Analisis Yuridis Hak Hadhanah Berada di Tangan Ayah Berdasarkan Kedekatan Emosional (Studi Putusan Pengadilan Agama Binjai Nomor 08/Pdt.G/2017.PA.Bji)

Abstract

Article I of Law No. I/1974 on Marriage states that a marriage is a complete bond between a man and a woman as a married couple in establishing a happy and everlasting family, based on God the Almighty. If a divorce occurs, the parents are required to take care of and bring up their children, merely based on the children’s interest. When there is a dispute in hanhanah’ (child custody), it has to the brought to the Court Principally, the mother has the right to take care of the children because she is emotionally closer to her children so the Islamic law, specified in Article 105 of KHI (Compilation of the Islamic Laws). Provides ‘hadhanah’ for the mother. The research problems are as follows ; how about legal protection for a child as the result of a divorce, based on the Indonesian civil law, how about the regulation on ‘hadhanah’ right as the result of a divorce in the Islamic law, and how about judge’s legal consideration in giving ‘hadhanah’ right to the father, based on emotional right concerning the Binjai Religious Court Verdict No. 08/Pdt.G/2017/PA.Bji. The research used juridical normative method with descriptive analytic and case-study and statute approaches. It also used the theory of legal protection. The data were obtained, from primary, secondary, and tertiary legal materials and analyzed by using qualitative method. The result of the research shows that, first, legal protection, for children whose parents are divorced is regulated in Law No. I/1974 on Marriage, Law No. 23/2002 in conjunction with Law No. 35/2014 on Child Protection, and the Civil Code and Law No. 39/1999 on Human Rights. Secondly, Article 105 of KHI explains the regulation on ‘hadhanah’ which given to the mother because basically she has right to take care of her children. However, is she does bad things forward them such as neglecting them, the ‘hadhanah’ is given to the father.e When it is related to the Binjai Religious Court Verdict No. 08/Pdt.G/2017/PA.Bji, the custody is given to the father based on the Panel of Judges’ consideration about the growth and the development of the children and the children feel comfortable living with their father. Thirdly, the decision is based on the following consideration : 1) the emotional closeness to their father, 2) considering the benefit, and 3) consideration of psychology and the caregiver’s economic condition.