Document Type : scientific

Author

• Hojjatollah دهقانی

Pajouheshgah Fiqh-e Nizam

Abstract

The jurisprudential-legal study of Article 1168 of the Iranian Civil Code, which considers child custody to be both a “right” and a “duty” of parents, demonstrates the unique capacity of the Iranian legal system in explaining complex social institutions. This research aims to analyze the jurisprudential foundations of this article and how the right-based and duty-based aspects of the institution of custody are simultaneously realized, and it has been analyzed using a descriptive-analytical method and citing reliable sources of Imami jurisprudence. The findings show that three main views have been formed on the nature of custody: the theory of legitimacy, the theory of arbitration, and the classical hybrid theory. An examination of these views shows that the modern hybrid theory has a greater ability to explain the complexities of custody. According to this approach, the nature of custody is variable and conditional; In cases of disagreement between parents, custody is manifested as a "right" for the parents and each of them enjoys it under certain conditions, but in the absence of disagreement, custody is imposed on the parents as a binding "duty". This two-faced analysis is consistent with jurisprudential evidence and takes into account the best interests of the child and the realities of family law, and can be the basis for flexible legal policymaking and the design of dynamic support institutions in the family sphere.

Keywords

• Custody
• Article 1168 of the Civil Code
• rights and obligations
• Imami jurisprudence
• family rights
• civil law

Main Subjects

• Jurisprudence & Law