نوع مقاله : مقاله پژوهشی
دانشیار گروه حقوق خصوصی و اسلامی دانشکدۀ حقوق و علوم سیاسی دانشگاه تهران
عنوان مقاله [English]
According to Article 1169 of the Civil Code, mother has priority for the custody of her children, including girl and boy, from the date of their birth until the age of seven, and from the age of seven onwards the custody is with the father. But with respect to the termination of custody the Civil Code is silent and it is not clear whether the custody of children is ended by puberty or by prudence. The silence of the Civil Code has resulted in the difference of opinion among legal writers and the courts in respect of the time for the termination of custody. Some of them believe that custody is ended by puberty while some others maintain that by reaching the age of prudence or where prudence is proved in the court, custody is terminated, while this issue is one of most important issues of family law and the interest of the child requires this issue to be settled. This paper by examining this issue from the viewpoint of legal writers and judicial decisions and their reasons concludes that custody is terminated by prudence. Termination of custody at the age of prudence, in addition to the interest of the child, is compatible with Islamic law and the philosophy of custody and is also in harmony with the Islamic Penal Code and the Convention on the Rights of the Child in which prudence has been recognized as the end of childhood.