Rechtvinding in Resolving Child Custody Disputes

DOI

10.2991/978-2-38476-218-7_60How to use a DOI?

Keywords

Rechtvinding; Determining; Child custody

Abstract

Deciding child custody is an intricate and delicate legal matter that necessitates striking a balance between legal considerations and the child’s welfare. In the realm of Islamic law, especially within Fiqh (the study of Islamic law), the allocation of child custody frequently involves adherence to distinct madhabs or schools of thought, leading to differences in decision-making processes. This study aims to examine how the legal process is applied or found in resolving disputes related to child custody. The research employs a normative legal method (juridical-normative). The results indicate that Rechtvinding, or legal search, is the process of finding legal solutions in a specific context. In the field of child custody, especially in Islamic and Indonesian Marriage Law, the concept of “Hadhanah” is relevant to the principles of rechtvinding. Articles 104 and 105 of the Compilation of Islamic Laws (KHI) show legal concern for child protection, emphasizing custody rights based on family circumstances. Law No. 1 of 1974 emphasizes parental responsibilities, and the court plays a role in hadhanah issues, reflecting a holistic legal search. Civil Code Articles 319 H and 319 F adjust decisions on parental release and dismissal based on specific child circumstances, aligning with rechtvinding’s context-specific legal determination. The views of Islamic legal experts on the duration of child custody reflect variations, aiming for equality and justice after divorce, in line with rechtvinding. The steps in determining child custody, covering balance, parent-child relationships, the child’s physical and emotional aspects, and the best interests principle, underscore the need for a holistic legal search tailored to the specific circumstances of each case.

Copyright

© 2024 The Author(s)

Open Access

Open Access This chapter is licensed under the terms of the Creative Commons Attribution-NonCommercial 4.0 International License (http://creativecommons.org/licenses/by-nc/4.0/), which permits any noncommercial use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

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TY  - CONF
AU  - Ahmad Muhamad Mustain Nasoha
AU  - Adi Sulistiyono
AU  - Mudhofir Mudhofir
PY  - 2024
DA  - 2024/02/22
TI  - Rechtvinding in Resolving Child Custody Disputes
BT  - Proceedings of the International Conference On Law, Economic & Good Governance (IC-LAW 2023)
PB  - Atlantis Press
SP  - 359
EP  - 363
SN  - 2352-5398
UR  - https://doi.org/10.2991/978-2-38476-218-7_60
DO  - 10.2991/978-2-38476-218-7_60
ID  - Nasoha2024
ER  -