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Haikal Nortamami
Universitas Sunan Giri Surabaya
Religion Law, Crime, Criminology & Criminal Justice

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The Judge’s Ratio Decidendi in Determining Child Custody after Divorce: An Analysis of Maqāṣid al-Sharī‘ah in Decision No. 838/Pdt.G/2025/PA.Kab.Kdr Haikal Nortamami; Ahmad Fauzi
Jurnal El-Thawalib Vol 7, No 5 (2026)
Publisher : UIN Syekh Ali Hasan Ahmad Addary Padangsidimpuan

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.24952/el-thawalib.v7i5.21229

Abstract

The study is motivated by the importance of protecting children's rights, as children are the most vulnerable parties affected by their parents' divorce. This research aims to analyze the judge's ratio decidendi in determining child custody and to examine the court decision from the perspective of Jamaluddin Athiyyah's maqāṣid al-sharī'ah. This research employs normative juridical legal research using three approaches: the statutory approach, the case approach, and the conceptual approach. The legal materials consist of primary legal sources (the decision, Law No. 1 of 1974, Law No. 35 of 2014, and the Compilation of Islamic Law) and secondary legal sources (books and scholarly journals), collected through library research and document analysis of the court decision, which were then analyzed descriptively-analytically to draw conclusions in accordance with the objectives of the study. The findings reveal that the judge's ratio decidendi consists of the grounds for divorce, the grounds for child maintenance, and the grounds for custody, which rest on the child's age; however, the custody ground is not explicitly elaborated through the principle of the best interests of the child. From the perspective of Jamaluddin Athiyyah's maqāṣid al-sharī'ah, the decision is implicitly in line with the protection of life (ḥifẓ al-nafs), intellect (ḥifẓ al-'aql), lineage (ḥifẓ al-nasl), family (ḥifẓ al-usrah), and children's rights (ḥifẓ ḥuqūq al-aṭfāl), but the protection of children's education (ḥifẓ al-tarbiyah) is not yet explicit. Based on this single case, this study recommends that judges elaborate the custody ground separately and integrate maqāṣid al-sharī'ah values explicitly.
The Judge’s Ratio Decidendi in Determining Child Custody after Divorce: An Analysis of Maqāṣid al-Sharī‘ah in Decision No. 838/Pdt.G/2025/PA.Kab.Kdr Haikal Nortamami; Ahmad Fauzi
Jurnal El-Thawalib Vol 7, No 5 (2026)
Publisher : UIN Syekh Ali Hasan Ahmad Addary Padangsidimpuan

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.24952/el-thawalib.v7i5.21229

Abstract

The study is motivated by the importance of protecting children's rights, as children are the most vulnerable parties affected by their parents' divorce. This research aims to analyze the judge's ratio decidendi in determining child custody and to examine the court decision from the perspective of Jamaluddin Athiyyah's maqāṣid al-sharī'ah. This research employs normative juridical legal research using three approaches: the statutory approach, the case approach, and the conceptual approach. The legal materials consist of primary legal sources (the decision, Law No. 1 of 1974, Law No. 35 of 2014, and the Compilation of Islamic Law) and secondary legal sources (books and scholarly journals), collected through library research and document analysis of the court decision, which were then analyzed descriptively-analytically to draw conclusions in accordance with the objectives of the study. The findings reveal that the judge's ratio decidendi consists of the grounds for divorce, the grounds for child maintenance, and the grounds for custody, which rest on the child's age; however, the custody ground is not explicitly elaborated through the principle of the best interests of the child. From the perspective of Jamaluddin Athiyyah's maqāṣid al-sharī'ah, the decision is implicitly in line with the protection of life (ḥifẓ al-nafs), intellect (ḥifẓ al-'aql), lineage (ḥifẓ al-nasl), family (ḥifẓ al-usrah), and children's rights (ḥifẓ ḥuqūq al-aṭfāl), but the protection of children's education (ḥifẓ al-tarbiyah) is not yet explicit. Based on this single case, this study recommends that judges elaborate the custody ground separately and integrate maqāṣid al-sharī'ah values explicitly.
Co-Authors Ahmad Fauzi