A Common Criterion for Both Systems: the Best Interests of the Child (A Study of Child Custody in the Islamic Jurisprudence and Right of the Child Convention)

Children are recognized as one of the weakest groups of the society in fulfilling their necessities including physical, emotional, and financial needs. At the same time, it is presumed that parents are the most capable individuals to protect the child, and therefore, they are considered legally responsible for that protection. However, it will be problematic to determine the responsible person or to choose an appropriate form of protection in case of divorce or death of one parent. The question then would be what is the criterion for such a decision? Traditional Islamic jurisprudence has recognized an objective test. Such an objective test, which most notably focuses on the child’s age and gender, does not necessarily guarantee the interests of the child, while the ultimate goal of the custody provisions in the jurisprudence is preserving the child’s best interests. The United Nation Convention on the Rights of the Child, on the other hand, puts the child’s interests at the first priority regarding all decisions made by the authorities related to any aspect of her/his life. In this article, the author discusses the fact that although the principle of deciding based on the best interests of the child has not been expressed by the Islamic jurists, it can be inferred from some of their reasoning. In fact, the subjective test that international documents have presented for deciding custody is convergent with the ultimate goal of the Islamic texts and principles.