Custody Rights Research Articles

Implication of condemnatoir verdict in the case of child custody rights in the legal way of The Denpasar Agency (Case study of case No. 358/PDT. G/2023/PA. DPS)

This study aims to find out the implications of condemnatoir decisions in child custody cases in the jurisdiction of the Denpasar Religious Court, and the obstacles faced in the implementation of the execution of child custody decisions in this jurisdiction. The study employs both normative and empirical approaches, focusing on the norm vacuum regarding the enforcement of Hadhanah (child custody) decisions. The data analysis involves a legal analysis of the normative sources to interpret and evaluate the current laws, complemented by qualitative analysis of empirical data to identify patterns, issues, and challenges in the execution process. The research offers valuable insights into the practical difficulties of enforcing child custody rulings, which could inform legal reforms or improvements in the judicial process to better protect the interests of the child and ensure compliance with judicial decisions.

Legal Protection for Wives as Victims of Domestic Violence in Terms of Obtaining Custody Rights for Minors

This research article is entitled Legal Protection of Wives as Victims of Domestic Violence in Terms of Obtaining Custody Rights for Minors. The type of research used in this study is normative, namely based on the applicable laws and regulations (positive law) using a legal and conceptual regulatory approach. Where in all the legal materials that have been collected will be processed and analyzed systematically which are presented in the form of descriptions based on theory and legal principles so as to obtain clear conclusions and descriptions in discussing the problem. Based on the research method as mentioned above, the following discussion can be produced: A wife has rights as a victim of domestic violence. These rights are regulated in articles of Law No. 23 of 2004 concerning the Elimination of Domestic Violence.

Problems Related to the Exercise of Custody Rights in Algeria: Between Legal Texts and Judicial Practice

Problems Related to the Exercise of Custody Rights in Algeria: Between Legal Texts and Judicial Practice

Prototype of Fiduciary Guarantee in Islamic Law

Fiduciary guarantees are material guarantees, which at first glance have similarities to pledge guarantees in Islamic law. This research will attempt to answer three main problems, what is the prototype of fiduciary guarantees in the thinking of scholars from the four schools of jurisprudence? What are the reasons and arguments put forward by these scholars regarding the four crucial factors related to fiduciary? Whose opinion is closer to fiduciary guarantees in Indonesia? The research results conclude that the prototype of fiduciary guarantees in Islamic economics already exists. This prototype can be seen from four crucial factors in the practice of fiduciary guarantees, namely the handover of collateral objects, control of collateral objects, use of collateral objects by the debtor and the creditor's rights if the debtor defaults when projected into the collateral. Of the four factors of fiduciary guarantees, the majority of ulama, namely Hanafiyah, Malikiyah, Syafi'iyah and Hanabilah, have the same opinion. They only differ regarding the execution of collateral if the debtor defaults. The reason they developed in relation to the four crucial factors in fiduciary guarantees is that the handover of marhun is an absolute characteristic of the existence of a rahn contract. While in control of the collateral or marhun, seeing that the marhun is rahin's property and then the control rights are transferred to the murtahin, rahin will be able to borrow the original marhun with the murtahin's permission. Including when borrowing marhun from the murtahin's custody rights, the rahin can also use the marhun with the murtahin's permission. In connection with the crucial factors that exist in the practice of fiduciary guarantees, it is the opinion of Syafi'iyah scholars that is closest to fiduciary guarantees.

THE APPLICATION OF JOINT CUSTODY CONCEPT IN RELATION TO THE CUSTODY OF THE CHILD

<span lang="EN-US">In Indonesia, the execution of court decisions regarding child custody is still a matter of debate among legal experts because the object is a person (human), not an inanimate object. This research will focus on discussing how regulations and execution of court decisions regarding child custody are carried out as well as how the concept of joint custody can be applied to minimize disputes related to child custody. This research is normative juridical research with a statutory and conceptual approach. Even though there are no regulations in Indonesia that comprehensively regulate child custody or its execution, the execution related to child custody can still be carried out guided by generally applicable procedures regarding execution of court decisions. The execution of child custody rights carried out in this way has a low level of success and is prone to causing problems where children's rights which should be protected are violated. For this reason, it is hoped that the concept of joint custody can be applied to minimize the emergence of disputes related to child custody.</span>

Sole Custody and The Implication of Fault-based Divorce Under the Indonesian Legal System

This study analyses the reasons why most judges in Indonesia’s religious courts tend to rule in favour of the sole custody model over the joint custody model following a divorce, even though the state, through the Child Protection Act, has enacted regulations emphasizing the granting of child custody using the joint custody model. This study is an evaluative review of the dominant sole custody model decided in the Religious Court concerning the Indonesian divorce law system, which emphasizes that divorce must be filed for a reason. The study results show that the divorce law requiring divorce to be accompanied by a reason and adopted by the Religious Court makes Indonesia a country that adopts a fault-based divorce system. This impacts the contestation and efforts of one party to find fault with the other party through the proof process in the Religious Court. Furthermore, to show that one party is better and more moral, there is a struggle for child custody rights while affirming the presumption that the party winning child custody is the better and more moral party. This means that child custody is always given to one party, not to both parties. The Religious Court needs to consider the use of a no-fault divorce system for several reasons: (1) Islamic jurisprudence recognizes no-fault divorce, namely, divorce with khuluk (khul’), and (2) efforts not to defame the couple in court are more in line with Islamic teachings.

PELAKSANAAN PUTUSAN HAKIM TERHADAP PEMENUHAN NAFKAH ANAK PASCA PERCERAIAN (STUDI PENELITIAN DI MAHKAMAH SYAR’IYAH BIREUEN)

The judge's decision determines child custody after divorce. In some cases, the child's custody rights are given to the mother or father, and in implementation, there are parents who do not heed the results of the judge's decision, so that the plaintiff must carry out the execution by submitting the contents of the petition or withdrawing the point of claim such as the Syar'iyah Court Decision Number 594/ Pdt.G/2021/MS.Bir and Decision Number 97/Pdt.G/2023/MS.Bir. This research aims to find out and explain the analysis of the judge's decision regarding the fulfillment of child support based on the Syar'iyah Court Decision Number 594/Pdt.G/2021/MS.Bir and 97/Pdt.G/2023/MS.Bir and to find out the obstacles and the efforts taken in implementing the Shar'iyah Court Decision Number 594/Pdt.G/2021/MS.Bir and Decision Number 97/Pdt.G/2023/MS.Bir. This type of research is qualitative research with an Empirical Juridical approach, and the nature of the research is descriptive. Based on the results of the research, it is known that before determining the cost of child support rights, the judge first confirms the parties involved, then the judge will also analyze the ability of the party charged with child support due to divorce. There are no obstacles in implementing the Shar'iyah Court decision Number 594/Pdt.G/2021/MS.Bir and Decision Number 97/Pdt.G/2023/MS.Bir, and if the father does not fulfill his obligations as stated in the decision, then the father does not receive sanctions, because the court's obligations do not reach the stage of giving sanctions to the father, so the solution given is that the mother must apply for execution or submit a request for the contents of the decision. If this effort is also unsuccessful, then legal efforts can be taken that can protect children from irresponsible parental actions in Article 76 B and Article 77 B of Law Number 35 of 2014 concerning Child Protection.

Hak asuh anak pasca perceraian dalam perspektif hukum islam dan hukum positif di Indonesia

This article discusses child custody rights after divorce from the perspective of Islamic law and civil law. The provisions regarding child custody are contained in Law no. 1 of 1974, stated in article 54 paragraph (2) "That parents are obliged to look after their children until they marry or can stand on their own". In the system that has prevailed in many communities, the responsibility for caring for children is more suited to a woman. Because this is because most women with a "feminine" temperament tend to care, as if this care is natural for a woman. And based on a hadith from the Prophet sallallaahu'Alaihi wa Sallam, he said: "You have the right to take care of him as long as you have not remarried." (HR. Abu Dawud). This hadith shows that a woman (mother) has the most right to care for her child when her husband divorces her. However, the right to hadhalah does not always fall to the mother, the husband also has the right to have the same rights as the mother, if the conditions for determining the mother do not meet the criteria for providing for the child's interests, such as being apostate, having no noble character, being crazy, and so on. Because when it comes to raising children, the first thing that must be considered is the interests of the child and having the ability and ability to provide a sense of security to children who are victims of divorce.

Di Sebalik Isu Perkahwinan Nadrah: Tumpuan Terhadap Pandangan Ahmad Luthfi dalam Majalah Qalam (1950–1963)

The issue of Nadrah began to draw the attention of the world community in the early 1950s due to the trial of custody rights between her Malay adoptive mother and her Dutch biological parents. This event sparked a major polemic since it touched the sensitivities of the Malays and Muslims. Among the dominant issues in the Nadrah tragedy was the issue of Nadrah’s marriage, which had become the main topic in the newspapers and magazines at that time, including the Qalam magazine. Compared to other print media, the Qalam magazine seemed to emphasise more on reports that were based on Islamic beliefs and morals in relation to the issue of Nadrah. In relation to this, the current study examined the perception of Ahmad Luthfi, as a founder, publisher, and author of the Qalam magazine, on the issue of Nadrah’s marriage from the aspects of age limit for marriage, Islamisation and faith, women’s freedom, the role of kadi (a judge)/wali (Islamic legal guardian) and Islamic administrative law. The resources and materials in this article were obtained from the National Archives of Malaysia, Tun Sri Lanang Universiti Kebangsaan Malaysia Library, Universiti Malaya (UM) Main Library, UM Za’ba Memorial Library, UM Ahmad Ibrahim Library, UM Academy of Islamic Studies Library, and other sources. The findings of the study show that Ahmad Luthfi had a clear perception of the Islamic law based on the Al-Quran and Hadith. He would not compromise with those who undermined Islamic law. His views had invited positive and negative reactions from various parties.

Contemporary Islamic Law in Indonesia: the Fulfillment of Child Custody Rights in Divorce Cases Caused by Early Marriage

A marriage license in Indonesia is only allowed to be granted to a man and woman from age 19 and above. The aim is to prevent early marriages which are very vulnerable to divorce due to the psychological immaturity of the couple. For example, Kotagajah Timur was observed to have a common case of divorce among underage people that married due to pregnancy outside of marriage. Therefore, this descriptive-analytical field study was conducted based on a phenomenological method. Moreover, data were collected using observation, interviews, and documentation. The results showed that divorcees from early marriages were unable to fulfill the provisions of Child Custody Rights. This was observed from the fact that the couple did not provide the required child protection after the divorce in addition to the non-fulfillment of other rights such as Nasab, Nafkah, Care (Hadhanah), and Child Education Patterns. Furthermore, the mother is required by the law to have full custody while the father provides living expenses. This requirement is observed to have been ignored because the mother is underage and lacks the maturity to perform the necessary obligations such as caring for and educating the children. Therefore, the children are discovered to be under the care of the parents of the mother.

Custody and Obligations of Parental Alimation of Children After the Breakup of Marriage Due to Divorce in Terms of Law Number 1 Of 1974 Concerning Marriage

<p><em>The research entitled;Parents' Custody Rights and Alimentary Obligations for Children After Dissolution of Marriage Due to Divorce in View of Law Number 1 of 1974 concerning Marriage; was carried out in the jurisdiction of Jayapura City with the aim of finding out and analyzing the causal factors the occurrence of divorce and custody and fulfillment of parental alimony obligations towards children.</em></p><p><em>This research is empirical legal research using the Normative Juridical and Empirical Juridical approach methods. The Normative Juridical Approach is by reviewing the provisions of statutory regulations relating to the rights aspect of divorce and the legal consequences of divorce in relation to Custody Rights and Parental Alimony obligations following the dissolution of the marriage due to divorce, while the Empirical Juridical approach is by looking at the implementation of the provisions Laws relating to divorce and custody rights and parental alimony obligations apply in society. The results showed that the factors causing divorce in the city of Jayapura in general for the continuous disputes, disputes and quarrels triggered by the attitudes and behavior of both the husband and wife namely a. The existence of love with women and other men, b. Husband rarely goes home; c. Husband is light hand by beating the wife. Meanwhile, in most court decisions on divorce cases, the majority of judges decide that custody rights are given to the wife based on psychological considerations and legal considerations. The psychological considerations are because the children are still small and not yet mumayyiz so they still really need more attention from their mother, and the husband's morals are not good, so there are concerns that it will affect the child's psychological development during his growth period. Furthermore, regarding the fulfillment of alimony obligations in the context of the care and development of the child, in general it is not carried out well, generally parents (fathers) lack or neglect their alimony obligations towards the child on the grounds that they have a new family, because they are not given custody, because of their economic capabilities, so does not carry out his alimony obligations as ordered by the applicable statutory provisions.</em></p>

PERWALIAN (HAK ASUH) ANAK YANG DIBERIKAN KEPADA AYAH AKIBAT PERCERAIAN (STUDI PUTUSAN NOMOR 355/PDT.G/2022/PN JKT.UTR)

Child’s guardianship given to whom due to a divorce is not strongly regulated, but child custody disputes are decided by courts based on children’s interests. The decision of District Court Number 355/Pdt.G/2022/PN Jkt.Utr decides that the father receives the guardianship of the three children. The issues in this article are whether the judge's legal considerations in awarding custody of the kid to the father conform with Law Number 1 of Year 1974 on Marriage and Government Regulation Number 29 of Year 2019 on Terms and Procedures for Appointing Guardians and whether the guardianship (custodial rights) of the child is given to the father based on the best interest of the child according to best interests as outlined in Law Number 23 of 2002 on Child Protection, as revised by Law Number 35 of 2014. The judge's consideration is incorrect because it must be based on the interests of each child to achieve guardianship goals and be in line with the principle of the child's best interests. Girls should be assigned to mothers based on their interests in puberty, menstruation, physical changes, and feminine concerns. Women's faults as wives cannot be considered since a woman who is not good as a wife is not necessarily bad as a mother. It is preferable to grant the mother primary guardianship of daughters as long as the mother performs her tasks, duties, responsibilities, and obligations appropriately and fairly to protect the child's growth and best interests of the child.

Araucaria bidwillii genomics suggest Indigenous Peoples broadened translocation practices in response to settler colonialism

Abstract Retracing past anthropogenic dispersal of culturally important taxa offers insights to the biogeographic history of species, as well as the history of the people who interacted with them. Bunya Pine (Araucaria bidwillii Hook.) is a culturally and spiritually significant conifer tree for several Indigenous groups in eastern Australia. Sharing the edible nuts and attending Bunya gatherings is an important way for these groups to maintain their cultural connections and it has been hypothesized that prior to European colonization, Indigenous Peoples facilitated the dispersal of Bunya Pine as part of these ancient traditions. We used ethnohistorical information on the use of Bunya Pine by Indigenous Peoples to interpret genomic patterns within and between disjunct distributions of Bunya Pine. We found signatures of long‐term isolation within the Australian Wet Tropics (AWT) and extensive gene flow within southeast Queensland (SEQ) that does not fit models of faunal or passive dispersal. Within SEQ, we found greater population structure amongst sites known to pre‐date European colonization, than when colonial‐era planted sites were included in our analyses, suggesting that pre‐colonial translocation was sporadic or localized rather than systematic and widespread. Increased Indigenous translocations in conjunction with plantings by European settlers appears to have erased the natural pre‐colonial population structure of SEQ Bunya Pine. Our stairway plot models suggest sharp population decline of SEQ Bunya Pine in the early and late Pleistocene, though we did not find evidence that anthropogenic dispersal facilitated effective population size growth of the species in the Holocene. We concluded that pre‐colonial translocation of SEQ Bunya Pine was likely restricted by kinship‐based custodial rights, and that when Indigenous Peoples were displaced by European settlers, translocation was intensified to maintain cultural connectivity. This study is an example of how Indigenous Australian groups adapt plant management strategies to meet socio‐cultural needs and demonstrates the potential for plant genomics to supplement Indigenous Biocultural Knowledge that has been impacted by colonial dispossession. Read the free Plain Language Summary for this article on the Journal blog.

Parenting Patterns of Substitute Parents for Children of Indonesian Migrant Workers

This research is motivated by the importance of parenting education for the families of Indonesian Migrant Workers (TKI) working abroad, especially in the Donomulyo District, Malang Regency, which has become a major concern for the government. With a focus on strengthening social capital and Spiritual Capital, this study aims to address horizontal conflicts resulting from poverty conditions and conflicts among families and social environments. This dissertation focuses on strengthening social capital in parenting education for the families of Indonesian Migrant Workers (TKI) working abroad, with a study on the behavior of caregivers and children from TKW familiesin the Donomulyo District, Malang Regency. It aims to provide insights and practical recommendations to support the fulfillment of child custody rights in the context of TKI families working abroad by strengthening social capital and Spiritual Capital. The research uses a qualitative method, involving interviews, documentation, and observation, and uses interactive data analysis as a data analysis technique. By exploring how strengthening social capital can influence parenting practices in the context of poverty and horizontal conflicts, as well as how this can support the fulfillment of child custody rights. The results show that poverty conditions drive the choices of migrant laborers, creating closed horizontal conflicts within families and social environments. To create social concern for the children of migrant laborers, strengthening Spiritual Capital in social capital is needed, including Bridging Social Capital and Bonding Social Capital, oriented towards family and community actors in shaping attitudes and behaviors that are friendly to children. Implications include strategies to increase social capital and Spiritual Capital, as well as the importance of developing deep communication and social support between families and communities.

Akibat Hukum Tidak Terlaksananya Hak Asuh Anak Pasca Perceraian Orang Tua Di Pengadilan Agama Gorontalo

This research aims to find out what child custody rights are like after parents' divorce in the Gorontalo Religious Court and what the legal consequences are for child custody after parents' divorce. The method used in this research uses a normative type of research. This research uses a comparative approach (Comparative Approach) and a fact approach (The Factapproach). The results of this research found that divorce between husband and wife has a big impact, especially on child custody rights after parental divorce with an approach from the perspective of Islamic law and the Constitution. Law Number 1 of 1974 concerning Marriage. The Gorontalo Religious Court's decision regarding child custody is also a supporting factor, highlighting the best interests of the child as the main priority. Interviews with Gorontalo Religious Court Judges show that the court's adaptation to modern family dynamics and the involvement of children in the decision-making process is in the spotlight. In concrete cases, the research describes two decisions related to child custody, highlighting the importance of considering casuistry and the best interests of the child in making custody decisions. This research seeks to provide a holistic and sensitive picture of the complexity of child custody cases with a focus on child welfare as the main priority. Divorce between husband and wife raises responsibilities that must be maintained, especially regarding children's rights. In line with Law Number 23 of 2002 concerning Child Protection, parents have primary obligations, including caring for, nurturing, educating and protecting children. This thesis explains that after divorce, children become direct victims by being separated from their parents. Child care, especially the cost of the hadhanah, is the father's responsibility according to the Compilation of Islamic Law Article 156 letter d. However, if parents do not fulfill their obligations, child custody rights can be revoked at the request or coercion of the court

Implementation of Ex Officio Rights of Judges of the Kediri District Religious Court: An Analysis of Non-Cumulation of Divorce and Child Custody Rights

This research highlights the phenomenon that occurred in the Kediri Regency Religious Court regarding the cumulation of lawsuits, it was found that there were still many parties who filed a pure lawsuit without filing a lawsuit in cumulation. The parties often only focus on the divorce lawsuit without including aspects regarding child custody, which can be cumulated according to Article 86 paragraph (1) of Law No.7 of 1989 concerning Religious Courts. The focus of this research is to find out why the parties do not cumulate the divorce lawsuit with child custody and the implementation of the ex officio rights of the judge of the Kediri Regency Religious Court. The research method used is juridical-empirical with a sociological juridical approach. Primary and secondary data were obtained through interviews and documentation. The results of the study concluded that some of the reasons the parties did not cumulate the lawsuit with child custody included ignorance of the parties regarding the cumulation of the lawsuit, the role of legal counsel, the existence of a prior agreement, focus on divorce priorities. Judges of the Kediri Regency Religious Court have applied the applicability of ex officio rights as a privilege owned by judges to impose decisions aimed at providing benefits, namely the fulfillment of the rights of those concerned. Judges can use ex officio rights in divorce cases to give the wife and children their rights such as iddah, mut'ah, madhiyah, and child maintenance. Judges cannot exercise ex officio rights in a contested divorce and cannot impose a decision that is not in the argument of the lawsuit such as a case regarding child custody because of Ultra Petitum Partium.

The Urgency of Child Custody of Divorce Victims in the Perspective of Customary Law in accordance with the Civil Code

Divorce is the legal breaking of the marriage bond between husband and wife. Divorce can cause child custody issues. The purpose of this study is to discuss the position of children in marriage and child custody as a result of divorce from the perspective of customary law according to the Civil Code. This research method is normative juridical, with data search techniques through literature review of books, legal sources and relevant scientific journals. The results explain that the position of children in marriage is divided into legitimate and illegitimate children. Determining child custody is an important thing to do after a divorce to avoid disputes. Laws on marriage, divorce and child custody are contained in Law No. 1 of 1974 Chapter XI, KHI Chapter XV and the religious courts contained in Law no. 50 of 2009. According to Law No. 1. of 1974 the responsibility of caring for children is the responsibility of both parents as long as the child is under 18 years of age and the parents' rights are not revoked, and according to KHI children under 12 years of custody fall on the mother but when they become adults they can choose custody. According to the Civil Code, the court has the authority to decide whether one of the parents becomes the owner of custody by considering the child's needs and child protection. Article 230 states that parents who are unable to exercise their custody rights have a permanent obligation to provide maintenance. Whereas customary law in determining child custody takes into account kinship, the child can be the custody of the father or mother, but when he becomes an adult he returns to customary custody, but when he is young custody falls on the mother and the father is still obliged to provide for the child until he is an adult.

Child Custody - The Nuances that are Involved

Numerous queries may arise in the mind of a child during the process of divorce between its parents. All of a sudden there might be a shift in its environment and would take time to adapt to the new house. But how does the court decide the custody of the child? Do mothers have an upper hand, is one of the questions that is being explored along with various other topics such as the custody rights of a legitimate and illegitimate child, custody of the child when both parents are unfit, custody of a child born out of wedlock, so on and so forth. It is interesting to note that certain differences can be found in the personal laws that govern the custody of a child. The personal laws see the legitimate and illegitimate child and their rights in a different light. The step-parent adoption is a topic that has been discussed in this paper. Isn't it interesting to note that the age under which a child is considered for a guardian differs from country to country? This is so because the laws also are a reflection of the culture that a country has. Father’s rights in custody have also been explored as there are not many cases under which the husband receives the custody of a child because in India it is presumed that Mothers are better care-takers. This paper revolves around the custody of a child under distinct personal laws and covers the intrusive questions that one ponders along the way.

Education of special children within the scope of custody rights in the Turkish civil code

The education of the child is both a right and an obligation for the mother and father who have the right of custody. For this reason, when exercising parental authority, the best interests of the child should be prioritized. Provisions regarding the education of children are regulated in the second book of the Turkish Civil Code titled Family Law, in the sixth section titled Custody under the second subsection titled Kinship. This study aims to discuss the education of special children within the scope of custody rights according to the Turkish civil code. The legislation has introduced a clear regulation to ensure that the educational rights of children with special education needs are not violated, even by the parents who have custody rights. The Turkish Civil Code reveals that when parents exercise their right of custody, which is both a right and an obligation, they must take into account the principle of protecting the interests of the children, and that the care and education of the children must be carried out with the decision taken in the light of this principle. Keywords: Custody; education; family union; special child; special education; Turkish civil code

Kedudukan Hak Asuh Anak Pasca Terjadinya Perceraian dari Istri yang Murtad menurut Hukum Islam

Provisions for Child Custody Based on the Compilation of Islamic Law are Islamic, mature, of sound mind, trustworthy, unmarried, able to educate children. There are no hadanah for non-Muslims and require women who carry out hadanah (caring for children) to be Muslim, and there are no rights and authority for those (women) who are apostates (non-Muslims) to care for children. This research aims to find out more about the provisions on child custody based on the compilation of Islamic law and child custody due to divorce due to apostasy from a wife according to the compilation of Islamic law using normative methods that collect and analyze data so as to obtain a clear picture of the problem being discussed. written work, with the aim of depicting or illustrating the occurrence of a problem systematically, factually and accurately as well as in order to obtain the truth in the process of perfecting this writing. The results of the research show how the provisions for child custody are based on a compilation of Islamic law and child custody rights from divorce due to apostasy according to the compilation of Islamic law. Key words: child custody, divorce, apostate wife.