Variations in Judicial Ratio Decidendi in Awarding Hadhanah of Non-Mumayyiz Children to the Father

Abstract

Custody (hadhanah) of a child who has not yet reached the mumayyiz stage is generally awarded to the mother. Judicial practice, however, demonstrates that courts may award hadhanah to the father based on the particular circumstances of the case and the interests of the child. This divergence raises questions concerning variations in judicial ratio decidendi in awarding hadhanah of non-mumayyiz children to fathers and the compatibility of such decisions with Islamic law and the principle of the best interests of the child. This study aims to analyze and compare the judicial reasoning in Decision No. 3688/Pdt.G/2023/PA.Kab.Kdr., Decision No. 2346/Pdt.G/2023/PA.JS, and Decision No. 11/PDT/2020/PT SMR, and to examine their conformity with Islamic legal provisions governing hadhanah and the principle of the best interests of the child. The theoretical framework encompasses the theory of hadhanah, the theory of legal protection for children, and the principle of the best interests of the child as analytical foundations for assessing judicial considerations in determining the holder of child custody. This study employs normative legal research using statutory, case, and conceptual approaches. Legal materials were collected through a literature review encompassing primary, secondary, and tertiary legal materials and were analyzed qualitatively. The findings demonstrate that, although all three decisions awarded hadhanah of non-mumayyiz children to their fathers, the courts relied on different legal considerations. Decision No. 3688/Pdt.G/2023/PA.Kab.Kdr. was based on an agreement reached by the parties through mediation, whereas Decision No. 2346/Pdt.G/2023/PA.JS and Decision No. 11/PDT/2020/PT SMR were based on facts established during the proceedings indicating that the fathers were considered better able to ensure the fulfilment of the children’s needs, protection, and interests. These differences demonstrate variations in the application of the law arising from the particular legal and factual circumstances of each case. Nevertheless, all three decisions are fundamentally oriented toward the welfare and best interests of the children and may be justified insofar as the determination of hadhanah is based on the concrete circumstances of each case and remains consistent with the principles of child protection.