The Legal Remedy Imposed the Rights of Children Under the Age to Apostate Mother because of Father Neglect the Children Based on Perspective Islamic Law and Law Number 35 Year 2014 on Child Protection (Study Case by Decision Number 1/Pdt.G/2013/Pa.Mur)

Abstract

The childhood is an important period in human life, because it requires a child in another person, both in ensuring the physical and spiritual salvation of a child. To achieve this requires the roles and responsibilities of both parents. But hope can not be realized, in case of divorce between father and mother of the child. The problem that arises is to whom the child is raised if between mother and father both have legal defect as holder of hadhanah. This is contained in the decision of Maumere Religious Court number 1 / Pdt.G / 2013 / PA.MUR, where in the verdict the mother has legal defect as holder of hadhanah because his apostasy and father also have legal defect because ever been sentenced to imprisonment problem neglect child . As for the verdict the judge decides to set the hadhanah to fall into an apostate mother.This research is a normative juridical legal research with applicable legislation approach. The research phase used literature research and interview with Majelis Ulama Indonesia. The sources and types of legal materials used are primary legal materials supported by secondary and tertiary legal materials. Primary legal material is obtained from legislation related to this research, whereas secondary legal materials are obtained from relevant books, journals, and other legal materials. In analyzing the data that have been obtained by way of classifying primary and secondary law materials and then analyzes by using qualitative normative method in the form of a description to be drawn conclusions in order to get clarity on the problems studied. Conclusions from the results of the study indicate that the factors of bad behavior and apostasy that are owned by the applicant and the requested party, basically make the two parties hindered to get rights hadhanah for their three children. This is stipulated in Article 156 (c)  of the Compilation of Islamic Law. Whereas in the verdict the judges decide the right to be given to apostate mothers, on the grounds that child harm will be lighter if the child is in mother's care than with his father who has neglected his family. In the Compilation of Islamic Law and Law Number 35 Year 2014 on Child Protection there is no article that regulates how if child custody falls to apostate parents. However, the Qur'an strictly prohibits if a Muslim is taken care of by unbelievers because it is feared that the unbelievers will dominate the Muslims.