ANALISIS YURIDIS PERTIMBANGAN HAKIM DALAM MENETAPKAN HAK ASUH ANAK KEPADA AYAH (STUDI PUTUSAN PENGADILAN AGAMA BALIKPAPAN NOMOR XXX/XXX/XXX/PA.Bpp)

Muhammad Dzakwan Tsaqibulhanif, NIM.: 22103050132 (2026) ANALISIS YURIDIS PERTIMBANGAN HAKIM DALAM MENETAPKAN HAK ASUH ANAK KEPADA AYAH (STUDI PUTUSAN PENGADILAN AGAMA BALIKPAPAN NOMOR XXX/XXX/XXX/PA.Bpp). Skripsi thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

Child custody (hadhanah) disputes following divorce constitute one of the most significant issues in family law, requiring comprehensive judicial consideration to ensure the protection and welfare of children. In principle, Article 105 of the Compilation of Islamic Law grants priority custody rights to the mother for children who have not yet reached the age of discernment (mumayyiz). However, in the Decision of the Balikpapan Religious Court Number XXX/XXX/XXX/PA.Bpp, the panel of judges awarded custody to the father based on the mother’s proven serious moral misconduct. This decision is noteworthy because it demonstrates a departure from the general legal provision in order to pursue the child’s welfare and protection. This study aims to analyze the fulfillment of children's rights protection in the decision based on the Child Protection Law and to examine whether the judges’ reasoning is consistent with the principle of The Best Interests of the Child. This research is a normative legal study employing both the statutory approach and the case approach. The primary legal source is the Decision of the Balikpapan Religious Court Number XXX/XXX/XXX/PA.Bpp, while secondary sources consist of legislation, legal literature, academic journals, and other relevant references. The collected data were analyzed qualitatively using a deductive method. The findings indicate that the panel of judges applied a rechtsvinding approach by prioritizing the protection of the child’s morality as the basis for transferring custody to the father. The decision was grounded on facts established during the trial, which proved the mother’s serious moral misconduct and its potential impact on the child’s developmental environment. From a child protection perspective, the decision may be viewed as a preventive measure to safeguard the child’s moral, mental, and spiritual development. Nevertheless, when examined through the principle of The Best Interests of the Child, several critical issues remain. These include the child’s emotional attachment to the mother as the primary caregiver, the father’s readiness to provide direct care despite his professional commitments, the potential delegation of caregiving responsibilities to third parties, and the child’s right to maintain a healthy relationship with both parents. Therefore, while the decision fulfills the objective of protecting the child’s moral welfare, it does not fully satisfy the holistic implementation of the principle of the best interests of the child, which encompasses physical, psychological, emotional, social, and spiritual well-being.

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