ANALISIS YURIDIS SOSIOLOGIS PENETAPAN HAK ASUH ANAK PASCA PERCERAIAN ORANG TUA (Studi Di Pengadilan Agama Kabupaten Malang)

This research discusses the determination of child custody for children who are not yet mumayyiz and are granted to the father after the parents' divorce. In general, when a divorce occurs, children who are not yet mumayyiz or under twelve years old are awarded to the mother. However, it is not uncommon for the Panel of Judges to grant custody to the father. This research provides an overview of the importance of legal considerations made by the Panel of Judges in deciding child custody cases. The study aims to determine the legal considerations used by the Panel of Judges at the Malang Regency Religious Court when granting child custody to the father, as well as the factors that influenced this decision. The research method used is sociological juridical, with data analysis employing a descriptive qualitative approach. The findings of this study are as follows: First, judges base their child custody decisions on the mother's morals. If the judge determines that the mother does not possess good morals, the child may be awarded to the father. The legal consideration applied is Article 14 paragraph (1) of the Child Protection Law, which emphasizes the best interests and welfare of the child. Judges may deviate from the main provisions in the Compilation of Islamic Law when there are circumstances that could harm the child psychologically or sociologically. Second, factors that influence judges' decisions to grant custody to the father include the mother's morals and moral fitness, the child’s comfort and welfare, as well as religious. The results of this study are expected to inform further research on the criteria used by judges to assess a mother's suitability, and to serve as a reference for the community in handling similar conflicts.