Adoption of Step Children in Indonesia
Adopting your Indonesian stepchild is a special adoption proceeding because it takes place within a marriage between an adopting parent and a biological parent. Adopting your spouse’s child 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 an emotional bond.
This type of adoption is pretty special in Indonesia. Not only because it is happening within a marriage, but this is also because of the shared custody of the child between the adopting parent and the 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 share the child custody with you as if the child was born within your marriage. Both of you will share parental authority in virtue of a court decree.
The step-child adoption is a civil proceeding. You need to complete all the required motions. You, as a Petitioner(s), are required to be proactive. You're the one that is presenting facts, information, legal grounds, supporting documents, and witnesses. The judge takes on a passive role, and shall only entertain your motions as long as you're doing it correctly. These are crucial to remember if you want a smooth proceeding.
If you manage to present the facts and information successfully, the court will issue a court order. It will make everything legitimate and legally binding. You need to provide supporting documents and at least two witnesses at court. When the court awards the court order, you must forward it to the civil registry office four further registration.
Certain prerequisite requirements must be fulfilled for step-child adoption in Indonesia. If one item is missing, your petition will be rejected by the court. Please ensure that all of these exist at the time of the application for step child adoption is lodged in the court:
- Marital status of your spouse. Your spouse must be legally divorced from the previous spouse before you can adopt your step-child. Divorce in Indonesia must be carried-out in a court of law and an absolute divorce decree must be issued by the court – a religious court for Moslems and a district court for Non-Moslems. This is a basic requirement.
- Custody of the child. You need to discover whether or not your spouse has legal custody of the child. This information would be found in the divorce decree. This is very important since the Indonesian spouse will be sharing the custody with you. If he/she was never married before, and your step child was born out of legal marriage, then we suggest you apply for and obtain a Certificate of Child Custody before you start the adoption proceeding. The custody certificate may be in the form of court order that certifies the legal relationship between your wife as the child’s mother and the child, and that your wife is the holder of the custody.
- Affidavit and consent. You may be supporting the child on a daily basis for daily living expenses, education, etc., but you must enter into an affidavit to make it even more official by certifying that you will be responsible for that. As for your spouse, he/she will have to consent to the proceeding. So, the two of you will need to initiate reciprocal actions for the adoption.
There are several 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. The proceeding is carried out to safeguard the best interests 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 because you have utmost good faith in raising the child. While many prevailing laws and regulations may support your efforts in adopting your step child in Indonesia, some of them are better utilized than others. The interpretation of each legal ground will assist the court to 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 one example of the legal grounds and its further implications. Article 43 of 1974 Marriage Law that stipulates: “A child born outside of marriage has only a civil relationship with his/her mother and his/her mother's family.” This article may be quite safely used as the legal ground in adopting your step child, because the child was born outside of a legal marriage for your wife, and the father of the child is nowhere to be found. Nevertheless, you should look at any recent developments in family and matrimonial law in Indonesia before choosing the legal grounds for your petition.
In February 2012, the Constitutional Court issued a major breakthrough with decision No. 46/PUU-VIII/2010 date February 13, 2012. The Court has amended Article 43 of the Marriage Law and it now reads as follows: “A child born outside of marriage has only a civil relationship with his/her mother and his/her mother's family as well as the man who is the child’s father as 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 needs to 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 outside of a legal marriage. The absence of such certificate might jeopardize the proceedings since the court most likely will need to know the biological father of the child, or require consent from him.
The more legal precedence you have, the better. You might want to help the judge determine this if precedence will be used as consideration or reference. Judges in Indonesia are not obliged to follow legal precedence like their colleagues in Common Law countries such as United States, UK, and Australia. Sometimes, ego plays an important role as well. Following other judges’ precedence might be seen as a lack of initiative in researching prevailing laws and regulations regarding issues or conditions in the society. But compiling precedence for your case will not hurt you and will strengthen your petition.
Another example from our practice: Court decree number 555/Pdt/P/2012/PN.Jkt dated December 19, 2012. The proceeding took place in the District Court of North Jakarta. The husband is a Swedish national. His wife is an Indonesian woman who brought a child born out of wedlock child to the marriage. The legal considerations reached by the court in granting the stepchild adoption application were as follows:
- The couple is legally married in Sweden and the marriage is recognized by the laws in the Republic of Indonesia;
- The child is an out of wedlock child born to the Indonesian wife and the wife is the custody holder of the child based on a Certificate of Child Custody. They met the prerequisite requirements as we helped them to secure the certificate that certified her as the sole holder of the child custody;
- The husband is the family bread winner and has been supporting the child on a daily basis for food, education, clothes, housing, and entertainment;
- The husband supplied the court with a letter from the company he works for certifying that the child is entitled to the company’s dependent benefits in the event the court grants the stepchild’s adoption.
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 your Petition is rejected?
Like any other civil petition, the legal system in Indonesia allows the Petitioner to appeal to a higher court. But rejection by the district court will not look good. The process will no longer be downhill for you. Therefore, I would suggest you to your best effort at the first instance court by getting a licensed and experienced legal practitioner to assist you.
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 within this article nor in this website.
Our thanks to Asep Wijaya, Managing Director of Wijaya & Company for his contribution of this article!