- July 30, 2026
- Posted by: Hardy
- Categories: Dispute Resolution, Legal Insights
In a mixed-nationality divorce, child custody under Indonesian law is never based on nationality alone—it is strictly decided by the Best Interest of the Child. Under Indonesian constitutional and family law, children have the right to choose their custodial parent, or a court will decide based on who provides the most stable, safe, and supportive environment. If the child is too young to choose and the mother is an Indonesian citizen, the law guarantees government support to secure the child’s citizenship.
Globalisation has opened up opportunities for interaction among individuals of different nationalities and has led to a rise in mixed-nationality marriages, which are now common between Indonesian citizens and foreign nationals. However, these marriages often end in divorce when both parties reach a mutual agreement. In such cases, children from these mixed-nationality marriages are often affected by the divorce. These children may face psychological and legal challenges related to their citizenship status. This issue is further complicated by differences in citizenship laws between Indonesia and other countries.
In the case of a mixed marriage between an Indonesian citizen and a foreign national, the child has the right to choose—or, based on a court decision, to be placed in the custody of one of the two parents. However, if the child is not yet capable of making a choice and the mother is a citizen of the Republic of Indonesia, the government has an obligation to secure Indonesian citizenship for the child. This is in accordance with Article 29 of Law No. 23 of 2002 on Child Protection, as amended by Law No. 35 of 2014, which states the following:
“In the case of a mixed marriage between a citizen of the Republic of Indonesia and a foreign national, a child born of that marriage is entitled to acquire the citizenship of either the father or the mother in accordance with the provisions of applicable laws and regulations. In the event of a divorce from the marriage referred to in paragraph (1), the child has the right to choose, or, based on a court decision, to be placed in the custody of one of the parents.“
In the event of a divorce as referred to in paragraph (2), where the child is not yet capable of making a choice, and the mother is a citizen of the Republic of Indonesia, in the best interests of the child or at the request of the mother, the government is obligated to arrange for the child’s citizenship status in the Republic of Indonesia.
However, the determination of who is entitled to custody of a child following a divorce from a mixed-nationality marriage must also be based on Article 28B, Paragraph (2) of the 1945 Constitution, which states, “Every child has the right to survival, growth, and development, as well as the right to protection from violence and discrimination.” This indicates that the granting of child custody must be based on the principle of the “Best Interest of the Child,” meaning that custody is not determined solely by differences in nationality but also by the child’s psychological well-being and overall welfare. The legal basis for this principle can be found in Article 41(a) of Law No. 1 of 1974 on Marriage, which states: “Both the mother and the father remain obligated to care for and raise their children, solely based on the best interests of the child; in the event of a dispute regarding custody of the children, the court shall render its decision.”
The application of the “Best Interest of the Child” principle is reflected in the South Jakarta District Court Decision No. 271/Pdt.G/2024/PN.Jkt.Sel. In that decision, an Indonesian mother was granted custody of her child, who is under 12 years of age, from a mixed-nationality marriage with a French national. In the ruling, the judge opined that the mother could provide a growth and development environment more suited to the child’s needs. Additionally, the judge also opined that the mother could be a more stable caregiver.
It can be concluded that in South Jakarta District Court Decision No. 271/Pdt.G/2024/PN.Jkt.Sel regarding the awarding of child custody in a mixed-nationality marriage, the principle of “Best Interest of the Child” takes precedence over the differing nationalities of the parents. This ruling also demonstrates how the judge applies this principle through the court to grant custody to the parent deemed better able to provide a conducive and stable environment so that the child can grow up healthy, both psychologically and in terms of their well-being.
Farra M Nabila / Diasta Adya Bramulia
The information provided in this article does not, and is not intended to, constitute legal advice. Court decisions, legal interpretations, and factual circumstances differ in every case. Readers should contact a licensed attorney for counsel on any specific legal issue.