Understanding Child Custody in Divorce Cases
One of the most frequently asked questions in divorce proceedings is: “Who gets child custody after the divorce?” Does custody automatically go to the mother, or can it be granted to the father?
Legal Keluarga Law Office explains this issue in detail based on current Indonesian legal standards.
What is Child Custody?
Child custody refers to the legal right and responsibility of a parent to care for, raise, and educate their child. In the context of divorce, custody refers to who will be legally entitled to have the child live with them and make decisions about the child’s welfare.
Child custody can be granted to either the mother or the father, depending on the judge’s assessment and the evidence presented in court.
Child Custody If the Wife Files for Divorce
There is generally no major difference in the approach to child custody between Religious Courts (for Muslims) and District Courts (for Non-Muslims). Most courts base custody decisions primarily on the child’s age.
If the child is still underage (not yet mature), the mother is typically granted custody—especially in cases where the wife initiates the divorce.
Custody in Islamic Divorces (Religious Court)
For Islamic marriages, Article 105 of the Compilation of Islamic Law (KHI) applies:
“Custody of a child under 12 years old shall be granted to the mother, unless the child chooses otherwise once they are above 12 years old.”
Thus, if the child is 12 years or older, they have the legal right to choose whether they want to live with their mother or father.
Custody in Non-Muslim Divorces (District Court)
For non-Muslim couples, there is no specific statutory law governing custody, so judges often refer to jurisprudence (case law).
One key precedent is the Supreme Court Decision No. 126 K/Pdt/2001 (August 28, 2003):
“In divorce cases, custody of a minor child should be given to the parent who is closest and most bonded to the child, which is usually the mother.”
Indonesian law defines a minor as someone under 18 years of age, based on Article 50(1) of Law No. 1 of 1974.
Is Age the Only Factor in Determining Custody?
Not always. While age is an important factor, judges must also consider the best interests of the child.
Courts may deny custody to the mother if there is evidence of:
- Neglect or abandonment
- Alcohol or drug abuse
- Domestic violence
- Mental illness or instability
- Criminal behavior or imprisonment
If these issues are proven in court, the judge may transfer custody to the father instead.
Can a Father Get Custody of the Child?
Yes. A father has the legal right to claim custody, especially if it can be proven that the mother is unfit or unable to ensure the child’s safety and well-being.
Legal basis:
- Article 156(c) KHI (for Religious Court cases):
“If the parent with custody cannot ensure the child’s physical and mental safety, custody may be transferred to another eligible relative.”
- SEMA No. 1 of 2017 (Supreme Court Circular):
“Custody can be granted to the father if it promotes the child’s development and well-being, especially when considering the child’s interests and preferences.”
Father’s Rights If He Does Not Get Custody
Even if the mother is granted custody, the father still retains visitation and communication rights. The mother is legally obligated to allow the father access to the child.
This is regulated by:
- SEMA No. 1 of 2017
- Plenary Room Decisions of the Religious Chamber (2012–2019)
If the mother denies access, the father can file a custody revocation lawsuit, arguing that the mother’s actions harm the child’s well-being.
Legal Basis from the Child Protection Law
Article 30 of the Child Protection Law:
“Parents who neglect their responsibilities may be subject to court-supervised monitoring or may have their parental authority revoked.”
Requirements to File for Child Custody in Court
To file a child custody request in court, you will need:
- Plaintiff’s ID (KTP) Or Passport
- Defendant’s complete address
- Child’s birth certificate
- Marriage book (KUA) for Muslims / Civil Marriage Certificate (Disdukcapil) for Non-Muslims
- Divorce certificate and final court decision (if already divorced)
- Two witnesses
Custody applications can be submitted during the divorce process or after divorce is finalized.
Legal Keluarga: Child Custody Legal Services
Legal Keluarga provides full legal assistance for child custody cases in both Religious Courts and District Courts. We help clients:
- File custody claims
- Respond to custody challenges
- Ensure visitation and access rights
- Reclaim custody when necessary
Need Legal Advice on Child Custody in Divorce?
📞 Phone / WhatsApp: 0813-8968-6009
📧 Email: klien@legalkeluarga.id
Let us help you protect your child’s best interests through the right legal process.
