Legal Literacy - This article discusses the concept of Joint Physical Custody related to child custody after parental divorce. Explaining the regulations and basic principles of custody according to the Marriage Law and Child Protection, this article provides insight into the advantages and disadvantages of the concept of joint custody. Through an approach that focuses on the best interests of the child, this discussion highlights the challenges and solutions in maintaining a balanced relationship between the child and both parents after divorce.

Child Custody

Child custody is a term used to describe the obligation of parents to provide services, protect, educate, and care for children until they reach adulthood. Determining child custody becomes important when the parents divorce. In general, if the child is still under 12 years old when their parents divorce, custody tends to fall to the mother. However, the determination of child custody also considers the best interests of the child and can be decided by the court. Both father and mother still have an obligation to be responsible for the child's growth and development, even though they are divorced.

In principle, the right to care for children after the divorce of both parents is regulated in the Marriage Law article 41 which states that: the consequences of the dissolution of marriage due to divorce are:

  1. Both mother and father remain obliged to care for and educate their children, solely based on the interests of the child; whenever there is a gap regarding the control of the child, the Court makes its decision;
  2. The father is responsible for all maintenance and education costs required by the child; if the father is in fact unable to fulfill this obligation, the Court may stipulate that the mother share these costs;
  3. The court may obligate the ex-husband to provide living expenses and/or determine an obligation for the ex-wife.

Child custody is part of human rights that must be guaranteed, protected, and fulfilled by parents, families, society, government, and the state. In the context of child custody, it is important to understand that human rights include personal human rights, economic human rights, political human rights, social and cultural human rights, human rights to receive equal treatment in law and government, and human rights to obtain fair treatment of justice and protection.

According to Law No. 23 of 2002 concerning Child Protection, a child is someone who is not yet 18 years old, including a child who is still in the womb. Child protection includes all activities to guarantee and protect children and their rights so that they can live, grow, develop, and participate optimally in accordance with human dignity, and receive protection from violence and discrimination.