چکیده:
Natural guardianship and custody are two crucial legal institute derived from Imamie Jurisprudence with a dual nature of right-duties. They are considered as supportive instruments for upbringing and educating the children as the most vulnerable and decisive segment of each society. The two institutes have a wide spread domain and conditions which led to their conceptual and legal discrepancies، despite of their similarities. Mental relinquishment toward the term custody cause us to concentrate on the meaning of educating and up-bringing in divorce period; however it embraces in fact the marital status as well. Mother's custodial role is realized in executive and supervision aspects. This role is of great importance، concerning the wide guardianship and authority of father and the possibility of his abuse of the child's physical and mental weakness as well as refusing to conduct his custodial and guardianship duties. The importance is rooted in achieving the child happiness and avoiding the child trauma. Therefore، in this paper we are going to explore and explain the main characteristics of the natural guardianship and custody according to Imamie jurisprudence and law in a comparative method. Then، we have presented solutions for probable contradictions in parental decisions for the children in marital period as well as evidences and proving ways for mother and judicial officials to resort، when they face father's harmful and corruptive decisions for his child.
خلاصه ماشینی:
Assessing the Capacity of the Mother's Custodial Role in the Face of the Father's Abuse of Wilayah and Custodial Authority Seyyed Abolghasem Naqibi Raheleh Kardavani Mahdi Vakili Abstract "Compulsory Guardianship" (Wilayat-e Qahri) and "Custody" (Hazanat) are two important legal constructs derived from Imami jurisprudence that, due to their dual nature of right-duty, serve as tools for the protection, care, and upbringing of children—as one of the most vulnerable and fate-determining segments of society.
In this regard, this research first extracts the main characteristics of "compulsory guardianship" and "custody" from Imami jurisprudence and positive law and provides a comparative explanation, and then proposes solutions for resolving potential conflicts in parental decisions for the child during the marriage period, as well as the proofs and methods of evidence available to the mother and judicial authorities that can be relied upon if harmful and corrupt decisions by the father regarding the child are observed.
And if such an obligation is established for the mother, what legal solutions exist for her to exercise an active role against the husband's corrupt decisions regarding the child within the family?" 1- Semantics, scope, conditions, and the legal nature of "compulsory guardianship" (Wilayat-e Qahri) and "custody" (Hazanat) In order to examine the relationship between the two jurisprudential-legal constructs of compulsory guardianship—of which paternal guardianship is a form and is the subject of this research—and custody, the initial meaning and fundamental characteristics of each will be stated by referring to jurisprudential and legal opinions, and then the main objective of the research, namely determining the relationship between these two institutions, will be elaborated.
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