PROBLEMATIKA HAK ASUH ANAK DALAM PUTUSAN PENGADILAN AGAMA

Abstract

According to Article 105 letter a of the KHI, custody of a child who has not been mumayyiz or has not reached the age of 12 is the right of the mother. However, when viewed from the point of view of Islamic law, the virtue of the mother can be lost if the mother cannot be trusted (fasiq). The respondent who is proven to be having an affair with another man other than her husband shows that he has committed a disobedience so that he is out of obedience to Allah. That means he can't be trusted with parenting responsibilities. However, in the decision of the Pacitan Religious Court in the divorce case No. 802/Pdt.G/2019/PA.Pct, the Panel of Judges determined the mother as the holder of child custody. Based on these problems, researchers are encouraged to examine more deeply the judges' considerations and the legal impact of the Pacitan Religious Court's decision on Case Number 802/Pdt.G/2019/PA.Pct regarding child custody. Because judges are the main actors in law enforcement, their decisions are considered very important for the creation of certainty, justice and legal benefit. From the research conducted by the researcher, it can be concluded that the judge's considerations in determining custody of children who have not been mumayyiz to the mother in the decision number 802/Pdt.G/2019/PA.Pct are in accordance with Article 50 of Law No. 48 of 2009. When viewed from the aspect of legal certainty, there is a contradiction between the judge's decision number 802/Pdt.G/2019/PA.Pct and Article 49 paragraph 1 letter b of Law Number 1 of 1974. As for the legal impact on custody the child in the decision is correct and relevant to the aspect of justice and the aspect of expediency.