At Wijaya & Co., we handle legalisation of the child born out of wedlock as part of our scope of practice. Your Indonesian attorney knows technicality like this. Get one with experience in this field. You'll get hicough-free processing case. 

Before you sign that paternity affidavit, you have to make sure that you have the consent from the biological mother. Otherwise, the process will turn sour and your application might be end-up in limbo. The consent from the mother is a statutory requirement in Indonesia. You need to secure that before the application lodged to the court. This proceeding requires both of you to work together for the best interests of the child. I am not saying that you should light the flame between the two of you again. Although this thing does not require you to get marry to each other, but at least you must be able to sit down together and talk without pointing fingers. Think you can do it? If you do, click here to give me a call or drop me an email to get our legal review about your case.

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

 
Disclaimer:
The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found anywhere in this article nor in this website. 
Published in Library

Certificate of child custody in Indonesia certifies that you are the legal holder of a custody of a child, and therefore allows you to represent him/her inside and outside the court of law. Yup, inside and outside the court room. This term has a very broad meaning. Basically, as the holder, you are the legal representative of the child for his/her best interests. You may be considered as a guardian of the child. In order to secure the certificate for the child custody some terms and conditions applied under this situation.

The child is his/her parents’ responsibility until they reach legal age. In the event the marriage has been dissolved, Indonesia recognized custody-holder parent, and non-custody parent. In best practice, joint custody is also recognized and it must be set-out with a divorce settlement entered by both parents. The court loves this. They encourage you, the parents, to discuss the well-being of your child, even though you’re divorced.

The court acknowledged the settlement reached during in-court mediation. The divorce verdict shall include the custody and parenting plan. According to Article 41 of 1974 Marriage Law stipulates that in the event the marriage dissolved by divorce, the parents have the obligation to nurture and educate the children to the best interests of their children. If there’s a dispute in regards to the custody, the court may decide the case. Remember the keyword: "best interests of the child." This should not be translated as a situation that you are the bread-winner in the family. That may help you doing your parental works to support the child financially but it may not win the custody. You may ruin your ex-spouse credibility by submitting evidence that she/he is committing sexual misbehaviour. Although, that thing may be bring the judges' attention and creates such a court-room drama, but it won't likely to make you the winner in the case. 

In pursuing a custody of your child, I suggest you need to make sure you pay attention to your child's legal rights. Law number 23 of 2002 regarding Child Protection imposed the child's basic rights as follows:

  1. Every child has the right to acquire medical services and social security according to their physical, mental, spiritual, and social needs;
  2. When the child in the custody of his parents, guardian or any other party responsible for his/her custody, the child has the right protection from discrimination treatment, exploitation, either economically or sexually, abandonment, cruelty, violence, and torture, injustice, and other mistreatment. In the event the parents, guardian or care-giver committed any form of the above-mentioned treatment, the perpetrators must be imposed weighted-sentence.
  3. Every child has the right to be raised by his/her own parents, except if there is a reason and/or valid legal regulation that the separation is being done for the sake of child's best interests and shall be made as the last resort. In the event one parent has been decided by the court as the holder of child custody, she or he is not allowed to forbid his/her ex-spouse to meet the child. The custody holder parent must give the other parent a reasonable access of visitation. 

The same legal reasoning also applicable to certificate of child custody for the child born out of wedlock. This one is specifically made for creating physical evidence of legal relationship between the mother and the child. One thing that must exist in this case: the child was born outside of illegitimate relationship. There's no legal marriage between the child's mother and the man who got her pregnant. Therefore, you need to conduct a DNA test. The consent from the biological mother must first be obtained before the proceedings is being initiated. Whatever you do, be nice. This is totally her statutory rights. You can't do it without her OK. 

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

Published in Library

Child custody in Indonesia is one of the consequences of a divorce between a husband and a wife, Divorce may be the solution for both of you. It may be your best way out, but the law suggets it can only be used as a last resort. It means both of you should work hard to keep your marrriage intact. In Indonesia, you should have enough reason to dissolve your marriage. You just can’t say: “I have enough of you! Let’s get divorce!” They won’t allow you to get divorce on this ground. Article 39 (2) of the Marriage Law stipulated that in order to get a divorce, both husband and wife must have enough reason that they will not be able to live in harmony.

There are legal grounds of filing for divorce that every divorce lawyer in Indonesia has to advise his clients with, and they have been regulated in the Marriage Law, which are, in the event one of the parties:

  1. has committed adultery, is an alcoholic, is addicted to drugs, is a gambler or exhibits other vices which are difficult to cure;
  2. has left the other spouse for two consecutive years, without consent and without legitimate reasons or the absence of reasons beyond his control;
  3. has been sentenced to imprisonment for five (5) consecutive years or a longer period;
  4. has resorted to cruelty or severe ill treatment, endangering the life of the other spouse;
  5. has developed a disability or disease, preventing from fulfilling the duties of husband or wife; or
  6. has irreconcilable differences.

For couples married in Moslem ceremony, Article 166 of Islamic Compilation Law added two more legal ground to get divorce. They are:  a. You may get divorve in the event a husband broke his taklik talak. It’s a marriage vow soon after the Moslem couples performed the marriage. If you forget about it, you may want to check the back page of your marriage book; b. Apostate.  In the event your spouse convert back to his/her previous belief, other than Islam. The above legal grounds are optional. I mean, your divorce case doesn’t have to meet all of the legal grounds. You just have to include ome of them, and supply two witnesses to take the stand at the court room. 

As for the child custody, the decision follows after the marriage has been dissolved. The custody of a child under the age of 12 belongs to the mother. Article 105 of Islamic Compilation Law imposed that a child aged 12 (twelve) has a freedom to choose between its mother or father. They tend to give the custody to the mother because they think women is the best figure to nurture the child. They are more compassionate than men. They think women can do it better than men. In short, they think the Islamic Compilation Law has maternal preference. It's also has sole custody principle that allow one parent to be a custody holder, and the other parent is a non-custody parent. But, in the field of practice those things are not always happen. They don't always do their jobs. They can be either mentally unstable, committing adultery, leaving the child at home during night time to meet friends, hang out and partying all night, or even jeopardizing the child's well-being. Those are the circumstances where you as the father may take over the custody of your child. You can’t just say that you’re financially better than your wife, and you think you deserve the custody. Our Marriage Law considered husband is a bread maker in the family. You have the obligation to support your children. This is the universal value every where, I supposed.

The ultimate consideration of having a child custody is for the best interests of the child. It's imposed by the 2002 Child Protection Law. The judges assess and measure your ability in providing what’s best for your child. Factors included in the assessments are physical and mental health, intellectuality, independence, and utmost good faith in allowing his/her ex-spouse to have parenting and visitation. In another words, you still need to talk to you ex-spouse even though you are no longer married to each other. This is for the best interests of the child. The one that meets the requirements is the most eligible to serve as custody holder of the child.

I would like to bring your attention to the court verdict number 110K/AG/2007 issued by the Supreme Court in December 2007. The holding from the court was, among others, the ultimate consideration of having child custody (Hadhanah in Arabic term) is for the best interests of the child, not merely the most normatively entitled to. The court further stipulated that even though the child was only 7 (seven) years, and the mother frequently travelling overseas and leave the child all alone by herself, while the father actually always be there for the child giving her steady and stable life, so therefore they found the father was entitled to the custody of the child. This is one of the most brilliant court's products in Indonesia, and considered as "jeopardizing" the maternal preference since the Islamic Compilation Law enacted in 1991. But I mean, apart from that, you know, you can really lose your rights in getting child custody, even though the law prefers you due to gender preference. As parents, I believe we must put ourselves behind the children's interests and put them as our priority in life. I am sure we're all love our children so very much. 

My name is Asep Wijaya. Thank you for 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. 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. 

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. 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 transferrable to other family member. A guardian may be appointed to do the job. They must be same blood family up to three degrees upline, such as grand father, grand mother. They can also be three level down line.

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 supply their opinions about how he/she may be able to perform his/her duty as the child’s guardian. They also have the responsibilty to choose the right guardian because everybody knows everybody. This is the beauty of family emotional bonding.

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 furnihsing of immigration paperworks. She represents the children 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