Private Law Research

Jurisprudential-Legal Analysis of Custody Rights with Emphasis on Conceptual Paradox and the Theory of Modern True Composition

Document Type : Research Paper

Author

Hojjatollah Dehghani

Assistant Professor, Department of Islamic Studies Education, Farhangian University, Tehran, Iran

https://doi.org/10.22054/jplr.2026.89011.2972
Abstract
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.

Keywords

Right of Custody
Conceptual Paradox
New Theory of Real Combination
Best Interests of the Child
Family Law
Two-stage Model
Subjects
References
In Persian
Books
-          A'rafi, Alireza et al., Jurisprudence of Education (Qom: Eshraq va Erfan Cultural-Artistic Institute, 2016). [In Persian]
-          Emami, Asadollah & Hossein Safaei, A Concise Study of Family Law (Tehran: Mizan Publishing, 2011). [In Persian]
-          Bazgir, Yadollah, Civil Code in the Mirror of the Supreme Court's Decisions (Family Law) (Tehran: Ferdowsi, 2001). [In Persian]
-          Jafari Langroudi, Mohammad Jafar, A Comprehensive Study of Legal Terminology (Tehran: Ganj Danesh Publishing, 2021). [In Persian]
-          Jahangir Mansour, Laws and Regulations Concerning the Family (Tehran: Yadavare Publishing, 2025). [In Persian]
-          Katouzian, Naser, A Course in Civil Law: Family, Vol. 2 (Tehran: Ganj Danesh, 1992). [In Persian]
-          Katouzian, Naser, Introduction to Legal Science and the Study of the Iranian Legal System (Tehran: Sherkat-e Sahami-ye Enteshar, 2003). [In Persian]
-          Misbah Yazdi, Muhammad Taqi, Islamic Legal Theory, 3rd ed. (Qom: Imam Khomeini Educational and Research Institute, 2010). [In Persian]
Articles
-          Aghazadeh, Masoumeh & Asghar Arabian, “The Foundations of Custody Being a Right or Duty and Its Rulings and Effects in Jurisprudence and Law”, Legal Studies, Vol. 1, No. 6 (2016). [In Persian]
-          Bigdeli, Saeed, “Legal Problems and Gaps in the Institution of Custody in the Iranian Legal System”, Journal of Jurisprudence and Family Law, Vol. 16, No. 5, (2011). [In Persian]
-          Khanlari Behnemiri, Hossein, “The Confrontation between the Right and Duty of Custody with the Acceptance of the Priority of the Child's Best Interest from the Perspective of Islamic Jurisprudence and Iranian Law”, Journal of Comparative Islamic Denominations Studies, Vol. 18, No. 58, (2022). [In Persian]
 
In Arabic
Books
-          Al-Hilli, Hasan ibn Yusuf Ibn Al-Mutahhar al-Asadi, Tahrir al-Ahkam al-Shar'iyyah 'ala Madhhab al-Imamiyyah (Qom: Imam al-Sadiq Institute, 1999). [In Arabic]
-          Al-Hilli, Najm al-Din Ja'far ibn Hasan, Shara'i al-Islam fi Masa'il al-Halal wa al-Haram, 2nd ed. (Qom: Isma'iliyan Institute, 1987). [In Arabic]
-          Al-Hurr al-Amili, Muhammad ibn Hasan, Wasa'il al-Shi'ah, 1st ed. (Qom: Mu'assasat Al al-Bayt, 1989). [In Arabic]
-          Al-Karaki, Ali ibn Husayn, Jami' al-Maqasid fi Sharh al-Qawa'id, 2nd ed. (Qom: Mu'assasat Al al-Bayt, 1993). [In Arabic]
-          Al-Khu'i, Sayyid Abu al-Qasim al-Musawi, Minhaj al-Salihin (Qom: Madinat al-Ilm Publishing, 1989). [In Arabic]
-          Al-Khu'i, Sayyid Abu al-Qasim, Mu'jam Rijal al-Hadith wa Tafsil Tabaqat al-Ruwat, 5th ed. (n.p.: n.p., 1992). [In Arabic]
-          Al-Kulayni, Muhammad Ibn Ya'qub, al-Kafi, 4th ed. (Tehran: Dar al-Kutub al-Islamiyyah, 1986). [In Arabic]
-          Allamah Al-Hilli, Hasan ibn Yusuf ibn al-Mutahhar al-Asadi, Tadhkirat al-Fuqaha', 1st ed. (Qom: Mu'assasat Al al-Bayt, 1993). [In Arabic]
-          Al-Tusi, Muhammad Ibn Hasan, al-Khilaf (Qom: Daftar-e Entesharat-e Eslami, Affiliated with the Society of Seminary Teachers of Qom, 1986). [In Arabic]
-          Al-Tusi, Muhammad ibn Hasan, al-Mabsut fi Fiqh al-Imamiyyah, 3rd ed. (Tehran: al-Maktabah al-Murtadawiyyah li-Ihya' al-Athar al-Ja'fariyyah, 1967). [In Arabic]
-          Al-Tusi, Muhammad ibn Hasan, Tahdhib al-Ahkam, 4th ed. (Tehran: Dar al-Kutub al-Islamiyyah, 1986). [In Arabic]
-          Ansari Shirazi, Qodratollah, and Researchers of the A'immah Athar Fiqhi Center, Encyclopedia of the Rulings on Children and Their Evidences (Qom: A'immah Athar Fiqhi Center, 2008). [In Arabic]
-          Fakhr al-Muhaqqiqin Al-Hilli, Muhammad ibn Hasan Ibn Yusuf, Idah al-Fawa'id fi Sharh Mushkilat al-Qawa'id (Qom: Isma'iliyan Institute, 1967). [In Arabic]
-          Farahidi, Khalil ibn Ahmad, al-Ayn, 2nd ed. (Qom: Hijrat Publishing, 1989). [In Arabic]
-          Ha'iri, Sayyid Kazem, Fiqh al-Uqud (Qom: Majma'-e Andishe-ye Eslami, 2002). [In Arabic]
-          Ibn Babawayh, Muhammad ibn Ali, Man La Yahduruhu al-Faqih, 2nd ed. (Qom: Daftar-e Entesharat-e Eslami, affiliated with the Society of Seminary Teachers of Qom, 1992). [In Arabic]
-          Ibn Idris al-Hilli, Muhammad ibn Mansur Ibn Ahmad, al-Sara'ir al-Hawi li-Tahrir al-Fatawa, 2nd ed. (Qom: Daftar-e Entesharat-e Eslami, affiliated with the Society of Seminary Teachers of Qom, 1989). [In Arabic]
-          Ibn Manzur, Muhammad ibn Mukarram, Lisan al-Arab, 3rd ed. (Beirut: Dar al-Fikr lil-Tiba'ah wa al-Nashr wa al-Tawzi'–Dar Sadir, 1993). [In Arabic]
-          Jawhari, Isma'il ibn Hammad, al-Sihah: Taj al-Lughah wa Sihah al-Arabiyyah (Beirut: Dar al-Ilm lil-Malayin, 1989). [In Arabic]
-          Mostafavi, Hasan, Al-Tahqiq fi Kalimat al-Qur'an al-Karim (Tehran: Markaz al-Kitab lil-Tarjamah wa al-Nashr, 1981). [In Arabic]
-          Na'ini, Mirza Muhammad Husayn, Muniyat al-Talib fi Hashiyat al-Makasib, 1st ed. (Tehran: al-Maktabah al-Muhammadiyyah, 1953). [In Arabic]
-          Najafi, Muhammad Hasan (Sahib al-Jawahir), Jawahir al-Kalam fi Sharh Shara'i al-Islam, 7th ed. (Beirut: Dar Ihya' al-Turath al-Arabi, 1983). [In Arabic]
-          Najashi, Ahmad ibn Ali, Rijal al-Najashi, 6th ed. (Qom: Mu'assasat Al-Nashr al-Islami, Jama'at al-Mudarrisin, 1986). [In Arabic]
-          Sadr, Sayyid Muhammad Baqir, Durus fi Ilm al-Usul, 5th ed. (Qom: Mu'assasat al-Nashr al-Islami, 1997). [In Arabic]
-          Sahib Ibn Abbad, Isma'il ibn Abbad, al-Muhit fi al-Lughah (Beirut: Alam al-Kutub, 1993). [In Arabic]
-          Tabataba'i Yazdi, Sayyid Muhammad Kazim, Takmilat al-Urwat al-Wuthqa (Qom: Ketabforushi Davari, 1993). [In Arabic]
Private Law Research
Volume 15, Issue 56
Autumn 2026
Pages 1-42

Main Page

Editorial Boards

Guide for Authors

Contact Us