• Thu. May 19th, 2022

Does Divorce Result in Guardianship? This is the answer


Nov 20, 2020
Does Divorce Result in Guardianship? This is the answer

An application for the appointment of a guardian is submitted together with an application for revocation of foster care by attaching a recommendation from the social agency. The term guardian or guardianship may be familiar to our ears. If we hear the term, surely we immediately relate it to the responsibility for caring for minors that is carried out by guardians. Likewise with the power of custody,

which is the power to nurture, educate, and care for underage children. These two terms are often used by parents who are facing a divorce process. As if it were interchangeable, many parents asked to be appointed as guardians or custody of their children who were minors in a divorce case. So what is the difference between guardianship and custody? Who is the guardian and who is the holder of custody? And does divorce result in guardianship? Check out the following reviews!

The Civil Code and the Marriage Law do not define guardianship. Therefore, the definition of guardianship is obtained by concluding the provisions of Article 50 of the Marriage Law, which means that the personal power of children and their assets who have not reached the age of 18 years or have never been married and are not under the control of the parents. Meanwhile, according to Article 1 point 11 of the Child Protection Law, it is defined as the power of parents to care for, educate, nurture, nurture, protect and develop children according to their religion and according to their abilities, talents, and interests.
Thus guardianship and custody are two different things because guardianship only occurs when an immature child is not under the control of his parents.

Definition of Children

According to the provisions of Article 1 point 1 of the Child Protection Law, a child is someone who is not yet 18 (eighteen) years old, including children who are still in the womb. So that someone who is not yet 18 (eighteen) years old is still categorized as a child and immature. This is of course different from the provisions in Article 330 of the Civil Code which states that an immature person is someone who is not yet 21 (twenty one) years old or has never been married. However, in terms of stipulating guardianship or child custody, the age of the child which is the benchmark at this time generally refers to the Child Protection Law and the Marriage Law which states that a child is someone who is not yet 18 (eighteen) years old. This is due to the existence of the lex posterior derogat legi priori legal principle, which means that newer legal regulations override or cancel the old legal rules.

Who are Guardians and Parents?

Based on the provisions in Article 1 point 4 of the Child Protection Law, parents are defined as father and / or biological mother, or father and / or stepmother, or father and / or adoptive mother. Meanwhile, guardian is a person or body that in reality exercises parental authority over the child.

If we look at this definition, then parents and guardians are not the same subject. the parent can be a father and / or biological, step, or adopted mother. Meanwhile, guardian is a party other than the parents, be it a person or a legal entity who is a substitute for the parents to exercise their parental powers, namely nurturing, nurturing, fostering, protecting, and developing children. A guardian can come from the child’s own family (other than parents) or other people who are not family as long as he is physically and mentally healthy, fair, honest, good behavior, economically capable, and has the same religion as the child.