Adoption and Custody of Children in the View of Islamic Law (Normative Theology) and Positive Law in Indonesia

Abstract

Child adoption is one of the noble ways for couples who have not been blessed with children. This study aims to analyze how the concept of adoption and maintenance of children in Islamic law and positive law in Indonesia. The presence of adopted children is expected to fill the lonely days of husband and wife, sometimes even many couples make their adopted children so that later they will have their own children. In Islamic law, in principle, adopted children are not prohibited as long as they involve their upbringing, education and upbringing, however, adopted children are not considered heirs or acquire inheritances if they are related to or related to their legal position in Islamic law. A child is a person who must be protected from everything that can make it difficult for him, to be able to give good deeds done by his parents, and with Hadhanah (the right to custody of children under Sharia Law), it is very important that this Hadhanah be handed over to the mother because it is a job that requires a lot of responsibility and diligence in doing it. In Indonesia, child adoption is governed by positive law, which is different from Islamic principles, but still pays attention to religious and cultural norms. The adoption of positive law in Indonesia is regulated in Law Number 23 of 2002 concerning Child Protection (which has been amended by Law No. 35 of 2014 and Law No. 17 of 2016), Government Regulation Number 54 of 2007 concerning the Implementation of Child Adoption. Child maintenance during marriage is regulated in articles 45, 46 and 47 of Law No. 1 of 1974 as amended by Law No. 16 of 2019 concerning Marriage and during divorce is regulated in article 41. In the Compilation of Islamic Law (KHI) it is regulated in article 105.