By: Attorney RIKHARDUS IKUN, S.H., M.H., C.MSP., C.NSP., C.LFS., C.CPr. Director of LAW FIRM JAMES RICHARD AND PARTNERS, CHAIRMAN OF THE BALI CHAPTER OF PERADI UTAMA.
I. Legal Issues
What is the legal status and custody arrangement for children born outside a legal marriage, particularly when there is a dispute between the biological mother and father regarding the child’s care, support, and visitation rights?
II. Legal Basis
1. Article 43(1) of Law No. 1 of 1974 on Marriage, as amended by Law No. 16 of 2019.
2. Constitutional Court Decision No. 46/PUU-VIII/2010, regarding the civil relationship between a child and the biological father that can be proven based on science and technology and/or other evidence admissible under the law.
3. Law No. 23 of 2002 on Child Protection, as amended, particularly the principle of the best interests of the child.
4. Applicable provisions of family law and procedural law in accordance with the parties’ respective religions, as well as the jurisdiction of the court.
III. Legal Analysis
In principle, a child born out of a valid marriage still has the right to protection, care, education, health, and proper growth and development. The best interests of the child must be the primary consideration in determining custody.
In legal practice, the mother generally serves as the primary caregiver for young children, particularly when the child still requires intensive care. However, this is not an absolute rule that disregards the specific circumstances and the child’s best interests.
The biological father may establish a civil relationship with the child if the biological relationship can be proven in accordance with Constitutional Court Decision No. 46/PUU-VIII/2010. However, the recognition of this civil relationship does not automatically mean the father is granted custody. The determination of custody must take into account the child’s best interests, the capabilities of each party, emotional bonds, safety, and relevant evidence.
In the event of a dispute, the interested parties may seek resolution through mediation or file a case with the competent court. The determination of the forum and the basis for the lawsuit must be tailored to the parties’ religious beliefs, the child’s legal status, and the nature of the claims filed.
IV. Conclusion
Custody of a child born out of a valid marriage is not determined solely by the parents’ marital status but must be oriented toward the child’s best interests. The mother generally serves as the primary caregiver for young children, while the biological father may have civil rights if these can be proven under the law. However, the determination of custody remains dependent on the facts and the assessment of the competent court.
V. Recommendations
Before filing a custody claim, it is necessary to examine the birth certificate, evidence of biological relationship, history of care, the child’s condition, and evidence of each party’s ability and suitability. Subsequent legal strategies must be tailored to the specific circumstances of the case.
