نوع مقاله : مقاله پژوهشی
نویسنده
دکتری فقه و حقوق خانواده، پژوهشگاه فقه نظام، مرکز جامع علوم اسلامی ولی امر (عج)، قم، ایران.
کلیدواژهها
عنوان مقاله English
نویسنده English
This research uses a descriptive-analytical method to examine the paradox of the “right to custody,” which on the one hand implies a “right” and on the other hand, it oversees “custody.” A review of existing perspectives shows that the rights-based, duty-based, and classical hybrid approaches alone are unable to explain this institution. In response, the “new hybrid theory” has been chosen as a theoretical framework that considers the original nature of custody to be guardianship, but in the “circumstance of exaggeration,” it forges the “right to custody” as a privilege for a more deserving person. Accepting this theory has the following legal implications: First, establishing a two-stage model (duty of guardianship in a normal situation and granting a privilege in case of a dispute). Second, a logical explanation of the principles of judicial decision-making and. Third, a precise interpretation of the possibility of abolishing the right to custody. Fourth, determining the position of the child’s best interests as the axis in the duty stage. Fifth, providing a framework for resolving conflicts in similar institutions such as compulsory guardianship. As a result, this theory, by overcoming reductionism, resolves the apparent paradox and provides a means for unifying practice in family law.
کلیدواژهها English
