Worried about Child Custody before Seeking Divorce

[tehhijau]

I am a US citizen (wife) married to an Indonesian citizen (husband) with a 2 year old daughter that has dual citizenship. I'm at the point of wanting a divorce from my husband, but am worried about what could happen to our daughter in the process.

My daughter and I have been in the US since October. My husband is still in Indonesia. He consented to us coming to the US and staying here in order for me to look for work to support us.

I love my daughter so much and have always been her caretaker. I have also always been the only source of income for us, as my husband chose not to work.

In seeking to end the relationship, what would be my best course of action to ensure that custody of our daughter remains with me? And what should I prepare in advance?

If we simply stay in the US, is there anything he can do? Could he claim I took our daughter against his will and try to gain custody of her? Is that possible?
If I do apply for a divorce in Indonesia, would there be much likelihood of my husband gaining custody over her through the courts?

One note: we were married Christian, not Muslim.

Thank you for any information and advice.

[marcus]

Just now I don't know what to say because I never heard any case similar to yours . I will search more about later .


http://www.expat.or.id/info/divorce-...donesia.html (About divorce)

http://www.livinginindonesiaforum.or...079#post264079 (post no.5 , reasons for divorce)

http://infocerai.blogspot.com/2011/0...persiapan.html (Divorce info)

http://www.livinginindonesiaforum.or...strative-costs (About divorce)

http://informasikkc-infohukum.blogsp...-pasangan.html (Divorce of a mixed marriage)

http://www.expat.or.id/info/childcus...donesia.html (child custody)

http://www.livinginindonesiaforum.or...orce..now-what (divorce , children custody)

http://www.livinginindonesiaforum.or...Marriage/page2 (Muslim divorce - children with father if mother not Indonesian)

Note : Easy translation at Google Translate

[marcus]

(1) ...In seeking to end the relationship, what would be my best course of action to ensure that custody of our daughter remains with me?

(2) And what should I prepare in advance?

(3) If we simply stay in the US, is there anything he can do?

(4) Could he claim I took our daughter against his will and try to gain custody of her? Is that possible?

(5) If I do apply for a divorce in Indonesia, would there be much likelihood of my husband gaining custody over her through the courts? ...

(1) I don't know . Maybe you could ask him to live with you in US and take care of the child when you work .

(2) Maybe you could come to Indonesia to make a notarized agreement with him , it could be a post-nuptial agreement that you could register with your Indonesian marriage certificate (assuming you married him in Indonesia) . This way maybe you would avoid the uncertainty of the divorce's judges decision .

(3) If you don't come to Indonesia for more than 2 years , he can get a divorce in your abcense (in the divorce process, I guess it is possible that the judges may give the custody of your child to your ex-husband) . I don't know if there are other things he could do .

(4) I don't know , I made a quick search for "hukum istri meninggalkan suami dengan anak" but didn't find specific Indonesian Law/Regulation about that . But I guess that , because your child has dual citizenship , you need to check Laws/Regulations in both countries .

(5) Low probability if in normal situation and if he is not from an influential family , I guess .


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From http://www.kpai.go.id/artikel/hak-as...g-tua-bercerai , March 2014
KPAI = Indonesian Child Protection Commission
Note : This is not an official translation

[In cases of divorce between the two parents (who are of different nationalities) in Indonesia whether those that are decided by the District Court (for non-Muslims) or decided by the Religious Courts (for Muslims), the Court will still use Law No. 1 of 1974 concerning Marriage and PP No. 9 of 1975 ...

Therefore the provisions of both the issues of divorce and custody (child care) are stated in Article 41, Article 45, Article 47 and Article 48 of Law No. 1 of 1974 (Marriage Law) , as follows :

Article 41
As a result of the breakup of marriage because of divorce:
a. Both the mother and father are still obliged to care for and educate their children, solely based on the interests of the children, if there is a dispute regarding who will be the main reponsible for the children, the Court gives a decision.
b. The father is responsible for all the maintenance and education costs needed by the children, even if he cannot comply with this obligation, the court can determine that he has to bear the costs.
c. Courts can require ex-husband to provide livelihood costs and / or determine other responsibilities in benefit of his ex-wife.

Article 45
(1) Both parents must maintain and educate their children as well as possible.
(2) Parental obligations referred to in paragraph (1) of this article are valid until the child marries or can stand alone and these obligations apply even though the marriage between the two parents breaks up.

Article 47
(1) A child who has not reached the age of 18 (eighteen) years or has never held a marriage is under the control of his/her parents as long as they are not revoked from their power.
(2) Parents represent the child regarding all legal actions inside and outside the Court.

Article 48
Parents are not permitted to transfer rights or duplicate permanent property owned by their child who is not 18 (eighteen) years old or has never been married, unless if in the child's benefit.


To whom custody will be granted, based on Article 41 of Law No. 1 of 1974, will be given to a joint custody only if there is a dispute regarding that, the court will decide to whom the custody will be given. However, the norm for both the District Court and the Religious Court is to pay attention to the best interests of the child. In the District Court there are no strict arrangements regarding custody, but custody of young children is usually given to the mother...

Dual citizenship is not a factor in determining the provision of custody... Although if custody is given to the mother does not mean that the father is not liable. The court will determine the amount of the father's income to the child .. for each month adjusted to the ability of the father, and also will determine when the father can meet with his child... ]

Poster's Note : For more details about the subject you can search the internet for something like : hak asuh anak akibat cerai

[tehhijau]

Thank you for all the information, Marcus. It seems like pursuing an official divorce in Indonesia may be the best path to take. I worry that staying in the US for 2 years might make the court less favorable toward granting me custody (though I have yet to determine how much power they'd have with us in the US...).

Regarding the divorce procedure, is it possible to proceed from overseas? Or would I need to go back to Indonesia in order to complete everything? If the latter, any idea how long it normally takes to deal with divorce proceedings?

I'll try and find more information regarding post-nuptials as well.

Thanks again!

[tehhijau]

I guess I should ask as well if people have a divorce lawyer they'd recommend.

[marcus]

(a) ... Regarding the divorce procedure, is it possible to proceed from overseas? ...

(b) any idea how long it normally takes to deal with divorce proceedings?

(c) I'll try and find more information regarding post-nuptials as well.

(d) ...I should ask as well if people have a divorce lawyer they'd recommend.

(a) I don't know if somebody could represent you with a "Surat Kuasa"/Letter of Authorization .

(b) It also depends on how busy the Court is , but I guess it can be decided in just 1 session (you make a request , some 2 weeks they send letters to you and the husband defining a day to meet at the Court , if everything is already agreed , maybe , it is finished - otherwise the judges may still ask for 1 conciliation meeting some 2 weeks latter , then 2 weeks more another session with the judges , then if agreed , finished . But if the husband doesn't agree I think at least 3 conciliation meetings are required . The divorce document takes some 40 days to be issued .

(c) When I made a prenup , many notaries had a "standard" version in which they just put the personal data in it and its done (starting from around US&45) . So as a post-nup may be different in just the name , it can be as simple as that (unfortunately post-nuptial agreements became feasible only recently , so not many notaries are willing to issue it , making it more expensive just because of that) . Otherwise you can choose a sample in the internet and made it with your own wording , but of course it will cost some 4 times more .

(d) I think that if you and your husband agreed there is no need to hire a lawyer . I don't know any , but there is this one which is one of this Forum sponsors : http://www.wijayaco.com/services/item/5-foreign-divorce


http://www.expat.or.id/info/postnupt...indonesia.html

[marcus]

made some more search in the internet :

(a) It seams possible , taking this as example :
From https://megapolitan.kompas.com/read/...ian-pada-hakim , 07 Feb 2018
[Divorce lawsuit of former .. Jakarta Governor Basuki Tjahaja Purnama alias Ahok against his wife, Veronica Tan, in the North Jakarta District Court on Wednesday (02/07/2018), only lasted 15 minutes. The divorce hearing was only attended by Ahok's younger brother and attorney, Fifi Lety Indra, and his lawyer, Josefina Agatha Syukur. Veronica or her representative was not present at the hearing and only left a letter to represent her presence. "At the core of the letter, Mrs. Vero could not attend and stated that, like the first letter, he gave all the decisions to the judge's discretion," ...Ahok registered a divorce suit against Veronica on January 5 to the North Jakarta District Court.]

(b) By the dates of the article above , the process took around 1 month , but maybe you need to consider that a process involving public people is not a normal process .

(d) You can search the internet for something like : advokat pengacara cerai pengadilan negeri di (city) . See below some :
https://advokatkita.com/layanan-konsultasi/ (free legal consultation for Indonesians)
http://www.biropengacaraperceraian.com/ (Jakarta - free consultation)
https://smartlegal.id/tentang-kami/ (jakarta , Surabaya , Makassar , Malang)
Tanya@smartlegal.id
https://kantorpengacara.co/hubungi-kami/ (Jakarta , Surabaya)


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From http://www.rifka-annisa.org/id/berit...tempat-menikah

[...Divorce claims for non-Muslim couples can be made in the District Court. In accordance with Article 20 paragraph (1) PP No. 9/1975, that a divorce lawsuit is submitted by a husband or wife, or his/her proxy, to a court whose jurisdiction covers the residence of the defendant. Thus, if the husband sues for his wife's divorce, the husband must submit an application to the court in the area where his wife lives at the time, and vice versa. However, if the defendant's residence or residence is unclear and unknown or mobile, the divorce lawsuit can be submitted to a court in the plaintiff's residence...]

[tehhijau]

Thank you so much for all the information, Marcus. I'll take a closer look at it to see what my options might be. I think best case scenario would be if my husband and I can come to a written agreement to present to the court. With only one court appearance it seems like it shouldn't take more than a month, right?

[marcus]

(I) ... I think best case scenario would be if my husband and I can come to a written agreement to present to the court.

(II) With only one court appearance it seems like it shouldn't take more than a month, right?

(I) I agree .

(II) If the judges are not too busy or other out of normal event , maybe . But the divorce document will probably take longer than one month more to be issued .

[hawk1024]

No way to predict the judgment of an Indonesian court but Indonesia is not a party of the 1980 Hague Convention and therefore has no agreement with the US for assistance of any kind of child custody issues. I do not condone attempting to circumvent a court ruling, especially when a child is involved but good or bad this is an international agreement that Indonesia chose not to be a part of. This fact has been used against me in a US court so I am, unfortunately, familiar with the rulings involving the Hague Convention. Best of luck to all parties involved.

[tehhijau]

marcus , I see, thanks again.

hawk1024 Thanks for your input. I had seen that Indonesia isn't party to the Hague Convention. I'm so sorry to hear that's been used against you. What worries me is going to Indonesia in order to deal with the divorce process and opening up that possibility. I've now told my husband my wishes and that I'd like to arrange to have our daughter visit him in Indonesia for some amount of time every year; assuming the court rules in my favor custody-wise he'd be legally obligated to return her to me so I'd feel safer letting her visit. I hope we'll be able to reach an agreement between us, otherwise I'll feel very uncomfortable entering Indonesia for the fear of not being able to bring my daughter out again.