TINJAUAN TENTANG PENETAPAN HAK ASUH ANAK DI BAWAH UMUR KEPADA AYAH AKIBAT PERCERAIAN DI PENGADILAN AGAMA PEKANBARU

Abstract

Marriages can break up due to death, divorce, and court decisions. The most common
cause of legal problems that should be given an alternative solutions is the breakdown of
marriage due to divorce. Divorce can cause several legal consequences, one of which is the
legal consequences for children and their care. In the event of divorce, child custody can be
given to the mother if the child is under the age of 18 years. But it can be ruled out, if the
father can prove if the mother is not eligible for child custody. In this case, the author takes
the example of Decision Number 1513/Pdt.G/2022/PA.Pbr, in this judgment the custody of
the minor falls to the father, where the minor child needs love and attention from a mother.
The purpose of this thesis research is to determine the judge's consideration in determining
the custody of minors to the father due to divorce at the Pekanbaru Religious Court and to
find out the judge's consideration in determining the custody of minors to the father due to
divorce based on the perspective of legal expediency theory.
This type of research is a type of sociological research conducted at the Pekanbaru
Religious Court. The population and samples used are the Pekanbaru Religious Court Judge
who tried the case, the father who litigated, and the mother who litigated. The data sources
used are primary data and secondary data. The data collection techniques used are literature
review and interviews.
The result of this study is that the judge's consideration in determining the custody of
minors to the father due to divorce in the Pekanbaru Religious Court is that the judge argues
that Article 105 of the Compilation of Islamic Law letter (a) which explains that the
maintenance of children who are not yet mumayyiz or not yet 12 (twelve) years old is the
right of the mother. But it is not absolute, because the most important thing is the benefit for
the child himself, then the custody of the child is given to the father because the father
behaves better than the mother and the judge's consideration in determining the custody of
minors to the father due to divorce based on the perspective of the theory of legal expediency
in terms of the element of legal expediency has been fulfilled because the decision has had an
impact and benefit to the parties and children. The author's suggestion is for the Panel of
Judges, in deciding a case in the future to ensure the condition of children in which field is
preferred for the benefit of children being cared for by mothers, fathers, or jointly and for
both parents, must remain fully responsible for their children without being hindered by time
and situation.

Keywords: Child Custody - Divorce - Mumayyiz