Adoption
Adoption is the legal process by which an adult or adults become the legal parent of another person . Thought adults usually adopt children, most states permit adults to adopt another adult. Few legal restriction are placed on who can adopt another. Therefore, people regardles of marital status, race, religion are eligable to adopt anyone else. In practice, however, adoption egencies and courts try to make the child’s new family as much like that of the natural parents as possible.
This mean adoption agencies are sometimes reluctant to place children with single parents or parents of different race or religion. Most adoption are set up throught public or private adoption agencies. People wishing to adopt apply to these agencies and are investigated to determine wheter they will be suitable parent.
People who wish to adopt may contact an adoption agency. They must then apply to court to have the legal adoption. An attorney is often necessary to take the legal steps to make the adoption final. An adoption agency will submit its report on the adoption parents and will seek written consent from the birth parents . In most states, when the court approves an adoption, a temporary order is issued. This mean the agency or natural parents remain the legal guardians for a specified waiting period, such as six months or years. After this, a new birth certificate is issue. It show the adopting parents as the parents of child. The adopting child and the adoptive parents then assume the same right and responsibilities as natural-born children and their parents.
This is the mean and the adoption foreigh prosedur at the other country such as New York, Los Angeles, San Fransisco, and the other law country. So, how about adoption concept in Indonesia, at Islamic sight, also custom law? We will discuse about this problem in this paper.
1. The adoption at Islamic law sight
Islamic law does not recognise adoption as a legal institution, and then if someone have no a child and he like one young person or a child very much, he can not adopt that child because the notion of adoption is not valid. In Pakistan there is the yudicial notice that taken on appointing an individual person as their heir. Even altought it’s not know as adoption but the same practical implication would accur in the sense that the choosen child would take share of the property in the estate of the deceased person.
Nevertheless adoption so far as the western legal system are concerned is much more intimate relationship than simply allowing some money to go to an individual person. This is why certain countries such as North Yemen in terms of the Famili law 1978 have introduced secular laws on adoption .
2. Adoption perspective Indonesian Law
Adopt child or hadhonah as mentioned at opening marriage law 1 paragraph is bring up, protect, and educate the child until he become an adult child.
At the opening of inheritance law Islamic judicature 171 paragraph, the first chapter mentioned that adopting child is the transfer responsible to protect the child basic requirements, the school necessity, and other necessity from the natural parents to the adopting parents based on Islamic judicature decision.
When we discuse about the meaning of adoption, of course that mater does’nt suitable with Indonesian people nation condition. Because BW perspective saw that married as a living shape together, not only to born the child or generation. But because the adoption is the Tionghoa customary, the BW make a rule and the law about adoption at Stbld. 1917-129 at the second chapter .
But Soedaryo Soimin mention in his book that BW never regulate the adoption . The rule at Staatblad 1917 no. 129 is regulated the adoption institute, the principal of that rule are regulated that;
The foster parent who will adopt a child is a man who has a wife or ever married with a woment, and he haven’t a child, than just a son be able to be adoption. But in this era, as yurisprudensi statement said that a daughter be able to adopt too. Adoption be able to sever the law relationship between a son and his natural parents. And the adopt child heir following his adopting parents. The adopted child and the adopting parents then assume the same right and responsibilities as natural-born children and their parents.
The adoption prerequirement at Staatsblad 1917 no. 128 8 paragraph are :
1. The adopting parents agreement
2. A. The natural parents consent if they still live, if the dad had pass away and his mother has married again, the adopting parents need a custody agreement and consent, also Weeskamer as a legal custody organitation.
B.If the adopt child born from illegal marriage, the adopting parents need a parents consent who confess as their parents. And if no one confess the child, a adopting parents need the custody consent and agreement also from Legal Custody Organitation.
3. If the child has reached a certain age (15), the child consent is necessary.
4. If the adopting parents is a widow, she must get the consent from her son patrilinial, or if it imposible she must get the late husband family consent.
The rule of the forth number can be changed with nation court consent were the widow live.
The 11 paragraph of staatblad:
About the family name (geslechtsnaam) of adopting parents, the name of the child adopt following the adopting parents name.
The 12 paragraph:
There is no different between the natural child and the adopt child
The 13 paragraph:
Compulsory the legal custody organisation, to regulated the widow adopting parents procedure, and keep the child adopt rich.
The 14 paragraph:
The child adoption served the law relationship between the adopt child and natural child, except:
1. Marriage prohibitation with family strap.
2. The rule of criminal law from family strap
3. The witness at authentic official document
The 15 paragraph:
The child adopt can not be canceled with them alonely, morever the child adoption without a true procedure or without legal notary public called as illegal adoption.
The 6 paragraph
The child adoption must become from Tionghoa nation that have no get marriage and have no a child, and have no adopt with other person.
3. Adoption perspectif custom law
Adopt child prestige is difference with a natural prestige perspectif Jawa and Sunda culture that use a patrilinial sistem in their heredity , like Bali.
The example of problem that happen in Bali:
The adopting parents as the adopt child legal parents. The adopted child and the adopting parents assume the same rights and responsibilities as natural born children and their parents. The adopt child will continue the adopting parents heredity.
The example of problem that happen in Java:
The adoption is not cutting the natural parents heredity. The adopt child just become the members of adopting parents. He will not continue the adopting parents heredity. The adopt child usually from their nephew, both of male or female. With opinion:
1. To weave the relationship with the adopt child natural parents
2. Sometimes the adoption done because a pity affection just to help the adopt child
3. The relation with a faith, that the adopting parents will have a child as soon as possible if they take an adopt child.
4. The adopt child will be the servant at adopting parents home
But however we have knowen that an adopting until the child become an adult person of course make a family relationship between adopt child and adopting parents. The household relationship makes a knit and obligation between them, and have a consistency to all of family rich.
The Raad Yustisi decision on 24 April 1940
According to West Java culture, the adopt child will get a heir from his adopting parents, if he had pass away and they have no child. This decision saw that the adopt child as the members of family, and not a heirs. Adopt child state is same with a widow at their knit property.
Reference
Afandi, Ali, Hukum Waris Hukum Kelurga Hukum Pembuktian, Jakarta: PT. Rineka Cipta, 1997
Soimin Soedaryo, Hukum Orang dan Keluarga, Jakarta: Sinar Grafika, 1992
Soepomo, bab-Bab Tentang Hukum Adat, Jakarta: PT.Pradnya Paramita, 1994
Amin, Islamic Law and its Implication for Modern World, London: Billing and Sons, 1989
Arbetmen, Lee, Street Law Seventh Edition, New York:Mc Graw Hill Glencoe
Undang-Undang tentang Amandemen Peradilan Agama, edisi 2009
