Page 2856
Asian Journal of Engineering, Social and Health
Volume 3, No. 12 December 2024
Volume 3, No. 12 December 2024 - (2856-2868)
p-ISSN 2980-4868 | e-ISSN 2980-4841
https://ajesh.ph/index.php/gp
Comparative Legal Determination of Post-Divorce Child Custody in
Indonesia and Singapore
Sarah Nathaya Wibowo1*, Flora Dianti2
Universitas Indonesia, Indonesia
Emails: nathayawibowo@gmail.com1, flo_di@yahoo.com2
ABSTRACT
Divorce brings significant legal consequences, one of which is the dispute over child custody, requiring
clear and detailed regulations to prioritize the welfare and best interests of children. This study examines
the comparison of child custody provisions after divorce under Indonesian and Singaporean Family Law,
focusing on identifying gaps and potential improvements for Indonesia. Every individual aspires to build a
harmonious family, but marital conflicts can lead to divorce, affecting children and creating new legal
challenges. This research uses a qualitative method, analyzing legal documents and relevant literature to
explore how both legal systems address child custody. The findings indicate that Indonesia's regulations
lack definitive and structured guidelines, often causing ambiguity, while Singapore's laws provide more
comprehensive frameworks prioritizing children's welfare. The study suggests that Indonesia can adopt
key insights from Singapore's legal system to establish alternative approaches and improve child custody
provisions. This research has implications for policymakers in creating robust legal frameworks to ensure
children’s well-being remains central in custody decisions, providing solutions to minimize post-divorce
conflicts and better protect children's rights.
Keywords: Comparative Law, Child Custody, Indonesia and Singapore.
INTRODUCTION
Child custody is one of the most controversial issues in family law. Indonesia as an
archipelago with a population of more than 280 (two hundred and eighty) million people with
diverse religions, ethnicities, cultures and customs makes child custody cases complicated (Badan
Pusat Statisktik Indonesia, 2024). There are 2 (two) main regulations in Indonesia that regulate
the provision of child custody after divorce, namely Law Number 1 of 1974 concerning Marriage
and for people who follow Islam, Presidential Instruction Number 1 of 1991 concerning the
Compilation of Islamic Law applies.
Article 1 of Law Number 1 of 1974 concerning Marriage (Marriage Law) states that marriage
is a physical and mental bond between a man and a woman as husband and wife with the aim of
Comparative Legal Determination of Post-Divorce Child Custody in Indonesia and Singapore
Page 2857
Asian Journal of Engineering, Social and Health
Volume 3, No. 12 December 2024
forming a happy and eternal family or household based on God Almighty (Asyatama & Ridwan,
2021). Unfortunately, domestic problems that occur repeatedly cause a marriage to end and lead
to divorce. Based on a report from Indonesia's Central Bureau of Statistics (BPS), during 2023
there were 408,347 divorce cases in Indonesia (Indonesian Central Bureau of Statistics, 2024).
Some of the main factors that cause the high divorce rate include disputes and arguments,
economic problems, and domestic violence.
Divorce that occurs has several legal consequences, one of which is related to children.
Article 45 of the Marriage Law stipulates that both parents are obliged to maintain and educate
their children as well as possible and applies until the child is married or can stand on his own,
which obligation continues even though the marriage between the two parents is broken."
Although in the Marriage Law both parents are charged with the same obligation in taking care
of the child, the norms and concepts of childcare tend to dwell on separate parenting or split
parenting and only one party of the family gets custody of the child as seen from the dominance
of court decisions that decide child custody falls to one of the parents. This reality has led to a
high number of custody disputes where both parents fight over the custody of the child, resulting
in a court settlement. As of September 2023, the Indonesian Child Protection Commission
received complaints of 1056 cases of special protection of children within the scope of the family
environment and alternative care (K. P. A. Indonesia, 2023).
The main factors causing these cases include a lack of communication, awareness, and
parental responsibility. In addition, post-divorce custody battles occur because Indonesia only
provides sole custody as an option in resolving child custody disputes. The Marriage Law does
not regulate joint custody specifically and in detail. The Compilation of Islamic Law as a reference
that is often used by judges in making child custody decisions contains provisions that if the child
is not yet mumayyiz, the custody is given to the mother, and if the child has mumayyiz or is 12
(twelve) years old, the child can choose to be raised by the mother or father.
The regulation of divorce in each country must vary according to its marriage law.
Singapore's family law is regulated in the Women's Charter 1961 and for people who are Muslims,
the Administrarion of Muslim Law Act 1966 applies. There are 4 (four) types of child custody in
Singapore, namely joint custody order, sole custody order, hybrid order, and split custody order
(Wong, 2023). In general, courts in Singapore recommend that post-divorce child custody be joint
custody between both parents, but with the mother as the primary child custody holder (Ong,
1999). This is because the presence of both parents has an important role in the growth and
development of children, especially in the aspects of education, religion, and health. In
determining the type of custody, judges in Singapore prioritize the principle of welfare, the court
will prioritize the best interests of the child for an optimal life. Judges also consider how each
parent can ensure the overall welfare of the child until adulthood.
The reason researchers chose Singapore as a comparison is because geographically
Indonesia and Singapore are both located in Southeast Asia so that the culture between the two
Sarah Nathaya Wibowo, Flora Dianti
Page 2858
Asian Journal of Engineering, Social and Health
Volume 3, No. 12 December 2024
countries is not much different. In addition, it is also due to differences in the legal system
adopted, where Indonesia is a country that adheres to a civil law legal system. Countries with a
civil law legal system have codified laws and regulations so that there is legal uniformity among
the diversity of laws (Siregar, 2022). Furthermore, in civil law countries the judiciary has an
inquisitorial system, where judges are active in the judiciary and have a major role in directing
and deciding a case. Meanwhile, Singapore is a country that adheres to the common law legal
system. A country with a common law legal system has one of the characteristics where
jurisprudence is the main source of law (Sinaga et al., 2024). Furthermore, countries adhering to
common law judges are prioritized to follow and/or apply previous court decisions. Therefore,
the legal comparison between the two countries will be very interesting to work on.
Based on the above background, the purpose of this study is to analyze the comparative
arrangements for post-divorce child custody in Indonesian and Singaporean Family Law, focusing
on the differences and similarities in the regulations and their implications for children's welfare.
This research aims to provide an overview of the weaknesses in Indonesia's child custody
arrangements and offer recommendations for improvement by referring to Singapore's family
law approach, particularly regarding the application of joint custody. The benefit of this research
is to contribute to the development of family law in Indonesia, particularly in creating clearer and
more detailed rules regarding post-divorce child custody. In addition, this research is expected
to be a reference for policy makers in drafting regulations that are more comprehensive and
based on the principle of the best interests of the child, taking into account the presence of both
parents in the child's growth and development.
RESEARCH METHOD
The research conducted is doctrinal research. Terry Hutchinson argues that doctrinal legal
research is the study of legal rules, principles, concepts or doctrines. The research involves
meticulous systematic exposition, analysis, and critical evaluation of legal rules, principles or
doctrines, and their inter-relationships (Siregar, 2022).
This research uses secondary data. Secondary data is data obtained through literature
study in the form of laws and regulations relevant to the subject matter of the research, in this
case related to the legal comparison of post-divorce child custody between Indonesia and
Singapore. Secondary data is divided into primary, secondary, and tertiary legal materials.
Primary legal materials used in this research are the Marriage Law, Compilation of Islamic Law,
Women's Charter 1961, and Administration of Muslim Law Act 1966. Secondary legal materials
used are books, journals, scientific articles, and news related to child custody after divorce. The
object studied in doctrinal research is the problems faced by the community regarding the
determination of post-divorce child custody, so it requires research by comparing with the State
of Singapore on the issue.
Comparative Legal Determination of Post-Divorce Child Custody in Indonesia and Singapore
Page 2859
Asian Journal of Engineering, Social and Health
Volume 3, No. 12 December 2024
The research method used to analyze the data in this research is a qualitative method.
Analysis through qualitative methods is a way of analyzing data through legal materials based on
laws and regulations, theories, concepts, doctrines, and expert opinions, therefore this research
conducts qualitative data analysis with the main topic of child custody after divorce.
RESULTS AND DISCUSSION
Granting Child Custody after Divorce in Indonesia
Based on Law Number 1 of 1974 concerning Marriage
Provisions regarding the authority over children by their parents are contained in the
Marriage Law Chapter IX on the Position of Children and Chapter X on the Rights and Obligations
of Parents. According to Article 47 of the Marriage Law, children who have not reached the age
of 18 (eighteen) years or have never entered into marriage are under the authority of their
parents as long as they are not deprived of their authority. The breakdown of a marriage due to
divorce does not mean that both parents are released from the obligation to take care of the
children born from their marriage. This is regulated in Article 41 letter a of the Marriage Law
which states:
"Either the mother or the father remains obliged to maintain and educate the children,
solely based on the interests of the child if there is a dispute over the control of the children,
the Court gives its decision."
Article 45 of the Marriage Law also regulates the obligation of both parents to maintain and
educate their children as well as possible, this obligation applies until the child marries or can
stand alone and continues even though the marriage between the parents of the child has broken
down. Based on the provisions of the Marriage Law, it can be concluded that after a divorce,
both parents of a child are still obliged to take care of their child. This obligation is then
determined by the court which is hereinafter referred to as child custody. Regarding child
maintenance, the father is the main party responsible for all maintenance and education costs
required by the child. If the father is unable to fulfill this obligation, the court may determine that
the mother shares in the costs.
In addition to the obligations of parents towards children, children also have obligations
that must be fulfilled to their parents. This is stated in Article 46 of the Marriage Law which states
that children are obliged to respect their parents and obey their good wishes. When the child
has grown up, he/she is obliged to take care of the parents and family in a straight line up
according to his/her ability if they need help from the child. Parents holding child custody rights
can lose custody of their children and be transferred to other family parties with the aim of
promoting the safety and interests of the child. This is regulated by the provisions of Article 49
of the Marriage Law paragraph (1), which states:
Sarah Nathaya Wibowo, Flora Dianti
Page 2860
Asian Journal of Engineering, Social and Health
Volume 3, No. 12 December 2024
"One or both parents may be deprived of the authority over one or more children for a
certain period of time at the request of the other parent, the child's family in a straight line
upwards and adult siblings or an authorized official by a court decision in such cases:
a. She is grossly neglecting her duties towards her child; and/or;
b. He behaved very badly."
Even though the authority over the child is revoked, the parent still has the obligation to
pay for the maintenance of the child and also love the child as when he/she still has custody of
the child. Looking at the arrangements regarding child custody in the Marriage Law, there is an
implicit message stating that what is prioritized in granting child custody is the interests of the
child and the welfare of the child's life for growth and development into the future.
Based on the Compilation of Islamic Law
In Islamic law, child custody is known as hadhanah. The delegation of child custody after
divorce is clearly regulated in Chapter XIV KHI with the hope of perfecting the interests of
childcare that were previously regulated in the Marriage Law. Child care and maintenance are
both important concepts in family law because they are closely related to the position and rights
of children in family ties. According to the language, hadhanah means putting something near
the ribs or on the lap (Noor et al., 2023). This is because when a mother breastfeeds her child,
she puts her child on her lap, as if she is protecting and nurturing her child. The definition of
hadhanah in general is the maintenance of a child who is not yet able to live independently,
including education, and everything he needs both in the form of carrying out and in the form of
avoiding something that can damage him (Islami, 2019). In hadhanah there are two elements
that make up the pillars, namely hadhin or parents who care for and mahdhun or children who
are cared for (Asnawi & SHI, 2022).
Article 105 KHI regulates the maintenance of children after the breakdown of parental
marital relations, that the maintenance of children who are not yet mumayyiz or have not
reached the age of 12 (twelve) years is the right of the mother. (Putri et al., 2023). Furthermore,
the maintenance of children who have mumayyiz is left to the child to choose between the
mother or father as the holder of the maintenance rights, however, all costs of child maintenance
are still borne by the father. The custody of children who are still minors is the right of the mother
because she is considered the closest figure to the child, starting from conceiving, giving birth to
breastfeeding. Child maintenance also means a parent's responsibility to provide for the needs
of a child. The responsibility of maintenance in the form of supervision and service as well as
providing for the child is continuous until the child reaches the legal age limit as an adult who is
able to stand alone (Islami, 2019).
If the mother of the child has died, therefore Article 156 letter a KHI provides additional
provisions that the position of the mother can be replaced by women in a straight line up from
the mother; father, women in a straight line up from the father; sister of the child concerned; or
women blood relatives according to the side line from the father.
Comparative Legal Determination of Post-Divorce Child Custody in Indonesia and Singapore
Page 2861
Asian Journal of Engineering, Social and Health
Volume 3, No. 12 December 2024
Although the mother is the preferred party regarding the holder of child custody, there
are conditions for someone who wants to carry out child maintenance or become a hadhin,
whether the father or mother, the conditions are set, including baligh or adulthood, reasoning,
having the ability to educate and take care of children, trustworthy, Muslim, and for the mother
should not be remarried.
Post-Divorce Child Custody Awards in Singapore
Based on the Women's Charter 1961
Article 65(1) of the Women's Charter defines a child as a person under the age of 21
(twenty-one) years. The regulation stipulates that both parents have the same obligation to take
care of the child, whether the custody belongs to one parent or the other, and whether the child
is legitimate or illegitimate. The breakdown of a marital relationship does not remove a parent's
obligation to care for a child. Both parents are responsible for contributing to the overall
maintenance of the child from shelter, clothing, food, to education, this applies without
exception as stated in Article 68 of the Women's Charter. If one parent does not take
responsibility for their child, then under Article 69(2) of the Women's Charter, the court can issue
an order for the parent who neglects their child who has not reached the age of majority to
provide for the basic needs of the neglected child on a monthly basis.
Article 69 paragraph (3) of the Women's Charter stipulates that there are several parties
who can apply for child maintenance, including the guardian or anyone who has custody of a
child; can be done by the child himself if he is 21 (twenty-one) years old; done by his siblings who
are 21 (twenty-one) years old if the child is still a minor; or persons appointed by the Minister.
Singapore law divides child custody into 4 (four) types, including:
1. Joint Custody
Joint Custody is the granting of child custody that provides an opportunity for both divorced
parents to determine major decisions regarding the child (Damayanti et al., 2024). Both
parents can discuss and their opinions have equal standing. Joint custody is the type of child
custody that is most often determined by the court, this is because the presence of both
parents in the child's life has a great influence on the child's growth and development process
even though they have divorced.
2. Sole Custody
Sole Custody means that only one parent has custody of the child and is the sole decision
maker in terms of the child's interests. In general, sole custody is only granted by the court if
the relationship between the two parents is in a very bad condition. If the relationship
between the parents is so unhealthy that there is hostility, as well as constant fighting, then
this can make it impossible for them to communicate about issues or decisions relating to the
child. In some cases, one parent may voluntarily choose to give up custody of the child to the
other parent.
2. Hybrid Order
Sarah Nathaya Wibowo, Flora Dianti
Page 2862
Asian Journal of Engineering, Social and Health
Volume 3, No. 12 December 2024
A Hybrid Order is a court order conditionally awarding custody of a child to only one parent.
(Advice, 2022). One parent with custody must first consult with the other parent on specific
matters relating to the welfare of the child, such as determining the religion of the child or the
decision to move to another country.
3. Split Custody Order
If there are more than one child involved in the divorce, then there is a possibility that the
court may grant a split custody order to the divorcing parents. For example, the mother has
child custody of the first child and the father has child custody of the second child. In practice,
this is rare and difficult to apply as it would involve separate living arrangements for children
who are siblings. If a split custody order is indeed the middle ground chosen by the divorcing
parents, it will require the submission of an affidavit explaining that this type of child custody
is the best decision for the interests and welfare of the children.
In addition to custody, child custody provisions in Singapore also provide for care and
control and accesss rights decided by the Family Justice Courts. Care and control is given to one
parent who lives with the child and is responsible for day-to-day care activities. Generally, if the
child has not reached the age of majority, the mother will have care and control, while the father
will be granted access rights. Access rights are the rights given to one parent to visit and interact
with the child based on a mutually agreed schedule or a schedule set by the court.
Provision for children after divorce remains an obligation of both parents even if custody is
only given to one of the parties. The court considers the amount of maintenance based on the
income and financial capacity of each parent, the needs of the child such as education, health,
housing, and other basic needs, and the child's standard of living before the divorce.
Maintenance can be awarded on a monthly basis or in one large payment.
The court does order a child to be in the care, custody, control, and access of both parents
of the child, but in certain circumstances it may also be awarded to one parent only, another
relative of the child, an organization concerned with the welfare of the child, or even any other
appropriate person as essentially the award of custody of a child is determined based on the best
interest of the child. Under Article 126(3) of the Women's Charter 1961, there is also a prohibition
for the custodial parent to take the child out of Singapore without the consent of the other parent
or the court. This is stipulated to prevent the occurrence or abduction of children by their own
parents, especially overseas, which may violate the rights of the other parent. Where a custodial
parent breaches this provision, he or she is liable to a fine of up to $5,000 and imprisonment for
a term not exceeding 12 (twelve months), or both. In addition to criminal penalties, such actions
also affect the custody rights held. There are several factors that cause one parent to be denied
custody or care and control of their child, namely committing acts of violence against the child
both physically and psychologically, having mental health problems, trying to keep the child away
from the other parent, and not having a commitment to carry out their responsibilities as a
parent.
Comparative Legal Determination of Post-Divorce Child Custody in Indonesia and Singapore
Page 2863
Asian Journal of Engineering, Social and Health
Volume 3, No. 12 December 2024
Under the Administration of Muslim Law Act 1966
A child of both spouses in Article 2(1) of the Administration of Muslim Law Act is defined
as any child of the parties to a marriage (including a marriage deemed annulled), and includes
any child legally adopted. In the same article of the Administration of Muslim Law Act it is stated
that arrangements for the welfare of any child are the responsibility of both parents, this relates
to custody, care and control, as well as access to the child in the child's education and other
responsibilities towards the child. The Syariah Court or Religious Court in Singapore follows
Islamic Law in determining the custody of children after their parents divorce, namely hadhanah
(Haryati, 2020). One of these rules is that children under the age of 7 (seven) years will generally
be placed in the care of their mother, while older children can choose which parent they want to
live with after divorce. Another rule states that a mother can lose her parental rights if she
remarries. Several types of factors influence the determination of child custody in divorce cases
in the Muslim community in Singapore, including age; gender; the ability of the parents to meet
the physical, mental and educational needs of the child; the desire of the child to be cared for by
the mother or father; and the condition of the parents.
The procedure for child custody applications is set out in Section 13C of the Administration
of Muslim Law Act 1966 which states that in any application relating to a child, the applicant shall
notify the Court in advance of any proceedings relating to the child which may be pending in any
court in Singapore or elsewhere. The Court on the application of either party during any stage of
the proceedings, may make an interim order regarding custody, care and control, or access to
any child of a parent, if the Court is of the opinion that it is in the best interests of the child.
Before making such an interim order, the Court must take into account a number of
circumstances regarding whether or not there are legal proceedings relating to the child which
may be ongoing in a court in Singapore or elsewhere, or which are the subject of a court order in
Singapore such as whether the child must appear before the Court during the proceedings or
whether a party may take the child out of Singapore during the proceedings.
Comparative Analysis of Indonesia's Custody Provisions with Singapore's
Table 1. Comparison of Indonesian and Singaporean Custody Provisions
Comparison
Indonesia
Singapore
Legal Basis
Law Number 1 Year 1974 on
Marriage and Compilation of
Islamic Law.
Women's Charter 1961 and
Administration of Muslim Law
Act 1966 (AMLA).
Parental Obligations Toward
Children After Divorce
Both parents still have an
obligation to educate and
maintain their children even if
they are divorced.
Both parents are obliged to take
care of their children, even if
custody rests with the other
parent.
Type of custody
Indonesia does not divide the
types of child custody. Both
parents can co-parent. If there is
Custody rights are divided into 4
(four) types, namely Joint
Custody, Sole Custody, Hybrid
Order, and Split Custody Order.
Sarah Nathaya Wibowo, Flora Dianti
Page 2864
Asian Journal of Engineering, Social and Health
Volume 3, No. 12 December 2024
Comparison
Indonesia
Singapore
a dispute, then custody is
awarded to one parent.
Granting custody based on the
age of the child
The Marriage Law does not
regulate the age of the child as
one of the considerations for
granting custody to one of the
parents, but usually falls to the
mother. While in Article 105 KHI
the maintenance of children
who are not yet mumayyiz or not
yet 12 years old is the right of the
mother. If the child has
mumayyiz, the child can choose
the father or mother as the
holder of the right of
maintenance.
The Women's Charter 1961 does
not provide for the age of the
child as one of the
considerations for granting
custody of the child to either
parent, but is usually given to
the mother. Meanwhile, in the
AMLA for Muslims, children
under the age of 7 are taken care
of by their mother, while
children over the age of 7 can
choose to live with their father
or mother.
Provision of maintenance to
children
The Marriage Law stipulates that
the father is primarily
responsible for all maintenance
and education costs required by
the child. If the father is unable
to fulfill this obligation, then the
Court can determine that the
mother shares in these costs.
KHI also stipulates that all child
maintenance costs are borne by
the father.
The Marriage Law and AMLA
stipulate that maintenance for
children is the obligation of both
parents The court considers the
amount of maintenance based
on the income and financial
capacity of each parent, the
needs of the child such as
education, health, housing, and
other basic needs, and the
standard of living of the child
before the divorce.
Time Sharing with Children
The division of time with
children is determined by the
agreement of both parents.
There are rules regarding Care
and Control and Access which
will be held by each parent. Time
with the child will be decided by
the Court for the parent with
access.
Revocation of parental rights
In the Marriage Law, custody
rights can be revoked if the
parents neglect their obligations
towards their children and/or
they behave very badly.
Meanwhile, in KHI custody rights
can be revoked if they violate
the requirements as a hadhin.
A custodial parent can lose their
parental rights if they are violent
towards the child, have mental
health issues, keep the child
away from the other parent, and
are not committed to their
parental responsibilities.
Analysis of the Decision of the Gianyar Religious Court Number 2/Pdt.G/2019/PA.Gia
AD (father) as the Plaintiff and OP (mother) as the Defendant were originally a married
couple who entered into marriage in 2016. During their marriage, they had a son named N who
Comparative Legal Determination of Post-Divorce Child Custody in Indonesia and Singapore
Page 2865
Asian Journal of Engineering, Social and Health
Volume 3, No. 12 December 2024
was born in 2017. On March 8, 2018 the Plaintiff filed a divorce petition against the Defendant
and a divorce has occurred based on the Decision of the Gianyar Religious Court Number
08/Pdt.G/2018/PA.Gia. The decision stated that the custody of the Plaintiff and Defendant's child
fell to the Defendant as the child's biological mother. Since the two separated, the Plaintiff has
continued to carry out his obligations and responsibilities as a father to provide alimony and
affection to the child every month. Initially, the Plaintiff accepted that the child was being cared
for by the Defendant, but then the Plaintiff received news from a relative that the Defendant had
converted to the Defendant's original religion and a Hindu ceremony had been performed. The
Plaintiff did not believe this information because during the examination of the case file for
divorce the Defendant still claimed to be Muslim. The Plaintiff confirmed the truth of the news
with local residents and finally believed that the Defendant had indeed converted back to
Hinduism. The Defendant and his family also restricted the Plaintiff from meeting and spending
time with his child, N. The Plaintiff was given the opportunity to meet with N only inside the
Defendant's house and was not allowed to be taken outside or to the Plaintiff's house. This
situation caused the Plaintiff to be limited in his ability to express affection and more importantly,
the Plaintiff could not freely care for and educate the Plaintiff's child in accordance with the
teachings of Islam.
Considering that the marriage between the Plaintiff and the Defendant was conducted in
accordance with Islam and the child born was also a Muslim following the religion of his parents,
this is in accordance with Article 105 letter a KHI which states "The maintenance of children who
are not yet mumayyiz or not yet 12 years old is the right of the mother". Initially there was no
problem when N was being cared for and living with the Defendant, the Plaintiff did not object
and continued to provide maintenance. The Plaintiff also always visited and asked the Defendant
how their child was, and continued to love and care for N even though they no longer lived in the
same house. The Plaintiff's attitude and actions are in line with those set out in Article 41 (a) and
(b) of the Marriage Law which states that the mother or father is still obliged to maintain and
educate the child based on the interests of the child and the Plaintiff as the father is responsible
for the costs of maintaining and educating the child. The Defendant also continues to carry out
his obligations as the parent of N, in accordance with Article 45 of the Marriage Law, namely to
maintain and educate N until N is married or able to stand on his own feet even though the
marriage with the Defendant has broken down.
The actions of the Defendant in deliberately keeping the child away from the Plaintiff can
be considered a violation, because it is contrary to the basic principles in Article 41 of the
Marriage Law and Article 149 letter d of KHI. Custody rights granted to one party does not mean
that the other party loses the right to continue to play a role in the child's life, including the right
to meet and establish a relationship. If the custodial parent deliberately obstructs or keeps the
child away from the other parent, this can be considered a violation of the principle of the best
Sarah Nathaya Wibowo, Flora Dianti
Page 2866
Asian Journal of Engineering, Social and Health
Volume 3, No. 12 December 2024
interests of the child and has the potential to harm the child's right to receive attention from
both parents and can have an adverse effect on the child's development.
The respondent as the custodian of N has also changed his religion from Islam to
Hinduism. Since birth, N has adhered to Islam and was born from a marriage that was conducted
in accordance with Islam. Child custody for minors or hadhanah is given to the mother. There are
exceptions if the mother of the child is proven to have embraced a religion other than Islam or
apostatized, in Islamic law, one of the conditions for becoming a holder of hadhanah and hadhin
rights is that it must be Muslim. This is because someone who is not Muslim cannot have
authority over someone who is Muslim, so the Defendant's custody rights over his child, N, are
likely to be revoked. In its legal reasoning, the Panel of Judges used the Jurisprudence of the
Supreme Court of the Republic of Indonesia Number 210/K/AG/1996 which states that this is also
in accordance with the opinion of scholars in the Book of Kifayatul Akhyar Juz II that being Muslim
is one of the requirements of a person who carries out hadhanah duties. If one of the conditions
is not met, then the hadhanah rights of a hadhin are canceled. Based on this, the child custody
rights held by the Defendant were revoked and transferred to the Plaintiff as the biological father
of N.
CONCLUSION
The conclusion in this study shows a comparison of parenting arrangements between
Indonesia and Singapore highlights key differences in legal approaches. While Indonesia's
Marriage Act and KHI outline basic principles, their implementation lacks mechanisms to ensure
access rights for non-custodial parents, potentially impacting on the welfare of the child. In
contrast, Singapore's detailed legal framework under the Women's Charter 1961 and the Muslim
Legal Administration Act 1966 provides a clear division of responsibilities, including provisions for
care, supervision and guaranteed access rights, so that the child's relationship with both parents
is maintained. In addition, Singapore employs mediators or parenting coordinators to reduce
disputes and enforce compliance, supported by stricter sanctions. This research discusses the
need for Indonesia to adopt similar practices to strengthen its child custody system, with a focus
on enforcement and oversight mechanisms that prioritize the best interests of the child. Future
research could explore the socio-cultural and legal adaptation of Singapore's child custody
provisions in the Indonesian context, providing deeper insights into the harmonization of regional
legal systems while preserving local values.
Comparative Legal Determination of Post-Divorce Child Custody in Indonesia and Singapore
Page 2867
Asian Journal of Engineering, Social and Health
Volume 3, No. 12 December 2024
REFERENCES
Advice, S. L. (2022). Child Custody, Care and Control & Access: Singapore Guide.
Singaporelegaladvice.Com. https://singaporelegaladvice.com/law-articles/the-guide-to-
child-custody-in-singapore/
Asnawi, M. N., & SHI, M. H. (2022). Hukum Hak Asuh Anak: Penerapan Hukum Dalam Upaya
Menlindungi Kepentingan Terbaik Anak. Prenada Media.
Asyatama, F., & Ridwan, F. H. (2021). Analisis Perjanjian Perkawinan Menurut Undang-Undang
Perkawinan Di Indonesia. Ajudikasi: Jurnal Ilmu Hukum, 5(2), 109–122.
Damayanti, S., Betary, S. A., Pitriani, W., & Sihombing, A. J. (2024). Legal Philosophy Perspective
Toward Post-Divorce Child Custody in Indonesia. Yustisia Tirtayasa: Jurnal Tugas Akhir, 4(1),
53–68.
Haryati, S. (2020). Landasan Hukum Pertimbangan Hakim Dalam Memutuskan Perkara Hak Asuh
Anak (Hadhanah) Di Pengadilan Agama Sleman Yogyakarta Tahun 2017. Al-Mawarid Jurnal
Syariah Dan Hukum (JSYH), 2(1), 60–72.
Indonesia, Badan Pusat Statisktik. (2024). Jumlah Penduduk Pertengahan Tahun (Ribu Jiwa) 2024.
Www.Bps.Go.Id. https://www.bps.go.id/id/statistics-table/2/MTk3NSMy/jumlah-
penduduk-pertengahan-tahun--ribu-jiwa-.html
Indonesia, Badan Pusat Statistik. (2024). Jumlah Perceraian Menurut Provinsi dan Faktor 2023.
Www.Bps.Go.Id. https://www.bps.go.id/id/statistics-
table/3/YVdoU1IwVmlTM2h4YzFoV1psWkViRXhqTlZwRFVUMDkjMw==/jumlah-
perceraian-menurut-provinsi-dan-faktor.html?year=2023
Indonesia, K. P. A. (2023). Data Kasus Perlindungan Anak dari Pengaduan ke KPAI Tahun 2023.
Kpai.Go.Id. https://bankdata.kpai.go.id/tabulasi-data/data-kasus-perlindungan-anak-dari-
pengaduan-ke-kpai-tahun-2023
Islami, I. (2019). Legalitas Penguasaan Hak Asuh Anak Dibawah Umur (Hadhanah) Kepada Bapak
Pasca Perceraian. Jurnal Al-Qadau: Peradilan Dan Hukum Keluarga Islam, 6(2), 181–194.
Noor, F., Al-Amruzi, M. F., & Hasan, A. (2023). Problematika Hak Asuh Anak Pasca Putusan
Perceraian di Pengadilan Agama (Studi Kasus Nomor 342/PDT. G/2020/PA. MTP Jo Putusan
Banding Nomor 32/PDT. G/2020/PTA. BJM Jo Putusan Kasasi Nomor 392 K/AG/2021). Al
Qalam: Jurnal Ilmiah Keagamaan Dan Kemasyarakatan, 17(6), 4085–4104.
Ong, D. S. L. (1999). Parents and Custody orders-A New Approach. Singapore Journal of Legal
Studies, 205–228.
Putri, N. H., Tahir, P., & Muslih, M. (2023). Konsistensi Hukum Hadhanah di Indonesia: Studi
Yuridis Normatif Terhadap Putusan Pengadilan. Qanun, 1(2), 111–131.
Sinaga, J. S., Silubun, Y. L., & Rado, R. H. (2024). Sistem Hukum Common Law: Perkembangan Dan
Karakteristiknya. Jurnal Restorative Justice, 8(1), 23–32.
Siregar, P. J. W. S. (2022). Perbandingan Sistem Hukum Civil Law Dan Common Law Dalam
Penerapan Yurisprudensi Ditinjau Dari Politik Hukum. " Dharmasisya” Jurnal Program
Magister Hukum FHUI, 2(2), 37.
Wong, J. (2023). Child Custody In Singapore. Thesingaporelawyer.Com.
https://www.thesingaporelawyer.com/family-law/children-custody-care-control-and-
access/
