Custody Question

[Indo_mommy 0]

Hi everyone,

I haven't post here in such a long time but I need your advice for a reader of my blog. This guy is in a mix marriage too, happily married to an Indonesian lady and have a child together. He asked me since their son holds dual citizenship and their marriage has been registered legally in both countries (Indonesia & America) how is the implications of custody if on worst case scenario they are separating? Which country will have jurisdiction over the matter? They do have prenuptial agreement that was made in the States and they are all living in the States now. Can you help this guy out? Thank you!

Edited June 11, 2010 by Indo_mommy

[Deputy Purple 1,294]

The country that has jurisdiction will be the country where divorce is filed.

[Bernie C 24]

This is something my wife just mentioned to me. She is an Indonesian Citizen and I’m a U.S. Citizen. Our child was born in the U.S.A. I’m concerned about this issue. If, god forbid, me and my wife ever did separate would this law allow her to take our child to Indonesia and keep him there? Who has the right to decide custody? If the child is born in America shouldn’t the US courts decide that? As the father would I have any rights in Indonesia if my child was taken there? Me and my wife were married under the assumption that our lives would be here in the US. I just want to make sure there are protections in place if my child is granted this dual citizenship.

While you are both in the US, child custody would be a matter for the Civil Court System.

How, where and when a child is taken and under what circumstances get a bit more complicated and who has what rights is also a complicated issue when dealing with foreign countries. It may fall into the category of parental kidnapping and that initself is a complex situation.

I would suggest you post such scenario in an online law forum or do some searches on the topic. There is no simple and clear cut explanation to cover all the possible scenarios.

You may want to look up the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) which is Federal Law. This applies to intrastate cases.

For parental kidnapping cases involving foreign countries you will want to search and read about the Hauge Convention on Civil Aspects of International Child Abduction.

I sincerely hope this never becomes and issue in this couples life, live long and with much love and happiness!

Happy Readings!!!!!!!!

[Bernie C 24]

The country that has jurisdiction will be the country where divorce is filed.

Not quite that straight forward. The country that has jurisdiction is actually the country where they have jurisdictional residence!

[Deputy Purple 1,294]

Not quite that straight forward. The country that has jurisdiction is actually the country where they have jurisdictional residence!

Well, usually you'd file for divorce in the country where you live. I know here one of the parties must reside in the county where you file. I believe there is even a requirement for most civil/family filings that you be a resident for 6 months.

So I guess I should have said the country were a party can successfully file for and complete divorce proceedings based on residential requirements?

If divorce is filed where there isn't jurisdictional residence then it is easily killed with a simple motion to dismiss based on lack of jurisdiction.

Edited June 11, 2010 by Bob 4 Anna

[justashooter 430]

Not quite that straight forward. The country that has jurisdiction is actually the country where they have jurisdictional residence!

child custody is usually granted to the individual who makes the commitment to keep the child in the surroundings to which they are accustomed.

if your buddy thinks his marriage is on the rocks get him to spend as much time with the child as possible. if the child is less than 6 years old, get the child into day care and the mother working. if the child is in school, get the mother working. get the father's family deeply involved with the child. these actions all tend to tie the child to USA and the father's situation as the status quo.

[Indo_mommy 0]

Thank you everyone for your replies! I sure do hope it won't come to that and this couple will have a happy marriage because it does sounds very complicated. Will forward your replies to him

[summersurf 10]

Just swingin by to say hope there will be no splitting up, separation or divorce so they dont have to deal and worry about this custody matter

Oh hi Maureen!

[Indo_mommy 0]

Sure hope so!

And hello to you too, I don't believe we've 'met' yet, Summersurf!

[Aaron S 0]

Hi, I'm the friend in question. First off me and my wife are happily married so I hope this sort of scenario never comes up.

1. My wife came to the US to marry me and we've been married for almost 3 years now.

2. We have a 1 year old boy.

3. We are legally married both in Indonesia and In the US so if a divorce ever happened it would have to be filed in both countries which would cause complication.

4. We have a prenuptial in the US which states any custody disputes would be handled by arbitration, however, I do not know if it would be recognized in Indonesia.

Recently my wife needed to renew her Indonesian passport and in her research she found that our son can have dual citizenship but I have heard about really bad scenarios of people divorcing who were from separate countries and not being able to see their children again.

Even though I think our relationship is great I never want to open the door in the future for something bad to happen. So, I'm wondering where jurisdiction would lie in the unlikely case that we separated.

One thing I was thinking though is why would our son need Indonesian citizenship right now unless we were planning on living in Indonesia?

[Indo_mommy 0]

One thing I was thinking though is why would our son need Indonesian citizenship right now unless we were planning on living in Indonesia?

Hi Aaron, good to have you here. This site has been a great resource. Hopefully someone else can answer your other questions better but I'd like to answer your last one since my son hold dual citizenship.

For us, we wanted to 'take advantage' of the newly approved dual citizenship law for mix children. He had his Indonesian passport since he's 6 months old like I said in my blog, at the time we did not know we would end up living back in Jakarta but we had been traveling back and forth to Jakarta since 2007. I guess the biggest advantage is he won't need a visa to enter Indonesia and can stay as long as needed. When we travel to other countries (we used to live in China for a short while) I use his American passport because simply it's easier.

I do have friends that does not applying for dual citizen for their children because they are living permanently in the States. So I think it is a personal choice whether to get it or not. It will only be 'valid' until the children is 18 then they will have to chose for themselves which citizenship to follow.

Best of luck to you and your family