Please explain for my case. We have interfaith marriage through civil registration, have two daughters (2 years and 6 months). The one who followed the religion of the husband for 2 years, and 6 months joined the religion of the wife because there was a fundamental problem that could no longer be found a solution. If there is a divorce, what about custody? Can the children be divided, the husband remains the same for 2 years, and the wife 6 months, but still the husband’s responsibility for the cost of the 6 month child? Please explain, thank you in advance.
Religion and Child Custody
You did not completely specify the religion of you and your partner. We will explain in the case that for example you and your partner are Muslim and non-Muslim.
As stipulated in the Article on divorce, it does not eliminate the obligation of the father and mother to care for and educate their children. The article also states that if there is a dispute over the control of children, the court will make the decision.
This means that regarding child custody, if no agreement is found between husband and wife, it is resolved through court channels. But as an illustration of the distribution of custody, if we look at Islamic Law, we can refer to, in the event of a divorce, the care of children who are not or not yet 12 years old is the right of the mother, while the care of children who are is left to the child to choose in between father or mother as holders of maintenance rights.
Regarding the provisions of Article 105, there are exceptions, namely if it is proven that the mother has apostatized and embraced a religion other than Islam, then the mother’s right to care for the child will be annulled. There are seven prerequisites for people who will carry out hadhanah duties: sensible, independent, Muslim, simple, trustworthy, living in a certain area, and not having a new husband. If one of these conditions is lacking, the right of hadlonah will be annulled from the hands of the mother. care for children who are not able to stand on their own, the cost of education and maintenance of anything that endangers their lives in order to guarantee children’s rights to live, grow and develop optimally.
This is also in line with what states that parental power is the power of parents to nurture, educate, nurture, nurture, protect, and develop children according to their religion and their abilities, talents, and interests. This means that children must be cared for in accordance with their religion so that their mental and spiritual development is good. However, apart from seeing the religion of the parents who will get custody of the child, of course the behavior of the parents must also be seen. Religious similarity is not the only factor in determining what is best for the child (in the care of the father or mother).