Divorce is one of the miserable thing considered in the society. Wives and the husbands have to see many things while planning for divorce. They need to see multiple things while planning a mutual decision of the divorce. The main thing to ponder is the custody of children for both husband and wife.
Basically when the divorce is planned than there comes the question of the custody of the children.
Perhaps international custody basically based on the child’s national law which was regulated in the Hague Convention 1902. Haag 1961, the law enacted to determine custody is based on the place where the child lives daily. This is basically a time span that is enough to adopt the environment. Basically this is the national law for the children.
There comes a question that if one of the parents dies then what is the custody of children. So the answer is responsibility automatically falls on the parent who is alive until and unless the court orders that this parent is incompetent to have the custody of the children. But the court will assign the guardian of the child.
If the child refuses with the judge the child becomes the citizen, who is at the child’s daily residence, then either the determination of custody rights or the appointment of a guardian, can file an objection to the International Court where the main focus and consideration is in the best interests of the child.
Children are legal subjects but they are not enough competent to carry out all the legal implications by themselves who are not yet capable of carrying out legal actions themselves so in this case they are guided by their guardians.
Hence, General Provisions it is determined that care is the strength of parents to care of children to educate and protect. So children should be up brought according to their religion.
When we talk about the law marriage , it is compulsory to maintain the life style of the children in a healthy way. They both husband and wife after the divorce are oblige to maintain better education and the financial needs to fulfill the health needs like (milk, food , clothes).
The courts orders to parents that what responsibility for which parent. And what cost will be afford by which parent. Also court can give the custody to any parent may be father or mother.
Read More : Hak Asuh Anak Ketika Perceraian
Custody of the child is given to the mother
In the religious courts they give the custody of the children to the mother after the divorce especially in case of infants or minors. Basically in Muslims this is in line with the provisions contained in the Compilation of Islamic Law under the article 105 which reads as follows:
- Basically it is the first and foremost fundamental right of the mother to take care of a child or children who does not reach up to the12 years old.
- The child up to the 12 years old can decide to choose which parent can have the right of care of children.
- Whether the children is under 12 or not still the father is oblige to pay his financials which consist of education or other financial needs.
Although known as an Islamic term, under 12 is a positive legal term in Indonesia which is called Mumayyiz which is defined as a child who has reached puberty or can identify between good and bad.
Scholars argues that mumayyiz is a child starting from 7 years old. However, there is an argument between the age of the children between 7 to 9 but difference between the age in the girls and boys differently. For girls it is 12 and for boys it is 9 years old.
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The terms of child custody fall to the father
Custody of the children in the case the wife ask for the divorce. Basically Giving custody of children to father is also is not a big deal. The court make that decision that is in favor of the child and at the end benefits the children.
The following are some points to ponder:
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Mutual consent
If the mother and father have already made decision after the mutual consent that child will stay with whom in the written agreement then court can grant the request on the mutual consent.
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Witness testimony
If there are witnesses who incriminate the mother in obtaining custody of the child, the judge may give the right to the father.
- Mother is not
responsible
In this case mother could lose the custody of the child when the judge looks that mother is not enough capable to handle the child properly. So in this case court can orders to give the custody of child to the father. But still there are various reasons that is why
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Economic factors
In this if father is financially better the custody can be given to the father while looking into the situation in divorce.
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Closeness to father
If children who are old enough so they can choose to be with their father because of their closeness then the custody can be given to the father.
Declaration of child custody
Basically when we talk about the custody of children whether to father or mother in the case of divorce there is a need of having the custody statement of child. This statement perhaps tells or give the proofs that you that the authority means custody. So this statement pursuits you that no one can go against the authority.
This letter is comprises of name of the husband and wife their id card number, age , religion, address.
One can download and view a sample letter of declaration of child custody through the official website named” Department of Population and Civil Registration” for the particular region. The information helps the people who are getting the divorce or planning the divorce.
