IMPLEMENTATION OF CHILD PROTECTION IN DIVORCE CASES AT
THE BINJAI RELIGIOUS COURT : AN ANALYSIS OF ISLAMIC
FAMILY LAW AND LAW NUMBER 35 OF 2014
Ahmad Zaki1.
Suci Ramadhona2 Institut Syekh Abdul Halim Hasan Binjai1,2 Ahmadzaki.
mhs@insan.
Suci47134@gmail.
Article History:
Submitted : June 10, 2025 Accepted : December 01, 2025 Published : December 10, 2025 Correspondence Author :
Ahmad Zakiic Ahmadzaki.
mhs@insan.
A 2025 The Author.
This is an open-access article under the CC BY-SA Copyright .
EL-AHLI : JURNAL HUKUM
KELUARGA ISLAM
Vol.
6 No 2 December 2025 https://doi.
org/10.
56874/elahli.
Keywords:
Child Hadhanah.
Divorce.
Kata kunci:
perlindungan anak, perceraian.
Abstract : The rising divorce rate in Indonesia has serious implications for the fulfillment of children's rights, particularly regarding the psychological aspects, which are often neglected.
This study aims to analyze the implementation of legal protection for children, with a focus on their psychological needs and the principle of the best interest of the child, in divorce cases at the Binjai Religious Court.
The research method employed is normative-juridical, utilizing a statutory approach, a conceptual approach, and an analysis of Islamic law perspectives concerning hadhanah .
hild custod.
and child support .
Data was sourced from regulations, academic literature, and court case The findings reveal that although judges have referred to child protection provisions .
uch as those in Law Number 35 of 2.
, considerations of children's psychological aspects remain declarative and have not become substantive in court rulings.
The main obstacles include judges' limited understanding of family psychological dynamics, the scarcity of counseling support services within the court environment, and low parental awareness.
It is concluded that strengthening both regulations and judicial practices is necessary to ensure comprehensive child protection in the aftermath of divorce.
Abstrak : Peningkatan angka perceraian di Indonesia pemenuhan hak anak, khususnya pada aspek psikologis yang sering terabaikan.
Penelitian ini perlindungan hukum bagi anak, dengan fokus pada kebutuhan psikologis dan prinsip the best interest of the child, dalam perkara perceraian di Pengadilan Agama Binjai.
Metode penelitian yang digunakan adalah yuridis-normatif melalui pendekatan perundang-undangan .
tatute approac.
, konseptual .
onceptual approac.
, dan analisis perspektif hukum Islam terkait hadhanah dan nafkah anak.
Data bersumber dari regulasi, literatur, dan dokumen perkara.
Hasil penelitian mengungkapkan bahwa meskipun hakim telah merujuk pada ketentuan perlindungan anak .
eperti dalam Undang-Undang Nomor 35 Tahun 2.
, pertimbangan terhadap aspek psikologis anak masih bersifat deklaratif dan belum substantif dalam putusan.
Hambatan utamanya mencakup pemahaman hakim tentang dinamika psikologi keluarga yang terbatas, minimnya dukungan layanan konseling di lingkungan pengadilan, serta rendahnya kesadaran orang tua.
Disimpulkan bahwa diperlukan penguatan baik dari sisi regulasi maupun praktik
peradilan untuk memastikan perlindungan anak yang komprehensif
INTRODUCTION
Marriage is a declaration or contract that establishes a legal relationship between a man and a woman for the purpose of forming a family unit (Suryatni.
Its objective is to build a happy and enduring family grounded in the belief in the One Almighty God, as stipulated in Law No.
1 of 1974 on Marriage.
The family, as the smallest social unit, plays a crucial role in shaping an individualAos personality and moral values.
Within this environment, children grow and develop through emotional interactions with their parents and their social surroundings (Yulianti et al.
, 2.
A harmonious family is the ideal aspiration of every married couple.
However, not all marriages achieve this condition, as the dynamics of family life often give rise to various challenges.
Harmony can only be attained when effective communication is established and deliberation becomes a habitual practice among family members, especially between husband, wife, and children.
This condition is reflected in inner tranquility, peace of mind, and emotional and spiritual well-being, which align with the fulfillment of the material and nonmaterial needs of each family member (M.
Sari, 2.
Problems that are not properly managed and resolved may escalate into prolonged conflict, ultimately leading to divorce.
Several factors may trigger disputes within the family, including ineffective communication, an inability to resolve problems, stress, psychological pressure, economic difficulties, and domestic violence (Abdul Rahman Masionu, 2.
Unresolved domestic conflicts often push couples toward divorce.
Although divorce is sometimes viewed as a solution to ongoing tension, the decision carries serious consequences for childrenAos emotional and social development.
External pressures such as work-related stress, income disparities, jealousy, and Dissatisfaction with sexual relations and differences in parenting styles can also provoke conflict which, if left unaddressed, worsens the situation.
The accumulation of such issues may create profound disharmony that leads couples to separate (Hanun & Rahmasari, 2.
Children of divorced parents face heightened risks related to their personal development and social relationships.
They may also experience emotional disturbances such as anxiety, aggressive behavior, and depression (Natalia et al.
Furthermore, a study by Miralles.
Godoy, and Hidalgo .
, reviewing various quantitative and qualitative studies over a fifteen-year span, reveals that parental alienation is among the most frequent consequences of divorce.
This condition causes children to develop feelings of hatred, rejection, or estrangement toward one or both parents.
The effects are not only social but also psychological and emotional, including distress over separation, tendencies to blame parents, and the shaping of their understanding of relationships, commitment, and family through the lens of their own experience or observations of divorce.
Such patterns often create hesitation and distrust when forming relationships in adulthood (Miralles et al.
, 2.
Similarly, the research findings of Obeid et al.
indicate that parental separation can place children at risk of various developmental issues.
Children from divorced families are more vulnerable to risky sexual behaviors, difficulties coping with failure, and academic challenges that may lead to school dropout.
Deviant behaviors such as juvenile delinquency, alcohol consumption, and drug abuse are also more likely to appear.
Clinically, children may experience mood disorders such as severe anxiety, depression, and a tendency toward dark or melancholic humor (Obeid et al.
, 2.
Beyond internal family factors, social pressures also influence childrenAos conditions post-divorce.
NurlitaAos .
study shows that children in singleparent households often face stigma from their environment, including peers and Such stigma generates negative assumptions that shape the childAos attitudes, behaviors, and interactions within society, ultimately affecting their selfconfidence and social adjustment (Nurlita, 2.
In response to these concerns.
Law No.
35 of 2014 on Child Protection affirms that the state, local government, community, and parents bear an absolute responsibility to ensure the fulfillment of childrenAos rights, including for children from divorced families.
This law, which amends Law No.
23 of 2002, aims to strengthen legal emphasis, broaden the scope of protection, and impose deterrent effects for all forms of violations of childrenAos rights.
It also serves as a fundamental basis for implementing the principle of the Best Interests of the Child, as articulated in the Convention on the Rights of the Child, and provides legal protection for childrenAos physical, mental, and social well-being.
These provisions reflect the governmentAos commitment to combating all forms of child rights violations and violence against children.
Despite the increasing divorce rate each year, public attention to the of childrenAos psychological well-being.
JDIH BPK RI .
notes that psychological dimensions are often overlooked and rarely discussed in depth.
This lack of attention stems not only from limited awareness but also from conceptual gaps and low societal openness in understanding the urgency of psychological protection for children post-divorce (Undang-Undang Republik Indonesia Nomor 35 Tahun 2014 Tentang Perubahan Atas Undang-Undang Nomor 23 Tahun 2002 Tentang Perlindungan Anak, 2.
This study examines the implementation of legal protection for children in divorce cases based on Law No.
35 of 2014 on Child Protection.
The urgency of this inquiry arises from the rising divorce rates in Indonesia, which have serious implications for childrenAos psychological condition, parenting patterns, and overall development.
Employing a Family Psychology theoretical framework, this study highlights the persistent neglect of childrenAos rights, particularly emotional needs and the continuity of caregiving after divorce.
Through a case study at the Binjai Religious Court, this research aims to analyze the application of relevant regulations and identify obstacles and strategies for realizing effective child protection, particularly in supporting their emotional and social development.
RESEARCH METHODS
This study employs a normative juridical approach grounded in two primary frameworks: the statute approach, used to examine Law No.
35 of 2014 on Child Protection along with its derivative regulations.
and the conceptual approach, which draws upon principles of Family Psychology.
The psychological lens is utilized to assess how divorce dynamics affect childrenAos emotional well-being, social relationships, and developmental needs, ensuring that the analysis of legal protection is examined alongside childrenAos psychological needs in a comprehensive manner.
The research also integrates an Islamic legal perspective through an examination of the QurAoan.
Hadith, the Compilation of Islamic Law (KHI), and relevant fatwasAiparticularly in relation to the concepts of hadhanah .
hild custod.
, child maintenance, and the principle of the best interest of the child within the framework of family fiqh.
The Binjai Religious Court was selected as the research site due to its high number of divorce cases and the significant proportion of disputes involving the fulfillment of childrenAos rights, making it a representative location for assessing the implementation of child protection within the practice of religious courts.
The data sources consist of primary legal materials .
and secondary legal materials .
cholarly journals, books, and interviews with judge.
Data analysis was conducted through the stages of data reduction, categorization of legal issues, and normative interpretation, which involves interpreting positive legal provisions.
Islamic legal principles, and theories of Family Psychology in a comparative manner.
These stages aim to evaluate the extent to which childrenAos psychological protection after divorce is ensured in judicial practice and to identify the factors that hinder its fulfillment.
DISCUSSION/RESULTS AND DISCUSSION
Islamic Legal Perspectives on Hadhanah (Child Custod.
and the Requirements for Child Care in Islam In the early stages of life, a child is unable to fulfill basic physical and spiritual needs independently and therefore requires an adult to care for, protect, and guide the development of his or her character.
It is in this context that the concept of uasAnah (A )OAaiAbecomes essential, as the party responsible for caregiving holds a decisive role in shaping the childAos emotional, moral, and mental well-being.
Islamic law thus places significant emphasis on matters of uasAnah, given that the stages of a childAos growth are crucial in determining the quality of life he or she attains in adulthood.
Terminologically, uasAnah is understood as the right of a young child to receive proper guardianship, care, supervision, and education.
At this developmental phase, a child requires emotional closeness and consistent For this reason, classical Islamic scholars position the mother as the individual most entitled to exercise hadhanah, considering the maternal instinct and psychological attachment that are generally stronger.
The majority of fuqahAAoAiincluding ImAm al-ShAfiAo.
ImAm MAlik.
ImAm Ab anfah, and ImAm AumadAiagree that the right of hadhanah rests with the mother so long as she meets the necessary criteria and the child remains in an age requiring intensive The strength of the motherAos custodial right is further affirmed in a hadith of the Prophet AA:
a An e a aU ee aA% a A ( a ae aa aA:A aa aEAUA e a aO seaA,AA a .
Aa ca aU ee a e a2A ( a aeA:A aa aEAUa c a a a e A U ea a a a e a a ei s AUAA a AA A ) a aO aA.
Aa a aiACa Aa a aOc a e ai a oa a a e aI e aoAEe a A cA a a ea aCA5a a A a aO aOA5A a e ea aC c a e ai e a a aA:A a a eU ao a a ao aEA:A aa aEAUAA a % A U ea aO AUANA% a Ae a aeA (A a aOA e ca "Whoever separates a mother from her child.
Allah will separate him from those he loves on the Day of Resurrection.
(Narrated by al-Tirmid.
This hadith serves as a stern warning against removing a child from the care of his or her mother in the early years of life, as such an act is deemed to violate the natural bond and intrinsic relationship between mother and child.
The regulation of custody in Indonesian positive law also aligns with the views of Islamic scholars.
Article 105 of the Compilation of Islamic Law stipulates that in cases of divorce, a child under the age of twelve shall be placed under the custody of the mother, while the father remains responsible for the financial maintenance of the child.
This provision reinforces the understanding that a childAos emotional and psychological needs are more adequately met through the motherAos proximity, especially in early childhood.
Thus, both classical fiqh and national legal regulations affirm that, in principle, the right of hadhanah lies with the mother, unless there are factors that invalidate her eligibility (Aulia.
Contemporary scholars, including Wahbah al-Zuuail in his authoritative work al-Fiqh al-IslAm wa Adillatuh, also discuss this matter explicitly, devoting a subsection to the definition, requirements, and duration of hadhanah, thereby offering a comprehensive framework for understanding its implementation in Islamic family law.
In his work.
Wahbah al-Zuuayl defines uasAnah as follows: etymologically, the concept of uasAnah derives from the word al-uisn (A) aOAe aA, meaning Authe side of the bodyAy or Auembrace,Ay which connotes closeness, protection, and care.
SharAoah terminology, uasAnah refers to the custodial effort undertaken by the party entitled to care for a child, particularly when the child is still unable to meet his or her own needs .
hayr al-mumayyi.
, such as the need for food, clothing, bodily cleanliness, bathing, and the management of daily necessities.
Wahbah al-Zuuayl further explains that this custodial responsibility also extends to the care of adults who have lost the capacity for sound judgment, as reflected in the statement:
AuAa aI ac a aa a a a ei a aACa Aoa aE aO e aoARA a eAS Ai a eiIa a e aA a a AAy aO aOAa a a aiA AuuasAnah is the protection of one who is unable to manage his own affairs.
Ay Within the framework of fiqh, uasAnah is a form of responsibility and guardianship .
ilAya.
that, in its early stages, is generally deemed more suitable for women.
This is because the gentleness, affection, and patience associated with maternal qualities are considered more aligned with the developmental needs of young children.
When the child reaches a certain stage at which rational guidance and stronger social regulation become necessary, the right of custody may transfer to the father, who is regarded as better positioned to provide protection and discipline during that phase.
The jurists unanimously agree that uasAnah is a mandatory obligation .
Aji.
, as negligence in caring for a child may endanger his or her safety and developmental well-being.
This obligation aligns with SharAoah directives requiring caregivers to fulfill the basic needs of children, similar to the duty of financial support .
Because uasAnah requires wisdom and attentive concern, scholars consider it reprehensible .
to engage in behaviors that may cause harm to the child during the caregiving period, including uttering harsh words toward the child, household helpers, or property.
This view is supported by the ProphetAos A Astatement:
Au Aa aI e a a a eCAZ A aO a ae aUAUAa aI eO a a a eAZ A aO a ae aUAUAa aI e ai a a eCAZ A" a ae aUA AuDo not invoke harm upon yourselves, your children, or your wealth.
Ay In another narration.
Ibn AoAbbAs reports that Aus ibn AoUbAdah al-AnAr once informed the Prophet A Athat he had daughters and had invoked misfortune upon them.
The Prophet A Aforbade such supplication and said:
Au A eaaI e a a au ai a aUaAUae a AZ AAy a ae aA AuDo not pray against them, for blessing accompanies them.
Ay The Prophet A Athen elaborated that daughters are a source of blessing.
bring joy in times of ease, offer support during hardship, and provide care in moments of illness.
This affirmation underscores that uasAnah is not merely a social obligation but also a moral trust endowed with spiritual value (Az-Zuhayli.
Wahbah al-Zuuayl also outlines several general requirements for individuals eligible to hold custodial rights, including:
Reaching legal maturity .
Alig.
Possessing sound intellect (AoAqi.
Having the capacity to educate the child Demonstrating trustworthiness .
mAna.
In several schools of law, such as the ShAfiAo and anaf schools, adherence to Islam is considered a condition for custodianship In addition, al-Zuuayl discusses the legal ruling concerning the right of visitation for the parent who does not receive custodial authority after divorce.
The scholars unanimously agree that the parent who does not hold uasAnah retains the right to visit the child in order to preserve familial bonds.
Wahbah al- a a Aa e aA.
a AA aO ao a eI a a ea aOA, meaning that Zuuayl states: A A aO a aAga a Aa c aAh A a ei UOaA5a a A a a e aAka Ae a a e aAm5AA neither parent may prevent the other from visiting the child, as such visitation constitutes an act of maintaining kinship ties .
lat al-raui.
Within the anaf school, when the child is under the care of the mother .
luAsina.
, the father is entitled to visit the child.
Visitation may take place by having the mother bring the child outside so that the father may see the child on a daily basis.
Conversely, if uasAnah transfers to the father due to the lapse of the mother's custodial right or because of another Sharah-based cause, the mother continues to retain visitation rights through the same mechanism.
However, according to customary practice deemed beneficial, the frequency of visitation is once per week.
Al-Zuuayl cites the anaf position:
A aA aeARA eArq a a U a A5a a AO aOA a Aa auAmAA aOA a Aa aAu A caI eIAvq e AI aA AuThe mother is entitled to visit her child once a week.
Ay According to the MAlik school, a mother has the right to visit her young child once daily.
For older children, the frequency becomes weekly.
The father enjoys the same visitation rights as the mother, but these are limited prior to the child entering formal education.
After the child reaches that age, visitation is scheduled periodically according to what best serves the childAos welfare.
Al- q e AAu A aO aAThe mother .
ho does Zuuayl notes: A sA aeARA eAq A aOe au a ac aAUa aa ac a a e sIA5a a A a a aOAka A caI aAv not hold custod.
is entitled to visit her young child every day, and to visit the older child once a week.
Ay The ShAfi school holds that when a child who has reached the stage of tamyz chooses to reside with the father, the mother still retains the right to visit the child.
The father may not prohibit such visitation, as doing so would sever a a AI a aAra a5a a A a a aOAka A caI a e aArq Ae aO AEA a aAve AAu Ai A a a ao a aAThe family ties.
It is stated: A Aa a aAh A{ a eE UUaA father is not permitted to prevent the mother from visiting her child, for such an act would constitute severing kinship bonds.
Ay However, visitation must not be If the father refuses to allow the mother to enter the home, he is obligated to bring the child outside so that visitation may still occur.
In cases where the child is ill, the mother has a stronger claim to provide care due to her gentleness and attentiveness, though the interaction must avoid circumstances that could lead to khalwah.
The anbal schoolAos view is generally aligned with that of the ShAfis.
If a tamyz-aged child chooses to live with the father, the father may not prevent the mother from visiting or caring for the child during illness.
If the child resides with the mother, nighttime is spent with her, while daytime is spent with the father for educational purposes.
For a female child, after the age of seven she is placed under the fatherAos care until marriage, yet she retains unrestricted visitation rights with her mother, with neither parent permitted to prevent such contact.
Al-Zuuayl affirms: A Aa a aAh A a a eE UUaACA a a eaaI aeAka AA a c Ae aOAEA aA% AAu Ai A aO a a auAIt is not lawful to prevent visitation, for doing so constitutes the severing of kinship ties.
Ay (Az-Zuhayli, 2.
Regarding the responsibilities of the custodial guardian.
Wahbah al-Zuuayl explains that from a fiqh perspective, the father bears the primary responsibility for safeguarding, educating, and equipping the child with the necessary skills for his or her future livelihood.
This is consistent with the foundational principles of child care in Islamic law, which emphasize that the father is the party obligated to provide financial support and protection.
Women, by contrast, may not be hired for tasks that could expose them to khalwah with the male employer, as such circumstances are prohibited by the Sharah.
The jurists state:
Aua A aUaOACA e a ai aO a ca A%A a a a AoACA a aa aeA a A e a a a a aoAea eAI e ae aA aa e a e a a a a aE a A.
Ay AuHiring a woman for work in situations that may lead to khalwah is impermissible because it contains elements of suspicion and must be prevented as part of sadd al-dharAAoi .
locking the means to wrongdoin.
Ay Meanwhile, the uAshinahAiwhether the biological mother or another appointed female guardianAibears full responsibility for attending to the childAos basic needs while the child is under her care.
These needs include physical care, clothing, and other daily requirements, the costs of which must be provided by the The provision of maintenance .
may be arranged on a daily, weekly, or monthly basis according to the courtAos determination.
Such determination takes into account the fatherAos financial capacity and the best interests .
of the child.
In this context, the jurists emphasize that the father is not permitted to issue instructions to the caregiver in a manner that could endanger the child, such as saying: AuBring the child to me first, only then may you take the child back.
Ay Such conduct is impermissible because it may expose the child to harm.
The fuqahAAo AuAA a a A aACA a a e a aI e aA a ai eI a eoaua a e U aeA.
Ay c a a Aa Ah Aa UA AuA uAshinah is not required to comply with any instruction that entails harm to the child.
Ay (Az-Zuhayli, 2.
A Psychological Perspective on the Impact of Divorce on the Family and Its Relevance to Child Protection Article 19 letter .
of Law No.
1 of 1974 stipulates that divorce may be filed before the court on the grounds of ongoing disputes and conflicts between husband and wife, such that reconciliation and harmonious family life are no longer possible.
This provision serves as a concrete legal basis for judges in assessing, examining, and adjudicating divorce petitions brought before the court.
Divorce is often viewed as a solution to family disharmonyAiwhether stemming from prolonged conflict or other factors such as adultery, alcoholism, gambling, abandonment for two consecutive years, imprisonment, or severe physical disability.
Yet behind such decisions lie serious consequences that are frequently overlooked, particularly for children.
Children are the most vulnerable to experiencing significant changes in their daily lives and in their worldview as a result of parental separation.
From a family psychology perspective, divorce can have adverse effects on all family members.
Children often perceive a stark disruption in their routines.
where they once saw both parents at home, they now confront major changes.
Their understanding of parental affection may shift as each parent becomes occupied with post-divorce responsibilities.
The situation may worsen when custody is granted to the mother, resulting in her becoming a single parent, which may lead the child to grow up without the emotional and developmental support of a fatherAia phenomenon widely referred to in contemporary discourse as fatherlessness (Retnoningtias et al.
, 2.
For parents, divorce may generate several negative consequences:
Economic instability: A drastic change in financial conditions may compel a woman to work to meet basic and daily needs, as reliance on financial support from the former spouse is no longer feasible.
Psychological fluctuations: A single mother typically experiences negative emotions such as frustration, disappointment, resentment, or emotional exhaustion in the aftermath of divorce.
Parenting challenges: Former spouses must find effective ways to share parental rolesAiboth materially and emotionallyAito meet the childAos needs, while also adjusting to new forms of communication post-divorce.
Mutual blame: Parents may continue blaming each other for the failure of the marriage, generating hostility and affecting their social standing due to the stigma associated with being a widow or widower.
The consequences for children are equally, if not more, severe, particularly with regard to their developmental trajectory:
Lack of complete parental affection, which can significantly affect emotional and psychological development in later stages of life.
Emotional instability: Children may withdraw, remain silent, self-blame, or feel shame among peers.
Increased negative emotions, such as anxiety, confusion, anger, and Difficulty concentrating, particularly academically, which often results in declining performance due to an inability to focus.
Higher inclination toward behavioral problems during developmental Traumatic responses, including insecurity due to the loss of family cohesion and a diminished sense of protection.
Children may also show reduced social awareness, lower empathy, and limited responsiveness or understanding of social situations, reflecting weakened sensitivity to their environment (Retnoningtias et al.
, 2.
A wide range of studies indicates substantial variation in the psychological impact of divorce on children, largely because each child possesses different levels of psychological resilience in responding to family stressors, including parental conflict (Retnoningtias et al.
, 2.
Moreover, the dynamics of the divorce process itself strongly influence how children perceive and cope with parental separation.
Conflict characterized by verbal or physical altercationsAiparticularly when escalating into domestic violence or open infidelity witnessed by the childAican create profound trauma.
Conversely, a divorce conducted amicably and without involving the child .
or example, when issues such as physical disability or infidelity are kept from the childAos knowledg.
tends to result in milder psychological consequences (Retnoningtias et al.
, 2.
According to Wardah Nuroniyah in her book Psikologi Keluarga, parenting is defined as follows:
AuParenting carries various meanings.
Terminologically, it can be identified as the process of raising a child.
The term AoraisingAo encompasses the methods or ways in which parents fulfill the physiological and psychological needs of the nurture the child based on standards and criteria set by the parents.
instill and enforce values in the child.
Ay Based on this explanation, she emphasizes that parents play an active role in carrying out their duties and bear responsibility for the childAos development.
In her view, parents are not only required to meet the childAos physical needs, but must also provide their best efforts to fulfill the childAos material needs, emotional needs, psychological well-being, and to secure access to the best possible educational opportunities (Nuroniyah, 2.
Furthermore, she explains that the psychological impact of divorce on children may affect the formation of their character.
The consistent presence of both father and mother in a childAos life functions as an essential support system that fosters strong psychological resilience, as the child receives adequate affection and full parental support, and experiences a sense of security due to being consistently supervised throughout various stages of development (Nuroniyah, 2.
The problem arises when the absence or incompleteness of parental presence generates serious consequences for the childAos development.
Without a unified guideline or integrated parenting framework from both parents, many children affected by divorce experience long-term psychological effects.
This may lead to significant developmental challenges.
If not properly addressed, these effects may become emotional burdens carried into adulthoodAieven into marriage ultimately affecting family well-being and contributing to stress in future In more serious cases, the consequences of parental divorce may hinder children from receiving adequate parental support when they themselves are preparing for marriage (Varzaneh & Bagherian, 2.
This issue is particularly notable because parents who have established new families often become reluctant to gather together during their childAos wedding.
Even during the marriage approval process, the child may only communicate with one parent, creating emotional as well as administrative barriers.
In divorce proceedings, the determination of child custody is not solely a legal matter.
it also involves profound psychological considerations.
Family psychology, as a discipline that examines the dynamics of familial relationships, offers crucial contributions to addressing the emotional, social, and developmental needs of children after parental separation.
A family-psychology approach becomes indispensable when making custody decisions, as such decisions must consider which parent is most capable of providing a stable and healthy developmental environment.
Child protection within IndonesiaAos legal system relating to divorce must reflect an understanding of the childAos best interests, including psychological Law No.
35 of 2014 on Child Protection affirms that children are entitled to physical, mental, and social protection.
In practice, it is essential to account for the childAos psychological condition so that judicial decisions conform to and align with the principle of the best interest of the child.
Parents are expected not only to fulfill the childAos basic needs but also to ensure their mental, physical, and social security.
However, in many cases, the mental well-being of the child remains overlooked within parenting practices.
Normative Analysis of the Implementation of Law No.
35 of 2014 on Child Protection After Divorce Law No.
35 of 2014 is an amendment to Law No.
23 of 2002 concerning Child Protection.
This statute serves as the legal foundation for all regulations, policies, judicial decisions, and matters relating to children, including efforts to safeguard and fulfill childrenAos rights in divorce cases.
The law emphasizes the childAos right to live, grow, and develop in accordance with their dignity as human It also reflects the governmentAos commitment to the ratification of the Convention on the Rights of the Child, forming a fundamental pillar in the effort to protect children from potential violence and discrimination.
In divorce cases, the best interest of the child principle constitutes both a moral and legal basis that must be invoked before the parties, particularly within judicial proceedings.
Law No.
35 of 2014 regulates various child-related rights in the context of divorce, such as custody, education, and protection including protection from family conflicts that may significantly affect a childAos mental well-being.
The statute also mandates the safeguarding of childrenAos rights, particularly in relation to education, protection from physical violence, and mental health.
Substantively, the law requires the active contribution of the State, government, local authorities, the community, families, parents, and guardians to ensure that child protection is realized comprehensively and indiscriminately.
However, empirical findings show that its implementation often remains inadequate, especially regarding childrenAos mental and psychological conditions.
Based on direct observation conducted at the Religious Court of Binjai, it was found that the judicial panel has made optimal efforts to render decisions in accordance with applicable regulations, including the Child Protection Law.
Nevertheless, in practice, deviations still occur and often go undetected or This is reinforced by the findings of Mardi and Fatmariza .
in their study.
Faktor-Faktor Penyebab Keterabaian Hak-Hak Anak Pascaperceraian.
Their research identified at least three major factors causing the neglect of childrenAos rights after divorce in Padang City: .
economic conditions.
poor communication between divorced parents.
lack of parental awareness and responsibility (Mardi & Fatmariza, 2.
Additionally, a study by Islamiyah.
Mamonto, and Stoffel .
Parents' Responsibilities towards Children After Divorce, reported a case in Jayapura in which a former wife prohibited the former husband from meeting their child.
Such cases demonstrate that, in practice, court decisions still leave gaps that allow deviations by involved parties, either due to lack of awareness or the emotional childrenAos (Islamiyah et al.
, 2.
According to Satjipto RahardjoAos theory of legal protection, the law exists so that individuals and communities may fully enjoy the rights conferred upon them.
Law functions not only as an adaptive and flexible instrument but also as a predictive and anticipatory one.
Legal protection is especially needed by those who are socially, economically, and politically weak, in order to obtain social justice (Fuad et al.
, 2.
Rahardjo emphasizes that the law is essential for vulnerable groups lacking sufficient social, economic, or political power.
Its purpose is to ensure social justice, particularly for individuals who are unable to assert their rights within complex social realities.
The law is expected to function as a protective mechanism for vulnerable populations and to guarantee that every individual receives their rights fairly.
In the context of child protection after divorce, this theory carries significant Based on the issues described above, it is evident that the implementation of Law No.
35 of 2014 often falls short of fulfilling childrenAos concrete protection needs, especially in psychological and social aspects.
This indicates a persistent gap between the ideal legal norms .
as Solle.
and the reality in practice .
as Sei.
Thus.
RahardjoAos theory of legal protection serves as a critical framework for assessing the extent to which the legal system has effectively functioned to protect children as the most vulnerable parties in divorce-related conflicts.
Implementation of Legal Protection for Children in Divorce Cases at the Religious Court of Binjai The Religious Court of Binjai is a first-instance judicial body with territorial jurisdiction over the City of Binjai, comprising five districts, eleven villages, and eleven urban wards (Binjai, 2.
In 2024 alone, at least 767 divorce cases were filed and adjudicated before this court.
Drawing upon the theoretical frameworks previously outlined, this section presents an empirical account of the courtAos practices based on interviews with judges and relevant scholarly works.
According to the thesis written by one of the judges of the Religious Court of Binjai.
YM Nur Khozin Maki who also served as a member of the judicial panel in Case No.
368/Pdt.
G/2021/PA.
Bji decisions concerning child custody .
in divorce proceedings adhere firmly to the best interest of the child In the aforementioned case, the panel applied Article 105.
of the Compilation of Islamic Law (KHI) (Maki, 2.
, reinforced by the provisions of Law No.
48 of 2009 on Judicial Power.
With respect to childcare and financial maintenance, the panel anchored the fatherAos financial obligations in Article 41.
of Law No.
1 of 1974 on Marriage (Maki, 2.
, as well as Article 156.
of the Compilation of Islamic Law.
Although the respondent in the reconventional claim refused to provide support on the grounds that the children were already over 12 years old, the judges held that the fatherAos obligation to provide maintenance does not terminate upon divorce.
Consequently, the court determined a proportional maintenance amount by considering the fatherAos income as an unskilled laborer, while also taking into account the motherAos physical conditionAishe had undergone amputation due to diabetes.
The determination was made to ensure that the financial burden would not be excessive for either parent, yet remained sufficient to meet the childrenAos basic needs.
Furthermore, the judicial panel referred to Supreme Court Circular Letter No.
1 of 2017, which mandates access rights for the non-custodial parent.
explicitly stipulating visitation obligations within the hadhanah rulingAiand by granting the authority to revoke custody if the custodial parent obstructs visitationAithe panel sought to ensure that the childAos emotional bond with the non-custodial parent is preserved.
This provision aims to prevent emotional trauma and insecurity by maintaining the continuity of the childAos relationship with both parents, even when formal custody is granted to only one party (Maki.
Consistent with the researcherAos previous analysis, the de jure application .
as solle.
of child protection demonstrates that the implementation of child custody rights is in accordance with Law No.
35 of 2014.
The General Provisions of the law emphasize that Auevery child must be given the widest possible opportunity to grow and develop optimally, both physically, mentally, and Ay The Religious Court of Binjai has made substantial efforts to guarantee these opportunities, both financiallyAithrough orders on child maintenanceAiand psychologically, by emphasizing the importance of visitation rights.
This is supported by the results of an interview with Judge Nur Khozin Maki, summarized as follows:
AuRaising a child cannot be done carelessly, especially in early childhood when the child does not yet understand anything.
Parenting must include education, affection, and the fulfillment of other needs.
Even when the mother has custody, civil determination remains necessaryAifor example, when she plans to Childcare costs should ideally be calculated based on income.
Due to time constraints, it is not problematic if the father takes over care on certain days, such as MotherAos Day.
Joint parenting patterns like this are considered better.
The determination of the childAos needs, excluding education and health costs, may follow an annual increase of about 10%.
Education and health expenses are excluded because they are unpredictableAiwe do not know when a child may fall ill, nor the variation in educational costs from kindergarten to senior high school.
All of this constitutes an effort to protect children as victims of divorce.
Ay From the psychological perspective, he further stated:
AuFor the best interest of the child, it is crucial to maintain the childAos right to visitation, affection, and attention from both parents.
This also serves as mutual supervision and shared responsibility between father and mother.
For instance, if the mother cares for the child during weekdays because school runs from Monday, then the father may be given time with the child on weekends, such as Saturday or Sunday, after which the child may return to the mother in the afternoon.
In this way, the father remains involved in parenting and can provide needed affection.
must be remembered that a childAos needs are not merely material.
Children also require attention, presence, and affection from both parents.
Problems must remain between the father and mother.
the child must not become a victim of parental selfishness.
Ay Despite these normative provisions, the realities of practice within society vary considerably.
There remain individuals who disregard court rulings and statutory child protection requirements.
Therefore, concrete strategies are necessary to ensure the effective realization of child protection, including:
Enhancing legal education for the public regarding childrenAos rights postdivorce.
Consistent and firm law enforcement against violations of childrenAos rights, including breaches of visitation orders and failure to provide maintenance.
Strengthening inter-institutional coordination, including collaboration among child protection agencies, law enforcement officials, and community leaders.
To prevent the recurrence of similar issues, all parties must develop awareness of the long-term psychological impacts that divorce may impose on Children are valuable assets to the nation, and no one can predict the extent to which future generations will contribute to the countryAos development.
For this reason, the state firmly condemns all actions that may hinder or aggravate a childAos growth and development.
As a form of comparative analysis between das sollen and das seinAiwith respect to Islamic legal concepts, family psychology theories, and their implementation in practiceAithe results are presented in the following comparative table :
Aspect Islamic Law Foundational Concept Child custody .
asAna.
aims to ensure safety, proper KHI Article Children under 12 years old under the care of the mother.
Child Protection Law Custody Child protection is grounded in interest of the security, and child Family Psychology Aspect Islamic Law in accordance with Islamic Party Entitled The to Custody early stages of the childAos life.
KHI Article Family Psychology The mother is children under 12 years of Custodian Must Requirements rational, and capable of Requirements feasibility and ChildrenAos Rights Right to care.
The child lives mother while Parental Visitation Visitation family ties is The childAos parents must be Duration Custody of Custody continues until .
iscernment Custody remains with until the child years of age.
The mother serves as the figure in early Child Protection Law Determined based on what childAos regardless of Custodians The custodian be must guarantee the and child's safety of and welfare.
supporting the childAos Emotional Rights to life, a development, of protection, security, and and fulfillment of affection are basic needs.
Regular Children have visitation is the right to important for maintain child's contact with mental health parents, and emotional provided it is Early No specific closeness with follow the mother.
childAos Islamic Law KHI Article Family Psychology Child Protection Law The father is The bear financial Economic influences the childAos well-being.
Parents child's basic Aspect Financial Support (Nafka.
CONCLUSIONS The psychological protection of children after divorce, under both Islamic law and positive law, positions the best interest of the child as the primary guiding Islamic law, through the concept of uasAnah, establishes that custody must be entrusted to the party most capable of ensuring the childAos safety, affection, and emotional stabilityAitypically the mother, insofar as she fulfills moral and caregiving qualifications.
This principle aligns with Article 105 of the Compilation of Islamic Law (KHI) and is reinforced by Law No.
35 of 2014 on Child Protection, which mandates the state, family, and society to guarantee the fulfillment of childrenAos physical, mental, and social rights.
The findings further indicate that the psychological impact of divorce on children is significant, ranging from emotional disturbances and behavioral problems to heightened vulnerability to trauma.
Accordingly, strengthening postdivorce caregiving systems becomes a central and urgent necessity.
This research contributes to the development of Islamic family law by demonstrating the importance of harmonizing classical fiqh norms on uasAnah, the provisions of the KHI, and the child-protection principles embedded in Law No.
35/2014.
Such integration offers a comprehensive framework for religious courts in adjudicating custody cases, particularly in relation to the psychological needs of childrenAian aspect that has often received limited consideration in judicial practice.
Nevertheless, the study has limitations concerning the empirical scope of data from the Binjai Religious Court, which covers only a specific time period, as well as limitations in the family psychology literature employed.
Moreover, the research has not yet explored the internal dynamics of families through more indepth quantitative or observational approaches.
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