Legal Jurisprudential Investigation of Maternal Child Custody: Challenges and Solutions

Subject Areas : فصلنامه مطالعات میان رشته ای فقه

Ameneh Mazlumzadeh ¹ , Abdolreza Jamalzadeh ² , Roghayeh Shahabi ³

1 - PhD Student in Jurisprudence and Fundamentals of Islamic Law, North Tehran Branch, Islamic Azad University, Tehran, Iran.
2 - Associate Professor, Department of Jurisprudence and Fundamentals of Islamic Law, North Tehran Branch, Islamic Azad University, Tehran, Iran
3 - Department of Jurisprudence and Fundamentals of Islamic Law, Varamin-Pishva Branch, Islamic Azad University, Varamin, Iran

Received: 2022-03-17 Accepted : 2022-05-15 Published : 2022-04-21

Keywords: mother, child, guardianship, Custody, father, Paternal Grandfather,

Abstract :

Custody of the child by the mother is one of the important issues that has been discussed in jurisprudence and law. In this article, an attempt has been made to examine the challenges facing child custody by the mother and, if possible, to provide solutions to address these challenges. The research method of this article is descriptive-analytical and the library method has been used. Maternal custody faces two important challenges; Lack of guardianship of the mother over the child and revocation of the mother's custody in case of remarriage. Prohibition of maternal guardianship over the child is absolutely unacceptable because the mother is more compassionate and kind in protecting the child and her property, while in today's society and also due to the ability of women in managing family affairs and outside the family, maternal guardianship over the child, accepted. In the case of remarriage, such a condition can not be imposed on the mother alone, while for men there is no such restriction and the mother can be prevented from remarrying by creating fear in her. From the jurisprudential point of view, the ruling of compulsory guardianship is not one of the rules of worship but one of the rules of reason. On the one hand, with the shrinking of the family in the present age, and on the other hand, the rising level of education and social presence of women, forgery of forced guardianship for mothers and the possibility of remarriage of women is the most important way to solve the existing challenges.