Upaya Hukum Mendapatkan Hak Hadhanah atas Anak di Bawah Umur antara Ibu Biologis dan Ibu Asuh (Studi Putusan No. 1321/K/Ag/2023

Abstract

ABSTRACT This study examines legal efforts to obtain custody rights (hadhanah) for minors in disputes between biological mothers and foster mothers, which originated when a biological mother handed her child over to a married couple due to economic constraints, shame, and social pressure; however, as the biological mother’s circumstances improved, she attempted to regain custody of her child, leading to a prolonged legal dispute that was ultimately adjudicated by the Supreme Court. The research adopts a normative juridical method with a descriptive-analytical approach through a literature review of laws and regulations, legal doctrines, relevant court decisions, and interviews with judges as key informants, resulting in an in-depth analysis of the application of Indonesia’s positive law, the Compilation of Islamic Law, and Supreme Court jurisprudence in resolving child custody disputes. The findings reveal that custody of children who have not reached mumayyiz age principally belongs to the biological mother unless there is clear evidence of incapacity or gross negligence, and even though the foster mother has cared for, financed, and shown affection since birth, such facts do not sever the legal relationship between the child and the biological mother, especially in the absence of a legally recognized adoption process. The Supreme Court’s decision in Case No. 1321/K/AG/2023 underscores the application of the best interests of the child principle, emphasizing that a child’s welfare encompasses not only material aspects but also lineage ties and the right to be cared for by biological parents.