THE BEST INTEREST OF THE CHILD TERHADAP PEMBERIAN HAK ASUH ANAK KEPADA IBU YANG MURTAD (STUDI PUTUSAN NOMOR 314/PDT.G/2020/PA.SAL)

Yusron Fikri Juneri, NIM.: 20103050125 (2024) THE BEST INTEREST OF THE CHILD TERHADAP PEMBERIAN HAK ASUH ANAK KEPADA IBU YANG MURTAD (STUDI PUTUSAN NOMOR 314/PDT.G/2020/PA.SAL). Skripsi thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

Hadanah is a post-divorce issue concerning child custody. Article 105 (a) of the Compilation of Islamic Law stipulates that a mother is given priority for hadanah (custody) when the child has not yet reached the age of discernment (mumayyiz). The validity and legitimacy of custody are subject to certain conditions, one of which is the requirement to be of the Islamic faith. This requirement, determining whether a custody claim is valid or not, is outlined in the Supreme Court Jurisprudence No. 210/K/AG/1996. The issue of granting custody to a mother who has apostatized is addressed in Decision No. 314/Pdt.G/2020/PA.Sal, which did not provide legal reasoning in its ruling. This lack of reasoning motivated the author to conduct research on this decision. The aim of the research is to determine whether the principle of the best interests of the child has been applied in the determination of hadanah. This research is qualitative, descriptive-analytical in nature. The approach used is a juridical-empirical one, based on phenomena observed in the court. The research employs primary data, including court decisions and interviews with judges from the Salatiga Religious Court. This is supported by secondary data, including primary legal materials such as legislation (Law No. 35 of 2014 on Child Protection, Law No. 1 of 1974 on Marriage, Compilation of Islamic Law), and secondary legal materials such as books on related law and official data from government agencies. The findings of the research indicate that custody decisions are based on the facts presented during the trial. Judges adopt a passive role in deciding cases, provided that the claims made in the demands do not contravene existing laws. All matters concerning the child should prioritize the best interests of the child. The best interests principle has been fundamental for judges in determining custody arrangements, aiming to protect the child’s mental health, which can impact their development. A mother who has apostatized may still hold custody rights, provided there are no indications of poor behavior in nurturing, maintaining, or providing care. The mother can retain custody until the child reaches the age of discernment, at which point the child can independently decide whether to remain with the mother or move to the father’s custody.

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