Document Type : Research/Original/Regular

Author

• Amin Soleyman Kolvanaq

Assistant Professor, Department of Islamic Jurisprudence and Law, Faculty of Theology and Islamic Sciences, Tabriz University, Tabriz, Iran

Abstract

According to Article 1169 of the amended Civil Law of 2012, for the custody of a child whose parents are separated, the mother has priority until the age of 7, and after that it is the father. One of the problems in today's society is that at the time of divorce, the wife opposes the custody of the child being given to her. A part of the total dowry should be given to the husband that, in order to divorce the wife, the husband asks her to hand over the custody of the child who is under 7 years old to the husband. Should they agree on its handover? The study of judicial procedure and jurisprudential sources indicates a difference of opinion. The custody groups consider absolute custody - either from the father or from the mother - to be inalienable and consider the agreement implying its handover to be invalid. Some groups consider custody to be absolutely revocable and therefore consider the agreement leading to its transfer to be valid. Some consider custody from the mother's side to be revocable, but not from the father's side. By researching the jurisprudential foundations of the issue, it became clear that the opinion of those who believe in authenticity is in agreement with the evidence, but the most important point in the agreement on the transfer of custody from the perspective of the jurisprudential foundations, the family support law, and the civil law is the condition of respecting the ......

Highlights

The root of the word "Hidanat" (custody) is "Hidn," and "Hidn" refers to the region between the armpit and the flank (Fiumi, 1993). It also refers to the act of a bird laying on its egg to give birth to a chick (Ibn Manzoor, 1993); Kindergarten is also called "al- Hidanat" (Bostani, 1996). The person who exercises guardianship is known as Hadin or Hadinah (Azhari, 2000; Farahidi, 1988). Custody includes everything that is in the child's best interest, such as caring for him, putting him to bed, hugging him, applying kohl, applying oil, cleaning, washing dirty clothes, etc., which a woman is more qualified to do than a man, due to more emotions or more appropriate morals in women. (Shaheed Thani, 1992; Safai, 2012; Najafi, 1983).

Article 1168 of the Civil Code recognizes custody as both the parent's right and responsibility. According to Article 1169 of the same law, as amended in 2003, the mother has primacy over the custody of a child whose parents are divorced until the child reaches the age of 7, after which the father has priority.

A person who performs custody is called a guardian (Azhari, 1421; Farahidi, 1409). In the term, custody is everything that is beneficial to the child, such as taking care of him, putting him in his bed, lifting him up, applying cold cream, applying oil, cleaning, washing old clothes, etc., which a woman is more qualified to do. It is from a man, and this is due to more emotions or more suitable ethics of a woman in these matters (Shaheed Thani, 1413; Safai, 1391; Najafi, 1404). Article 1168 of the Civil Code considers custody to be both the right and the duty of spouses. According to Article 1169 of the 1982 amendment of the same law, for the custody of a child whose parents are separated from each other, the mother has priority until the age of 7, and after that, it is with the father.

A prevalent case in divorce cases involves the conceding of dowry by the wife in return for custody or the husband's conceding of divorce right in exchange for custody of the child. This case raises the contentious question of whether the transfer of custody can be the subject of legal action. The resolution of the questioning depends on the possibility of either spouse terminating the custody of the child, thereby enabling them to reach a mutually agreeable decision. The examination of judicial procedure and jurisprudential sources reveals that opposing viewpoints exist regarding this issue.

Method

The present research is a descriptive-analytical and library study in which the author obtained the opinions of jurists and jurists by consulting jurisprudential and legal sources. After studying the judicial opinions, I explained the difference in the judicial procedure and clarified the legal status of ceding custody in exchange for conceding dowry or getting a divorce.

Results

Through an analysis of the concept of custody and its revocability, it has been determined that custody lacks a shari'a truth and is instead a construct of jurists. However, its very nature pertains to the care and management of matters related to the child, as evidenced by narrative topics, and is rightfully the child's entitlement. It has been clarified that no evidence indicates that parental obligation is mandatory. However, given that the father is responsible for expenses related to custody, foster care wages, and child alimony, it can be inferred that such an obligation is mandatory. This is because the obligation of expenses cannot exist without the obligation of its subject, namely custody.

The concept of entitlement discussed in the aforementioned narratives pertains to the context of conflict. Following the lack of evidence to refute custody, the validation of evidence, and the prioritization of juridical experts on the imperative of upholding the child's best interest, it was determined that no legal impediment exists to reaching a consensus on custody. From a legal perspective, reaching an agreement on custody arrangements is permissible, as Article 41 of the Family Protection Law explicitly allows for such agreements.

 Articles 43 and 45 of the same law also emphasize the importance of prioritizing the child's best interests in custody matters. Notably, these provisions do not prioritize the rights and duties prescribed by Sharia law over the child's best interests. Rather, the court's determination of the child's best interests suffices to establish a custody agreement. Article 1173 stipulates that in situations where the mother has custody of a child and the child's best interests are not being adequately addressed, the court will render a decision that is in the child's best interest.

Discussion & Conclusion

The need to consider the child's best interests in custody agreements has the consequence of prohibiting either the mother or the father from having custody before or after the age of seven. Consequently, the essential principle is that the mother or father must be qualified to care for the child. The feasibility of relinquishing custody in the context of a custody agreement is contingent upon the type of legal proceeding in which custody was granted. However, regardless of the legal context, the child's welfare must be safeguarded and upheld throughout the duration of the agreement.

 In the event that it is established that the child's best interests are not being met, not only may the revocation of custody be permissible, but the continuation of custody may also be deemed invalid due to its inconsistency with the child's best interests. Given the presence of divergent viewpoints emanating from the various branches of the Supreme Court, it is recommended that a consolidated opinion be issued to resolve the conflict arising from the judicial opinions.

Keywords

• Handing over custody
• right
• interest of the child
• agreement

Main Subjects

• Custody