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.
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.
Our thanks to Mr. Asep Wijaya of Wijaya & Co for sharing this article!