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Chapter 34 - Custody Disputes and the Best Interests of the Child, from al-Murshid fī l-Qaḍāʾ al-Sharʿī (2008) by Qāḍī Iyad Zahalka

from Part V - Judicial Manuals and Reference Books

Published online by Cambridge University Press:  14 November 2024

By
Nijmi Edres
Edited by
Omar Anchassi  and
Robert Gleave
Omar Anchassi
Affiliation:
Universität Bern, Switzerland
Robert Gleave
Affiliation:
University of Exeter
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Summary

This chapter discusses the section on child custody (ḥaḍāna) in al-Murshid fī l-Qaḍāʾ al-Sharʿī (‘Handbook for Islamic Adjudication’) written by the Muslim judge Iyad Zahalka (b. 1969), published by the Israel Bar Publishing House in 2008. The publication constitutes an important milestone for Islamic legal practice in the Israeli context, both for the prominence of its author and the content of the book itself. The manual deals with almost all matters of personal status and family law for Palestinian Muslims with Israeli citizenship. The section discussed here deals with the distinction between guardianship (wilāya) and custody (ḥaḍāna) in Islamic law and explores custody disputes. Zahalka posits legal protection of children as something due to God (ḥaqq Allāh), thereby justifying the notion that the interests of the child must always override the interests of the mother and father in custody cases, a prioritisation that ought to be reflected in custody decisions.

Keywords

Child custody (ḥaḍāna)Legal guardianship (wilāya)Best interest of the childRight of Godor public right (ḥaqq Allāh)Harm (ḍarar)Ottoman Law of Family RightsIsraeli legal system.
Type
Chapter
Information
Islamic Law in Context
A Primary Source Reader
 , pp. 357 - 366
Publisher: Cambridge University Press
Print publication year: 2024

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References

Primary Sources

Zahalka, Iyad. al-Murshid fī l-Qaḍāʾ al-Sharʿī (Tel Aviv: Israel Bar Association, 2008).Google Scholar

Secondary Sources

Abou Ramadan, Moussa. ‘The Recent Developments in Child Custody Law for Muslims in Israel: Gender and Religion’, Journal of Women of the Middle East and the Islamic World 8 (2010), 274–316.Google Scholar
Edres, Nijmi. ‘The Conceptualization of the “Interest of the Child” through the Use of the Classical Concept of “Ḥaqq Allāh”’, in Uses of the Past: Sharīʿa and Gender in Legal Theory and Practice in Palestine and Israel, ed. Schneider, Irene and Edres, Nijmi (Wiesbaden: Harrassowitz, 2018), 163–82.Google Scholar
Emon, Anver. ‘Ḥuqūq Allāh and Ḥuqūq al-ʿIbād: A Legal Heuristic for a Natural Rights Regime’, Islamic Law and Society 13 (2006), 325–91.CrossRefGoogle Scholar
Ibrahim, Ahmed Fekry. Child Custody in Islamic Law: Theory and Practice in Egypt since the Sixteenth Century (Cambridge: Cambridge University Press, 2018).CrossRefGoogle Scholar
Zahalka, Iyad. Shariʿa in the Modern Era: Muslim Minorities Jurisprudence, trans. Stadler, Ohad and Sibony, Cecilia (Cambridge: Cambridge University Press, 2016).CrossRefGoogle Scholar

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