Accommodating the ‘Best Interests of the Child’ in Custody Disputes in the Indonesian System/s of Family Law

Abstract

This article discusses the implementation of the right of child custody in the Indonesian Family Law system, which under the Indonesian Marriage Act 1974 does not explicitly regulate the form of custody and ensure the best interests of the child. The research aimed to examine the reasoning by judges (in both the Religious Court and State Courts) and their decisions in child custody disputes, the form of child custody that was granted, and to what extent the reasoning and decisions have considered the (best) interests of the child. A qualitative approach was adopted. The data was obtained by scrutinizing 31 court decisions across the Indonesian archipelago in cases related to divorce and child custody. The research found that judges granted the right of custody to the mother, father, or both parents, depending on various particulars of the case, and parental capability. The Judges’ decision making considered the potential psychological and social effects on the children. However, they did not consider the history of domestic violence by the parents nor fully accommodate the best interests of the child/ren because their voices were not always heard.