CHILD CUSTODY: A RIGHT OR A DUTY (A STUDY OF AN APPROACH TO AMEND ARTICLE 57 OF THE IRAQI PERSONAL STATUS LAW)
The current century has witnessed a revolution in different fields which required some legal rules to be reformulated to adapt with the volume of challenges imposed by the contemporary life on marriage life in general, on the children, which are the most important thing that may result from marriage, and on the importance of caring for their needs. As God has divided the parents’ duties in caring for their children throughout the stages of their liv.es. He laid upon the mother the responsibility of caring for children starting from pregnancy, delivery, breastfeeding until infancy. While He, especially, assigned the father the responsibility of what comes after. But sometimes a child may lose one or both parents; and here the question arises about who shall take custody and what is the period required to satisfy that right. Article (57) of Personal Status Law No. (188) for the year 1959 has answered this question with its nine clauses and confirmed the necessity of caring for the child’s best interest and prioritizing it over the parents’ rights. However, the Iraqi Parliament has adopted an amendment of this Article in its latest proposals under the pretext of being in line with changes of everyday life with the assurance of applying the spirit of Islamic Law. It discussed the transmission of the child’s custody from the mother to the father after the age of seven in opposition to the current law that grants the mother this right until the child turns fifteen years of age; it also stipulated that the mother shall not get married in order to attain custody over the child which is regarded as a Statutory Offence represented in forcing the mother not to get married during which she holds custody over the child. Meanwhile, it did not stipulate over the father abstinence from marriage in order to attain custody over his children. The amendments have also showcased the entitlement of the grandfather’s right in custody rather than the mother in case the father died or didn’t fulfill the conditions of custody. By doing so, the rule would deprive the mother from her child upon turning seven years of age without attention being paid to the subsequential feeling of instability such decision causes to the child. The parliament should have tried to balance between the child’s right of maternal tenderness or paternal security. This is the aim of our research which will shed light on this subject in two scopes, the first of which focuses on educating the people of the right of custody and its period, and the second of which is dedicated to discussion of amendments and making proper recommendation.
Keywords: Custody, Custody Period, Mother’s Right, Father’s Duty, Article 75, Personal Status Law.