When parents separate, the hardest question is often not who gets the house or how the bank accounts will be divided. It is usually this: Who will care for the child?
In Indonesia, child custody is not supposed to be a prize awarded to the parent who argues best. The law treats custody as a responsibility. A child needs safety, care, education, emotional support, and a continuing relationship with both parents whenever that relationship is healthy and safe.
Indonesia does not have one single “new child custody law” that answers every situation. Instead, custody is governed by a group of laws and regulations, including the 1974 Marriage Law, the Child Protection Law, and several Government Regulations. The courts also consider the child’s best interests when deciding disputes.
In this essay, I will explain how the rules work and what you can do if you are facing a custody issue.
The 1974 Marriage Law Starts with Shared Responsibility
The main legal foundation is Law No. 1 of 1974 concerning Marriage, as amended by Law No. 16 of 2019. Although the law regulates marriage and divorce, it also sets out important rules about children after a marriage ends.
Under Article 41, divorce does not erase the responsibilities of either parent. Both the father and mother remain responsible for caring for and educating their children. The court must decide these matters based on the child’s best interests.
The article also provides that the father generally remains responsible for the child’s living expenses, education, health, and other needs. The court may determine the amount of support and may impose obligations on the former husband or former wife as appropriate.
This is important because custody and financial support are connected, but they are not the same thing. A parent may have physical custody of the child, while the other parent may still have a legal duty to provide financial support. Likewise, a parent who pays support does not automatically receive the right to control every decision about the child.
The law also recognizes the continuing duty of parents under Article 45. Both parents must maintain and educate their children as well as possible. This duty continues even if the parents divorce. It does not end simply because the child lives with one parent.
Under Article 47, parents generally have authority over children who are under eighteen years old or have not been married. That authority includes making decisions for the child, managing certain matters on the child’s behalf, and protecting the child’s welfare. However, parental authority is not a license to act selfishly. It must always be exercised for the child’s benefit.
Custody Is Not Automatically a Mother’s or Father’s Victory
People sometimes say that young children should automatically live with their mother or that fathers should automatically receive custody because they are the financial providers. Neither statement is an absolute rule.
In practice, courts may consider the child’s age, daily care arrangements, emotional relationship with each parent, safety, education, health, stability, and the ability of each parent to provide proper care. The court may also consider whether one parent has neglected, abused, threatened, or manipulated the child.
For Muslim families appearing before the Religious Court, Article 105 of the Compilation of Islamic Law commonly provides that the mother is ordinarily entitled to care for a child who is not yet mumayyiz, generally understood as a child under twelve years old. The father remains responsible for maintenance. Once the child reaches the relevant age, the child may choose between the father and mother, subject to the court’s decision.
Even this rule is not a free pass for either parent. If the mother is unable to provide safe and proper care, or if the child’s circumstances have materially changed, the court may consider placing custody with the father or another suitable caregiver.
The court’s central question should remain practical: What arrangement protects this particular child?
The Child Protection Law Puts the Child First
The Child Protection Law, beginning with Law No. 23 of 2002, as amended by Law No. 35 of 2014 and later legislation, adds a broader rights-based framework.
The law defines parental authority as the power to care for, educate, maintain, protect, and develop a child according to the child’s religion, abilities, talents, and interests. This means custody is not only about where the child sleeps. It includes the daily responsibilities of parenting.
Under Article 26, parents are responsible for caring for, educating, and protecting children; developing children according to their abilities, talents, and interests; preventing marriage at an early age; and providing character education. These responsibilities remain important even after divorce.
The Child Protection Law also recognizes that children have rights to grow and develop, to receive protection from violence and discrimination, and to express their views. Article 14 recognizes a child’s right to be raised by their own parents, unless separation is necessary for the child’s best interests. Even when parents are separated, a child should generally maintain personal contact and a relationship with both parents, unless contact would place the child at risk.
That last point deserves attention. A parent should not casually cut the other parent out of the child’s life. Using custody to punish an ex-spouse may feel satisfying for five minutes, but it can harm the child for years. If contact is unsafe because of abuse, threats, addiction, or serious neglect, restrictions may be necessary. Otherwise, the healthier approach is to build a clear parenting arrangement.
The child’s opinion may also matter, especially when the child is mature enough to express a meaningful preference. The child should not be forced to choose sides, but the court can consider the child’s wishes together with the wider evidence.
Government Regulation No. 9 of 1975: The Divorce Procedure
Government Regulation No. 9 of 1975 implements parts of the 1974 Marriage Law. It sets out procedural rules for divorce applications in the General Court and Religious Court systems.
This regulation matters because custody issues are often handled alongside divorce proceedings. A parent may request the court to determine who will care for the child, how support will be paid, and how the other parent may maintain contact.
The court does not simply issue a divorce certificate and leave the family to fight afterward. Where custody, maintenance, or child welfare issues are raised, the court may examine evidence and include related orders in its judgment.
You should therefore raise custody and support issues clearly in the case. Waiting until the divorce is finished can create additional complications, especially if one parent has already moved the child, withheld contact, or stopped paying support.
Government Regulation No. 44 of 2017: Caring for Children
Government Regulation No. 44 of 2017 concerning the Implementation of Child Care provides a more detailed framework for child care. It is not limited to divorce disputes between biological parents. It also addresses the wider child-care system, including family-based care, foster care, institutions, and government responsibilities.
The regulation emphasizes that children should receive care in a family environment whenever possible. A child should not be placed in institutional care merely because the parents are in conflict or facing economic difficulty. The preferred approach is to protect the child’s relationship with safe and capable family members.
This regulation is useful because custody is not only a private battle. The government has a duty to ensure that children receive proper protection and care. Social services, child-protection institutions, and authorized agencies may become involved when a child is abandoned, abused, or cannot safely remain with either parent.
Government Regulation No. 78 of 2021: Special Protection for Children
Government Regulation No. 78 of 2021 concerning Special Protection for Children implements the Child Protection Law, particularly provisions concerning children who need special protection.
This regulation covers children facing situations such as violence, exploitation, neglect, disaster, conflict, trafficking, and other serious risks. In a custody dispute, it becomes especially relevant if there are allegations of domestic violence, child abuse, sexual abuse, severe neglect, or exploitation.
The regulation supports a stronger protection approach. The court and relevant authorities should not treat custody as an ordinary contest between parents when there is evidence that the child may be in danger.
If you believe the child is unsafe, document the facts and report them through the appropriate channels. Medical records, police reports, school records, messages, photographs, witness statements, and social worker assessments may become important. Do not make serious accusations without evidence, but do not stay silent when a child is at genuine risk.
Adoption and Alternative Care Under Government Regulation No. 54 of 2007
Government Regulation No. 54 of 2007 concerning the Implementation of Child Adoption is also relevant to the wider custody framework. Adoption is not a shortcut for solving a divorce dispute. It is a formal legal process intended to protect a child who needs permanent family care.
An adoptive parent does not simply receive custody through a private family agreement. The adoption must follow legal requirements and the child’s best interests. Informal transfers of children between relatives may create serious problems later, particularly involving inheritance, identity, education, health decisions, and parental authority.
If a child is being cared for by grandparents, relatives, or another family, you should clarify whether the arrangement is temporary care, guardianship, foster care, or adoption. Each arrangement has different legal consequences.
What You Can Do If You Are Facing a Custody Dispute
First, focus on the child’s routine and stability. Prepare a realistic proposal covering residence, school, medical care, holidays, communication, transportation, and financial support. Courts respond better to practical plans than emotional accusations.
Second, keep evidence showing your involvement in the child’s life. School records, medical information, expense records, messages, and proof of daily care can help demonstrate your commitment.
Third, do not block communication without a serious reason. If the other parent is safe, reasonable contact usually supports the child’s welfare. Use written communication and keep the tone calm. Your messages may later be reviewed by a court.
Fourth, separate adult conflict from parenting. Do not use the child as a messenger, spy, negotiator, or weapon. Do not pressure the child to reject the other parent. That behavior can damage the child and may also weaken your legal position.
Fifth, consider mediation. The court may encourage the parents to reach an agreement. A parenting agreement can be more flexible than a rigid court order, provided it protects the child and is legally recognized.
Sixth, seek help quickly if there is violence or immediate danger. Contact the police, local social services, the Women and Children Protection Unit, or a qualified advocate. Safety comes before cooperation.
Finally, speak with an Indonesian family-law advocate or, where appropriate, a legal aid organization. The correct court, legal procedure, and evidence will depend on the parties’ religion, marriage registration, residence, and the exact facts.
Conclusion
Indonesia’s child custody system is built around one central idea: the child’s best interests must come first.
The 1974 Marriage Law keeps both parents responsible after divorce. The Child Protection Law recognizes the child’s rights to care, protection, development, and a continuing relationship with parents. Government Regulation No. 9 of 1975 provides the divorce procedure, while Government Regulation No. 44 of 2017 supports family-based child care. Government Regulation No. 78 of 2021 strengthens protection for children facing serious risks, and Government Regulation No. 54 of 2007 regulates adoption.
So, if you are dealing with custody, do not ask only, “Who wins?” Ask instead, “What arrangement gives this child the safest, healthiest, and most stable future?”
That question reflects both the spirit of Indonesian law and the kind of parenting children deserve. The law can decide custody, but you guys should remember that the real goal is not to defeat the other parent. It is to protect the child.
My name is Wijaya, writing for Wijaya & Co. We orchestrate to assist you navigate. Thank you for reading my posts.