نوع مقاله : مقاله پژوهشی
نویسنده
استادیار گروه فقه و حقوق اسلامی، دانشکده هنر و علوم انسانی، دانشگاه شهرکرد، شهرکرد، ایران.
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسنده [English]
Objective: Deprivation of custody due to committing behaviors against the child's best interests is one of the most important legal guarantees in protecting children. Despite the clarification of Article 1173 of the Civil Code on the instances of deprivation of custody, the legislator has not taken a clear position on the possibility of assessing the child's condition before issuing a custody deprivation order. This ambiguity has led to the formation of different views in Islamic jurisprudence, Iranian law, and judicial practice. The present study was conducted with the aim of examining the legal jurisprudential foundations of determining the child's condition in deprivation of custody and providing a solution to reduce the conflict of judicial decisions.
Method: The present study was conducted using a descriptive-analytical method and an argumentative jurisprudence approach. The research data was collected through the study of jurisprudential books, legal sources, scientific articles, and judicial opinions and examined using a documentary analysis method.
Results: A review of the views of jurists showed that there are two approaches to assessing the child's condition before taking custody. One group has considered it necessary to assess the child's condition, citing the child's best interests and preventing harm. On the other hand, another group has considered the fulfillment of legal precedents sufficient for taking custody, citing the lack of competence of the guardian, the need to prevent possible harm, and the application of evidence. A review of judicial practice also indicates that the ambiguity in Article 1173 of the Civil Code has led to different opinions.
Conclusions: The research findings show that the view that assessing the child's condition is not permissible is more consistent with the jurisprudential principles and protective objectives of the law and prevents the issuance of conflicting opinions. Accordingly, the instances stipulated in Article 1173 of the Civil Code should be considered as a "legal presumption" so that, upon the fulfillment of each of them, the court can make the appropriate decision without the need to re-evaluate the child's condition. It is also suggested that this issue be explicitly stated in the law.
کلیدواژهها [English]
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