The Definition of Custody and Guardianship
The Arabic root of custody (hadāna) means “to hold in one’s arms, to embrace and to place on the lap and to take physical care of the child who is still unable to do so by itself.” Custody is the care and rearing of the children which is associated with divorce and, accordingly, covers many issues that ensuring the fulfillment of children’s needs in all areas at a certain age, by a person who has the right of custody. In traditional Islamic law, the woman is traditionally charged with child rearing and the physical care of the child during early to mid-childhood.
Distinct from this is guardianship (wilāya) that refers to notions of authority and decision-making related to the child, assigned …show more content…
The underlying purpose here is to show that Islam does not contradict international women’s rights, especially article 16/1/D of CEDAW. Indeed, women's rights to custody and guardianship and Islam are actually reconcilable and compatible, if Islam is interpreted in a manner that is true to the principles of the religion’s key texts. Both of them call for the same tenets of equality between the parents regarding the same rights and responsibilities in matters relating to their …show more content…
Instead of guardianship, she has the right to custody of her children until certain age. The Jordanian laws do not use “the expression natural guardian, but it seems to be clear that the father is recognized as a guardian—which term in the context is equivalent to natural guardian, and the mother is not recognized as the guardian, natural or otherwise, even after the death of the father.” In the event of divorce, the mother can be granted physical custody of the children, but the authority for major decisions that relate to the child or children still remains with the father because the father is the legal guardian. Unfortunately, Jordanian personal laws also apply restrictions on women’s rights to custody of their children. These laws give women the right of custody until they become mature, after which full custody then passes to the father. Maturity means physical maturity, In Jordan law, fifteen is “the age had varied depending on the appearance of signs of puberty”, rather than mental and psychological maturity. This is inconsistent with Article 16 of CEDAW, which provides that the interests of the children should be the paramount consideration in determining custody. Thus, Guardianship and custody laws discriminate against women, on the basis of gender, and violate the mother’s right to care for her
The Arabic root of custody (hadāna) means “to hold in one’s arms, to embrace and to place on the lap and to take physical care of the child who is still unable to do so by itself.” Custody is the care and rearing of the children which is associated with divorce and, accordingly, covers many issues that ensuring the fulfillment of children’s needs in all areas at a certain age, by a person who has the right of custody. In traditional Islamic law, the woman is traditionally charged with child rearing and the physical care of the child during early to mid-childhood.
Distinct from this is guardianship (wilāya) that refers to notions of authority and decision-making related to the child, assigned …show more content…
The underlying purpose here is to show that Islam does not contradict international women’s rights, especially article 16/1/D of CEDAW. Indeed, women's rights to custody and guardianship and Islam are actually reconcilable and compatible, if Islam is interpreted in a manner that is true to the principles of the religion’s key texts. Both of them call for the same tenets of equality between the parents regarding the same rights and responsibilities in matters relating to their …show more content…
Instead of guardianship, she has the right to custody of her children until certain age. The Jordanian laws do not use “the expression natural guardian, but it seems to be clear that the father is recognized as a guardian—which term in the context is equivalent to natural guardian, and the mother is not recognized as the guardian, natural or otherwise, even after the death of the father.” In the event of divorce, the mother can be granted physical custody of the children, but the authority for major decisions that relate to the child or children still remains with the father because the father is the legal guardian. Unfortunately, Jordanian personal laws also apply restrictions on women’s rights to custody of their children. These laws give women the right of custody until they become mature, after which full custody then passes to the father. Maturity means physical maturity, In Jordan law, fifteen is “the age had varied depending on the appearance of signs of puberty”, rather than mental and psychological maturity. This is inconsistent with Article 16 of CEDAW, which provides that the interests of the children should be the paramount consideration in determining custody. Thus, Guardianship and custody laws discriminate against women, on the basis of gender, and violate the mother’s right to care for her