The question that is often asked by prospective clients to our team of lawyers in Bali regarding divorce cases is how about child custody?, who gets child custody? We as a team of Lawyers in Bali gave one example, a Hindu wife who has a minor child, the wife’s question is, am I a Hindu woman, who married under the purusa system in Bali, have the right to have custody of my child who still underage?
Generally, women who have minors are reluctant to file for divorce for fear of losing/not being able to meet their child who is still breastfeeding/underage. Because there are a number of cases of the male family (father) in Bali who forbid the mother to see her child. Even this case was mediated by the Indigenous Prajuru in this case the Kelian Adat and the Indigenous Bendesa.
In a divorce case at the Court, of course, there will be legal consequences after the child’s parents are divorced by the Court, regarding who has the right to care for and maintain the child, whether the father, mother, grandfather, grandmother or relatives such as uncles and aunts? When the child’s parents die.
National law regulates that for children under the age of 12 years, the care and maintenance of children is generally in the hands of the mother, children who are over 12 years old, can choose who to join / who to choose to be cared for.
This is different from marriage according to Hindu law or customary law in Bali, which adheres to the paternal system (Vederrechtelijk), so that the purusa or the male party has the more right. However, if the child is still breastfeeding for humanitarian reasons and for the sake of the child’s growth and development, the Court grants custody to the mother.
If we look at the Child Protection Act, both father and mother (both parents) have equal and equal rights to care for, care for and protect children’s rights.
The most important thing in this case is the ability of parents, both father and mother, to care for and care for their children.
However, the Judge may revoke the Child Custody if there is strong evidence that the parent has neglected his obligations to the child, the parent has treated the child very badly, as regulated in Article 49 paragraph (1) of the Marriage Law which reads “One of the or both parents may have their power revoked over a child or more for a certain period of time at the request of the other parent, the child’s family in a straight line and an adult sibling or an authorized official with a court decision in matters:
- He was grossly neglectful of his obligations to his son;
- He behaved badly;
The author, who is a team of Lawyers in Bali, is of the opinion that to answer a prospective client’s question (a mother who has a minor) is that if the child is underage and breastfeeding, then the mother has the right to care for and care for him.
The reason is psychological, namely: since the baby is born in the world, the baby begins to form an emotional bond with his mother, this bond with his biological mother grows stronger as the baby ages. But later after the child is an adult, the responsibility of the child is still the responsibility of the father according to the concept of purusa or fatherhood in Hinduism (Balinese custom).