Pelindungan anak melalui hadhanah dalam hukum islam dan hukum positif Indonesia

Abstract

Hadhanah refers to the care and custody of children who are not yet mumayyiz, including the fulfillment of their physical, emotional, educational, and protective needs following the divorce of their parents. This study aims to examine the concept of hadhanah, its legal foundations in both Islamic law and Indonesian positive law, as well as the procedures for its implementation and the factors considered in determining child custody rights. The research employs a normative legal method with a descriptive approach through library research based on the Qur’an, hadith, the Compilation of Islamic Law (KHI), the Marriage Law, and the Child Protection Law. The findings indicate that custody rights are generally granted to the mother for children who are not yet mumayyiz, while still prioritizing the best interests of the child. Several factors influence custody decisions, including the child’s age, the caregiver’s capability, environmental stability, and the father’s responsibility in providing financial support. In practice, hadhanah may be carried out through mutual agreement between both parents or through a court decision. Furthermore, challenges often arise in the implementation of custody rights, particularly during the execution of court rulings and in situations where the mother remarries. Therefore, the protection and welfare of the child must remain the primary consideration in every determination of hadhanah.