Child Custody
2024-03-15
Under Article 1168 of the Civil Code, the care of children is both a right and a duty of the parents. Under Article 1169 of the Civil Code, for the custody and care of a child whose parents live apart, the mother has priority until the child reaches the age of seven, and after that the father does.
After age seven, if a dispute arises, custody is determined by the court based on the best interests of the child. In Iranian law, the upbringing and raising of a child is referred to as "hezanat" (custody).
Given these two articles, custody is the authority that the law grants to parents for the purpose of caring for and raising their children. In this authority, right and duty are intertwined.
Custody is guardianship over, and authority over, a child's upbringing. The rights of the parents are the means by which they carry out their duties, and custody can be broken down into two elements: caring for and raising the child.
Who is responsible for custody
Custody of a child is, in the first instance, a right and duty of the parents. But when one or both parents die, or the parents separate, the question of who takes on custody arises, and a decision must be made based on the child's best interests.
From the provisions found in the Civil Code and the Family Protection Act, it can be understood that if one parent dies, custody passes to the other. The next in line for custody are the paternal grandfather and any guardian appointed by the parents, who are qualified to take on custody.
Custody before age seven
Custody of a child or children (whether daughters or sons) up to age seven rests with the mother, unless the parents agree otherwise. The father has no right to separate children under seven from their mother unless he has a valid excuse and legal grounds, in which case he must still go to court and prove his claim. If the father refuses to hand children under seven over to the mother, the mother may apply to the court for a temporary order for the child's return. Since custody belongs to the mother by law in this case, she does not need to prove anything in court, and the court immediately issues an order for the child's return, which is enforceable at once.
Custody after age seven
Custody of a child or children (whether daughters or sons) after age seven rests with the father, unless the parents agree otherwise. Although custody after age seven belongs to the father, if the mother can prove in court that the father is unfit for custody, the court decides who should have custody based on the child's best interests. The law does not set a fixed standard for the child's best interests, but physical and psychological health and the manner of the child's upbringing and education are generally taken into account. The court may even, where the child's interests require it, award custody to a third party other than the parents.
Custody after the age of puberty
The age of puberty is nine full lunar years for a girl and fifteen full lunar years for a boy. After reaching this age, the child may decide for themselves which parent they wish to live with.
Custody after divorce
The law also determines custody after divorce. Accordingly, custody of both daughters and sons rests with the mother until age seven, and after that with the father until puberty.
If one parent refuses to comply, the court may compel the parent responsible for custody to carry it out. If compelling them is not possible or effective, the court provides for the child's custody at the father's expense, or, if the father has died, at the mother's expense.
Under the Civil Code, custody is by nature both a right and a duty of the parents — meaning the parents have the right to care for and raise their child, and are also legally obligated to do so. So if one parent refuses to do this, the other may ask the court to compel them.
Custody after the father's death
If the child's father dies, under the law custody rests with the mother, and no one has the right to deprive the mother of this right except by operation of law; nor can the mother refuse to care for and raise her child after the father's death, except for a legally valid excuse — because if the mother refuses custody, the court can compel her to care for the child, and if this is not possible, the court provides for the child's custody at the father's expense, or, if the father is no longer living, at the mother's expense.
The care and custody of minor children whose fathers have attained the high status of martyrdom or have died is granted to their mothers; in addition, the government, or in the case of a father's martyrdom the Foundation for Martyrs and Veterans Affairs, pays the children's living expenses to their mother within a reasonable limit.
Custody if the mother remarries
The legislature has allowed the mother to continue having custody of her children even if she remarries, but under the law the husband must give his permission for the guardianship, and it is customary for the husband to appear at the guardianship office and declare his consent in writing. Two points are worth noting here: first, regardless of the fact that an uncle or aunt has no role in custody, if the mother is found unfit to care for the children, this right is taken from her by the court — for example, a woman with a bad reputation, or whose behavior and conduct are inappropriate and harmful to the children's upbringing. If the paternal grandfather reports this to the court and requests that the mother's qualification be revoked, the court investigates the matter appropriately and instructs social workers or the police to visit the children's place of residence and that of their mother; if the paternal grandfather's claim, or that of any other person who reported it, proves accurate, and it is not in the children's best interests for the mother to care for them, custody is given to him, and otherwise it is entrusted to a suitable person among the relatives. Second, custody covers only the physical and psychological care and upbringing of the child — feeding, raising, educating, and whatever is needed for the child's well-being — but important financial matters concerning the child, such as real-estate transfers and the purchase or sale of a house, fall to the paternal grandfather. Important non-financial matters, such as obtaining a passport or granting permission to marry, can also be added to this list.
Revocation of custody
Whenever, due to the parents' negligence or moral degradation, the physical health or moral upbringing of the child or children is placed at risk, the court may, at the request of the child's relatives, the child's guardian, or the head of the judicial district, take whatever decision it deems appropriate regarding custody. The following are considered examples of parental negligence or moral degradation:
- Harmful addiction to alcohol, narcotics, or gambling.
- Abusing the child or forcing them into immoral occupations such as prostitution, vice, begging, or smuggling.
- Repeated beating or assault beyond what is customary.
- A reputation for moral corruption or prostitution.
- Suffering from mental illness as diagnosed by forensic medicine.
In addition, if the mother becomes insane while she holds custody, or if she remarries and the father is also unqualified, the court will award custody of the child to another person among the child's relatives.
A lawsuit to revoke custody
A lawsuit to revoke custody arises when one parent files suit against the parent holding custody, alleging their unfitness to care for the child. Grounds for filing such a suit include mistreatment of the child, including excessive beating, forcing the child into begging, prostitution, or smuggling, mistreatment or neglect of the child, addiction to alcohol or narcotics, a reputation for moral corruption and prostitution, addiction to gambling, or the death of the parent who held custody. Likewise, if custody rests with the mother, the father may file a suit to revoke her qualification upon her remarriage. As in other lawsuits, the burden of proof in a custody-revocation suit rests with the claimant, who may prove their claim by requesting an expert opinion, summoning witnesses, and other evidence.
Steps to revoke custody
Either parent who claims the other parent is unfit may file a custody-revocation petition with the court, citing one or more of the grounds above. A mere claim is not sufficient, however — the claimant must also provide the court with acceptable evidence. For example:
If claiming that the other party beats the child in cases where the marks of beating are not visible, or where psychological abuse has occurred, the claimant must have a witness or a forensic medical certificate.
If there are visible marks of beating on the child's body, the claimant can submit a forensic medical certificate to the court.
A parent who does not have custody is not, in general, deprived of visitation with their child. They have the right to visit their child, and if the parents cannot agree on the arrangements for such visits — for example, the time and place — the court will resolve the matter.
This right is one the law recognizes, to the point that if the parent holding custody obstructs the other parent's visitation, the court will intervene and take an appropriate decision — for example, it may revoke custody from that parent or appoint a supervisor (Article 41 of the Family Protection Act).
Furthermore, the parent holding custody cannot take the child under their custody outside the country without the other parent's knowledge and consent; this can only be done if the court determines it is in the child's best interests and permits it while taking into account the visitation rights of those entitled to them.