Loss of Custody and How to Recover It

A Comparative Analytical Study

Abstract

The subject of custody is of great importance, as it directly impacts the physical and educational development of the most significant being created by God – the human. After the dissolution of a marriage, custody becomes one of the most critical issues arising from it. The upbringing and care of children are of utmost importance, and determining which parent – the father or the mother – is more entitled and capable of providing custody remains a matter of careful consideration. Custody means caring for, nurturing, and protecting the child until they are able to defend themselves, their rights, and meet their life needs independently. One of the most common disputes currently brought before courts revolves around custody and determining who is legally entitled to it. This matter requires thorough academic and legal analysis, especially as protecting children’s rights has become a central principle worldwide. In fact, countries are now evaluated based on their adherence to the rights of children and women. In this research, we examine the concept of custody and its legal nature within Iraqi law, the French Civil Code, and the legislation of some Arab countries. We also discuss the pillars and conditions of custody to clarify its essence. Furthermore, we highlight cases where custody is forfeited, the process of reclaiming it, and the distinction between recovery and transfer. Finally, we present proposals to better define custody rights, set conditions for custodians, and suggest procedural rules for custody lawsuits, hearings, judgments, and their consequences.