PSYCHOLOGICAL CONSIDERATIONS IN RELIGIOUS COURT JUDGES’ DECISIONS ON CHILD CUSTODY

Abstract

The duty to provide for and care for a child is a shared responsibility between the mother and father. This duty does not cease with the dissolution of the marriage. Where a dispute arises regarding child custody, the court may issue a ruling based on submissions from the parties. There are several psychological considerations that judges in religious courts must take into account when determining child custody, so that the child’s fundamental rights and best interests are not compromised. The aim of this article is to examine the psychological considerations taken into account by judges in religious courts when determining child custody. This study employs a descriptive-analytical method, with the primary data source being the rulings of religious court judges, supported by several secondary data sources in the form of literature examining child custody. The findings of the discussion indicate that there are several psychological considerations frequently taken into account by judges in religious courts when determining child custody; amongst these, judges consider the child’s basic needs and fundamental interests, the physical and emotional closeness between the child and the parents, and the differences in growth and development between boys and girls, which require different approaches. In making these considerations, judges draw upon Article 165 of the Compilation of Islamic Law, Articles 41 and 45 of Law No. 1 of 1974, Law No. 23 of 2002 as amended by Law No. 35 of 2014 on Child Protection, and the Convention on the Rights of the Child, adopted by the United Nations in 1989 and ratified by Presidential Decree No. 36 of 1996. Consequently, the religious court judge held that hadhanah is not, in fact, a right of the parents but rather a right of the child which constitutes an obligation on the part of the parents.