Reconstruction of the Concept of Child Custody (Ḥaḍānah) Perspective of Maqāṣid Al-Syarī'Ah: Harmonization Between Fiqh Norms and Human Rights Principles in the Indonesian Family Law System

Abstract

This study departs from the gap between the static, status-based ḥaḍānah norms in the Compilation of Islamic Law (KHI) and child rights principles that treat the best interests of the child as the primary standard. This gap has produced inconsistent court decisions. The study aims to analyze how ḥaḍānah norms are constructed in Islamic jurisprudence and Indonesian positive law, to map their convergences with and tensions against child rights principles in court decisions, and to formulate a maqāṣid al-sharī'ah-based reconstruction. As normative legal research, it combines statutory, conceptual, case, comparative, and Jasser Auda's systems-based maqāṣid approaches. The materials examined include classical fiqh works, national regulations, child rights instruments, the laws of seven Muslim countries, and ten court decisions. The findings show that fiqh and child rights converge at the level of objectives and diverge only at the level of means. Courts have also treated Article 105 of the KHI as a rebuttable presumption, though without an explicit balancing framework. Inconsistencies in interfaith custody cases prove to be explained by the presence or absence of a real threat to the child's religion. The study proposes the Maṣlaḥī Ḥaḍānah Model, which consists of five components and is operationalized through a best interests matrix and the muwāzanah maqāṣidiyyah method.