Determining Custody Criteria in the Context of the Best Interest of the Child

Document Type : Original Article


1 Assistant Professor. Kharazmi University

2 Human Sciences, Shahed University, Tehran



Deciding in the subject of custody and the children guardianship in a legal system totally depends on each system’s approach towards child and childhood’s conception. In this regard each system has it’s own factors. While we face with the concept of interest or Ghebte in Islamic jurisprudence, the best interest of the child (BIC) was bolded after convention on the rights of the child’s ratification (CRC) in 1989. Although Iran has joined the convention, the dynamic and ambiguous nature of interest prepare the possibility of different interpretations which will lead to judgements’ dispersion and assessors’ confusion. Thus CRC’s committee has tried to solve the problem and enjoying the internal laws may be effective. The aim of this research is the access to the custody criteria as the leading factors according to the CRC and internal laws’ capacity in the context of BIC. Thus presenting that criteria will be the result.


Main Subjects

  1. Lynne Marie Kohm, “Tracing the foundation of the best interest of the child Standard in American Jurisprudence,” Journal of Law and Family Studies 10, no. 2 (2008):10.
  2. Committee on the Rights of the Children, General Comment No. 14 on The Right of the Child to Have His or Her Best Interests Taken as A Primary Consideration (United Nation, 2013, art. 3, para. 1), 4.
  3. Children’s Bureau, Determining the best interests of the child (Washington D.C: U.S. Department of Health and Human Services, Child Welfare Information Gateway 2016), 3.
  4. Joan B. Kelly,” The Best Interests of the Child a Concept in Search of Meaning,” Family and Conciliation Courts Review 35, no. 4 (1997): 381.
  5. Thomas J. Walsh, “In The Interest of a Child: A Comparative Look at the Treatment of Children under Wisconsin and Minnesota Custody Statutes,” Marquette Law Review 85, no.4 (2002): 930.
  6. U.S. Dept. of Labor (1996), 20 Facts on Women Workers, No. 96,
  7. John Belanger, The Modern Application of the "Best Interests of the Child" Theory in Custodial Law (The Honors Program Senior Capstone Project, Faculty Advisor, 2007), 6.
  8. Aaron Larson, Fathers' Rights and Child Custody Law,, accessed on February 4, 2007.
  9. Katharine T. Bartletir, ‘Child Custody in the 21st Century: How the American Law Institute Proposes to Achieve Predictability and Still Protect the Individual Child's Best Interests,’ Willamette Law Review 35, (1999):10.
  10. Erin Bajackson, II Larry V Swall, Best Interests of the Child: Child Custody Standards – Past, Present &
  11. Beth Isaacs, Marla, Leon, George H., Kline, Marsha. “When Is a Parent Out of the Picture? Different Custody, Different Perceptions.” Family Process 26, no.1 (1987): 101-110.
  12. Robert Bauserman, “Child Adjustment in Joint-Custody Versus Sole-Custody Arrangements: A Meta-Analytic Review,” Journal of Family Psychology 16, no.1 (2002): 91.
  13. Yuri Joakimidis, Back to the Best Interest of the Child: towards a rebuttable presumption of joint custody (Adelaide: Child Support Action Group, 1994), 46.