The Theoretical and Conceptual Framework of Kinship Custody – A Comparative Study

Abstract

In this research, we addressed the theoretical and conceptual framework of kinship custody, as custody is not limited only to parents but extends to relatives in certain cases, namely the death of the parents or their loss of the ability to care for a young child who cannot take care of himself, attend to his needs, or manage his affairs. Kinship custody is considered one of the fundamental and contemporary issues of our time. It has received considerable attention from the jurisprudential perspective (fiqh), which has sought to regulate it in a manner that takes into account the best interests of the child in custody. As for positive law, we note the absence of a clear legal text for this type of custody. That is, the Iraqi legislator regulated custody under the Personal Status Law No. 188 of 1959, as amended, in Article 57 consisting of nine paragraphs, restricting it only to parents while mentioning relatives only briefly in a single paragraph. Kinship custody is a very important contemporary issue to guarantee the child's rights, psychological and physical health, safety, and to ensure that the child lives a dignified and secure life. Consequently, we note that kinship custody is an exception to parental custody. Although it shares similarities with parental custody, it differs from it in terms of the persons involved and the types of custody.