نوع مقاله : مقاله پژوهشی
نویسنده
استادیار گروه آموزش معارف اسلامی، دانشگاه فرهنگیان، تهران، ایران
کلیدواژهها
عنوان مقاله English
نویسنده English
1. Introduction
The institution of custody is at the center of the intersection of parental rights, their duties, and the best interests of the child. The main issue of this research is the existence of a conceptual paradox in the legal nature of custody, which in legal provisions such as Article 1168 of the Iranian Civil Code is considered to be both a “right” and a “duty” of parents. This seemingly contradictory duality raises a fundamental question about how the authority arising from the right and the obligation arising from the duty can be combined in a single institution. This paradox creates interpretive tensions in judicial rulings and scholarly discourse. While parental authority suggests discretionary power, the duty component imposes mandatory care, creating potential conflicts. This study aims to analyze this dual nature through jurisprudential foundations and legal principles to propose a coherent theoretical framework for resolving custody disputes while prioritizing the child's welfare in Islamic and Iranian law.
Research Question(s)
The primary research question guiding this investigation is: How can the authority derived from a right and the obligation derived from a duty be coherently reconciled within the singular institution of custody (haḍānat), thereby resolving its inherent conceptual paradox? Subsidiary questions include: What is the original ontological nature of custody? How does this nature transform in the context of parental conflict? And what are the precise legal implications of such a transformation?
2. Literature Review
In reviewing the research background, three classical approaches can be identified: right-based (with an emphasis on parental authority), duty-based (with a focus on the nature of guardianship), and classical hybrid (custody as a combination of both). Recent studies have also sought to explain this relationship by separating concepts such as custody and guardianship, or by presenting staged models (such as the transformation of custody from a right to a duty in the event of refusal). However, the existing theoretical gap is the inability of these perspectives to provide a coherent and non-contradictory framework that can simultaneously explain the original nature of the institution, how it is transformed during the dispute stage, and the legal effects of this transformation. This study seeks to fill this gap.
3. Methodology
This research is conducted using a descriptive-analytical method and based on library research. The scope of the research is the sources of Imami jurisprudence and Iranian statutory law (especially civil law), and it systematically criticizes existing perspectives to argue for the proposed theory.
4. Results and Discussion
The analysis yields a central finding: the inherent, original nature of custody is guardianship-based (wilāyi) and fundamentally duty-based. It is an obligation tied to the guardianship of the child. However, a critical distinction emerges in the context of parental conflict. In this second stage, the legislator intervenes to resolve the dispute by legally creating a "Right of Custody" (haqq al-haḍānah). This is not the core duty of care but an "entitlement" or "privilege" granted to the parent deemed more suitable. Therefore, what is renounceable is the "claim to undertake the duty" during conflict, not the performance of the duty itself, which retains its obligatory nature.
This distinction is the key to resolving the paradox of right and duty in custody. In fact, in the normal stage, parents are obliged to care for the child; however, when both parents claim the right to fulfill this duty, the law grants one of them the privilege of undertaking the duty. This privilege constitutes a legal right established by the legislator to resolve the conflict.
This leads to the proposed "Two-Stage Model of Real Combination":
· Stage 1 (Normal Status): Custody operates as a custodial duty (taklīf wilāyi). The best interests of the child are the overriding consideration. At Stage 1 (Normal Status), the duty-based aspect of custody predominates.
· Stage 2 (Conflict Status): Custody manifests as an administrative right/privilege (ḥaqq intifāʿi). The best interests of the child are the primary criterion for awarding this privilege. At Stage 2 (Conflict Status), the right-based aspect of custody becomes prominent as a mechanism for resolving the dispute.
This model, on the one hand, avoids reductionism by not reducing custody to either a mere right or a mere duty and, on the other hand, preserves the internal coherence of the institution of custody by distinguishing its different stages. Its practical application in the judicial system contributes to greater clarity in legal reasoning and to reducing prolonged disputes.
5. Conclusion
This study concludes that the conceptual paradox in custody law stems from a conflation of two distinct operational stages of a single institution. The proposed "New Theory of Real Combination" and its "Two-Stage Model" resolve this paradox by providing a coherent, non-reductionist framework. By separating the duty-based essence of custody from the right-based mechanism for resolving conflicts, the theory offers a powerful analytical tool. It not only explains the existing jurisprudential doctrine but also provides a clear foundation for judicial reasoning, legislative reform, and achieving greater coherence in family law systems facing similar conceptual challenges.
کلیدواژهها English
