Maqasid Al-Syariah Sebagai Problem Solver Terhadap Penetapan Hak Asuh Anak Pasca Perceraian

Abstract

Indonesia regulates child custody in the KHI, and emphasizes the mumayyiz of the child. Article 105 KHI, The judges seem to agree on this rule and most of them implement it. However, in practice, judges sometimes assume that not all mothers are capable of accepting caregiving responsibilities without careful consideration. The judges saw that some mothers had bad traits and so on. So the judges in determining child custody often return to the concept of benefit. This study uses a qualitative analysis technique with a philosophical approach, the results of the study show that child custody rights are the rights of a mother in the event of a divorce, but that right can be transferred to the father or someone else. Because the rights of the child must come first by looking at the benefit side of the child, therefore the maqasid al-syariah method can be a problem solving to determine who is most entitled to become a post-divorce caregiver.