Komnas: Confiscation Of Child Custody Including Violence Against Women

JAKARTA - The National Commission on Violence against Women (Komnas Perempuan) said that the incident of confiscation of child custody by a former husband was recognized as a gender-based act of violence against women.

According to Komnas Perempuan, this is a way that the perpetrators use to express the power of control of their husbands/men on the side of their wives/women or as revenge for conditions they cannot control when their wives insist on divorce.

"This act of confiscation of child custody causes prolonged psychological suffering and can have an impact on mental and physical health on women," said Komnas Perempuan Commissioner Andy Yentriyani, Alimatul Qibtiyah, and Theresia Iswarini in a joint statement received by ANTARA in Jakarta, Saturday.

As previously reported, five mothers submitted a judicial review of Article 330 paragraph (1) of the Criminal Code (KUHP) which was considered to have caused legal uncertainty. Aelyn Hakim, Shelvia, Nur, Angelia Susanto, and Rosan Kaish Sadanggani questioned the phrase "who is it" in the article.

On Thursday (26/9), the Constitutional Court (MK) rejected the petitioners' petition. However, in the consideration of the verdict, the Constitutional Court emphasized that biological parents who take children forcibly without rights or permits can be punished, because these actions are included in Article 330 paragraph (1) of the Criminal Code.

Komnas Perempuan noted that the experience of the applicant for judicial review submitted by five women who were facing a situation of confiscation of child custody by their ex-husband after the divorce was a situation that was also experienced by many women.

Based on direct reporting data to Komnas Perempuan in the range from 2019 to 2023, it was recorded that as many as a third or 93 of the total 309 cases of violence committed by ex-husband (KMS) were related to child care.

A total of 44 of the 93 cases occurred even though the mothers had obtained child care rights based on court decisions.

The struggle for child custody was also found in the case when the divorce process was still ongoing. A number of husbands deliberately hide or cut off their child's relationship with their mother.

This action, noted Komnas Perempuan, was taken to take the wife hostage so as not to sue for divorce, or intended to give suffering to the wife's prolonged party.

In the 2019-2023 range, Komnas Perempuan recorded 222 cases of violence against his wife (KTI) which were also related to the seizure of children from 3,079 total KTI cases.

Therefore, Komnas Perempuan appreciates the Constitutional Court's decision No. 140/PUU-XXI/2023 regarding compliance with court decisions on child care rights in divorced couples. This decision is an important step in strengthening women's access to the right to justice and women's rights related to marriage and providing legal certainty because it removes the multi-interpretation gap in Article 330 Paragraph (1) of the Criminal Code.