أحكام الحضانة في قانون الأحوال الشخصية العراقي : دراسة مقارنة

Abstract

This study attempts to analyse the child custody law, which is part of the Iraqi civil status law. The core problem of the study centres on whether article 57, which deals with the issue of child custody encompasses all the issues of child custody that are present in the Iraqi society and the way the Iraqi judiciary deals with the loopholes present in the article. The study attempts to identify the loopholes and missing pieces of legislation with the aim of suggesting legal articles that can be included in a draft legislation to be the replacement for article 57, in order to quell all suspicions surrounding the integrity of the judiciary and informing the opposing parties in custody cases of their legal rights in advance. The study employs the analytical methodology to present and analyse the injunctions mentioned in article 57, the opinions of the legal commentators and researchers, the opinions of Muslim jurists from the four schools of jurisprudence, the resolutions of the fiqh academies, the religious decrees issued by ifta establishments and the judgments issued by courts. The study also relies on the comparative methodology by comparing the injunctions that are stated in the Iraqi law with the injunctions of the four schools of jurisprudence, the fiqh academies and ifta establishments with the aim of identifying similarities, differences and discussing the possibility of benefit. Finally, the study uses the critical methodology to highlight the effects of the legislative gaps and defects in the law and suggest alternative articles that can achieve justice for all the concerned parties. The study benefitted from the opinions of academicians and legal professionals. Moreover, the study also benefitted from the civil status laws of UAE, Qatar and Jordan, as these laws are both modern and contemporary. The study achieved a number of results, the most important of which is that the Iraqi civil status law contains legislative loopholes. It completely failed to include some of the injunctions related to custody, such as the issue of donating the right of custody. Moreover, some of the injunctions are not clear, such as the issues of the legal basis of custody and the end of its duration. Furthermore, there are contradictions between some of the injunctions, such as the right of the child in choosing with which parent to reside. As for the Iraqi judiciary, it was able to confront all the issues related to custody despite the existing legislative gaps and was able to issue appropriate decisions more frequently than not. Finally, the study proposes a comprehensive draft legislation for the issue of custody consisting of 19 articles.