The Disparity of Judge's Verdict on Child Custody Decision in Aceh Sharia Court

Abstract

This article aims to explain the difference in the judge’s ruling (disparity) related to child custody (hadhānah) in the Aceh Sharia Court. This article is field research with a qualitative approach. The research method used is a normative-empirical law phenomenology that compares several judges' verdict on hadhānah case in Aceh sharia court. In addition, it also describes that although Indonesia has the same islamic legal product (KHI) but in implementating between one Judge and another can produce a different verdict. The disparity of the judge's decision occurred in some cases in Aceh began from the legal provision that the child could not choose father or mother if the condition had not been mumayiz. In the context of the age, the custody is given to his mother. In fact, there is a problem about different verdict by KHI, that is the custody given to the father at the first stage, and custody back to the mother at appeal stage in Sharia Court. The results of the study are; First, the disparity of the judge's verdict is a reasonable situation that occurs depending on the explanation of witnesses and the fact-finding in the field. Second, the KHI format is not absolute in deciding the cases, it takes other prove so that the Judge invites expert witnesses to consider the verdict. Third, consideration of the child's mental, environment, and condition should be a priority to decide on ideal custody.