Abstract:

This study examines the disparity in judges’ considerations in determining child custody (ḥaḍānah) for children who have not yet reached mumayyiz age, through a case study of Decision of the Yogyakarta Religious Court No. 348/Pdt.G/2021/PA.YK and Decision of the Jepara Religious Court No. 1492/Pdt.G/2021/PA.Jepr. The primary focus lies in analyzing the reasons and legal foundations underlying the divergent rulings. This research aims to explore the factors contributing to such judicial disparity, to deepen understanding of the legal reasoning employed by judges, and to assess the extent to which these decisions align with the principles of Islamic law and child protection. The study employs a normative juridical approach based on document analysis, strengthened by interview data. It is grounded in theories of legal realism, legal interpretation, and judicial reasoning. The findings indicate that the Jepara Religious Court’s decision tends to adopt a legal realism approach, prioritizing factual conditions and the best interests of the child even when they diverge from normative legal provisions. Meanwhile, the Yogyakarta Religious Court’s decision seeks to balance normative legal rules with factual considerations in a more proportional manner.