About the Proceeding
Adopting your step-child in Indonesia is a special adoption proceeding because it takes place within a marriage between adopting parent and biological parent. Adopting your spouse’s child, sometimes referred to as a step-child adoption, can make your family feel connected. When a step-parent adopts his spouse’s child, he becomes responsible for the child both legally and financially in addition to forming emotional bond.
This type of adoption is pretty special in Indonesia. Not only because this is happening within a marriage, but this is also about sharing the custody of a child between you as the adopting parent and your spouse as the custody holder. It should not remove your spouse’s custody right and put it on you as the adopting parent. It’s more like making your spouse shares the child custody with you as if the child was born within your marriage. Both of you will be sharing parental authority in virtue of a court decree.
The step-child adoption is a civil proceeding. You do all the motions required. You as a Petitioner(s) are required to be proactive. You’re the one that presenting facts, information, legal grounds, supporting documents, and witnesses. The whole nine yards. The judge is being passive, and shall only entertain your motions as long as you’re doing it correctly. These are the crucial parts of the works within the proceeding.
If you managed to present the facts and information successfully, the court will issue a court order. It will make everything legitimate and conclusive legal binding. You need to provide supporting documents and supplying at least two witnesses. Those two things are required for the success of the step child adoption proceeding at the court. When the court awards you with court order, you must forward it to civil registry office for further registration.
Certain conditions must be made as the prerequisite requirements for the step-child adoption in Indonesia. One item is missing and you’ll end-up with rejection by the court. There are several things that you need to pay attention to, and must be exist at the time application for step child adoption lodged to the court:
1. Marital status of your spouse. Your spouse must legally divorce before you can adopt your step-child. I mean she/he was a divorcee before she/he married to you. Divorce in Indonesia must be carried-out in court of law. Therefore, an absolute divorce decree must be issued by the court. A religious court for Moslem, and a district court for Non-Moslem. This is a must.
2. Child custody of the child. You need to seek further whether your spouse is the holder of the child custody. If she/he was the holder of the custody, you will find it in the divorce decree. Usually divorce comes together with child custody. This is very important since she will be sharing the custody with you. If she/he has never married before, and your step child was born out of legal marriage, then I would suggest you to get a Certificate of Child Custody. The custody certificate may be in the form of court order that certify the legal relationship between your wife as the child’s mother and the child, and that your wife is the holder of the custody.
3. Affidavit and consent. You may be supporting the child on daily basis for daily living expenses, education, etc. but you must enter into an affidavit to make it more even official certifying that you will be responsible for that. As for your spouse, she/he will have to consent to the proceeding. So, the two of you initiating reciprocal actions for the adoption.
There are many legal grounds that you can use to support the efforts in a court of law. You must choose the legal grounds carefully because each and every legal ground leads to different legal implications. As the proceeding carried-out for the best interest of your step-child, but you may also need to seek and choose supporting legal grounds, or have someone with enough experience to do it for you. The court will not approve the petition just only because you have utmost good faith in raising the child. While many prevailing laws and regulation may support your efforts in adopting your step child in Indonesia, but some of them are better off than the other. The interpretation of each legal ground will assist the court to cross-examine your civil petition. Inappropriate choice of legal grounds will lead the court to deny your civil petition. Therefore, make sure you pick the ones that support you, and not the other way around.
Let me give you one example of the legal grounds and its further implications. You may consider using it, but I would suggest you to get a licensed and experienced legal practitioner to have them reviewed before you proceed with it. Article 43 of 1974 Marriage Law that stipulates: “A child born outside of marriage has only civil relationship with his/her mother and his/her mother’s family.” This article may be quite safe to be used as the legal ground in getting the adoption for your step child, because the child was born outside a legal marriage of your wife and the father of the child is nowhere to be found. Nevertheless, you should look any recent development in family and matrimonial law in Indonesia.
In February 2012, the Constitutional Court has issued a major breakthrough via its decision number 46/PUU-VIII/2010 date February 13, 2012. The Court has amended Article 43 of the Marriage Law and should be read as follows: “A child born outside of marriage has only civil relationship with his/her mother and his/her mother’s family as well as with man as the child’s father that can be proved by science and technology, and/or other evidence under the laws to have a blood relationship, including civil relationship with his/her father’s family.”
Therefore, if you’re using this legal ground to get your step-child adopted, your spouse better have a certificate of child custody. The certificate certifies that she is the legal holder of child custody. It can be either in the form of an absolute divorce decree, or court order certifying that she is the mother of a child born out of legal marriage. The absence of such certificate might jeopardize the proceeding since the court most likely will need to know the biological father of the child, or require such consent from him.
The more precedence you have the better. You might want to help the judge to make his job easier. Precedence will be used as consideration, if not as a reference, as the judges in Indonesia are not obliged to follow any precedence like their colleagues in Common Law countries such as United States, UK, Australia, etc. Sometime, ego plays important roles as well. Following other judges precedence might be taken as lack of initiatives in digging any prevailing laws and regulation regarding certain issues or phenomenon in the society. But getting more precedence for your case will not hurt you and will look good to your petition.
I will choose one of the cases from our firm’s portfolio. Court decree number 555/Pdt/P/2012/PN.Jkt dated December 19, 2012. The proceeding took place at District Court of North Jakarta. Husband is a Swedish man. Wife is an Indonesian woman brings an out of wedlock child to the marriage. I would like to bring your attention to the legal considerations reached by the court in granting the step-child adoption application as follows:
1. The couple is legally married in Sweden and the marriage is recognized by the laws in the Republic of Indonesia;
2. The child is an out of wedlock child born to the Indonesian wife and that the wife is the custody holder of the child based on Certificate of Child Custody made previously. They met the prerequisite requirements as we helped them to secure the certificate that certify her as the sole holder of the child custody;
3. The husband is the family bread maker and has been supporting the child on daily basis for food, education, clothes, housing, and entertainment;
4. The husband supplied the court with the letter from the company he worked for certifying that the child entitled to company’s dependent benefits in the event the court grant the step-child adoption.
You see, the couple not only met all the prerequisite requirements but they also successfully convinced the judge that the court order will be used for the best interests of the child.
What If You were Rejected
Like any other civil petition, the legal system in Indonesia allows the Petitioner to appeal to the higher court. But rejection by the district court will not look good on you. The route will no longer downhill for you. Therefore, I would suggest you to work best effort at the first instance court by getting a licensed and experienced legal practitioner.
Disclaimer: The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found anywhere in this article nor in this website.
Our thanks to Mr. Asep Wijaya, Managing Director of Wijaya & Co (www.wijayaco.com) for his article contribution.