Subtopic 3 — Custody
Article 236:
(1) Custody is caring and nurturing of child during the period in which child needs care and nurture
of woman.
(2) Custody is the right of persons specified on the basis of this Law.
Article 237:
Lineage mother has a priority right of care and nurture of child, during marriage and after separation,
provided that she meets capacity conditions for custody.
Article 238:
Woman who takes custody of child must be sane, mature, and trustworthy so that no fear of losing the
child due to her recklessness exists. She must have the ability to care and nurture the child.
Article 239:
Women who have the right of custody are as follows in order of the degree of entitlement:
1 – Mother, mother of the mother or the upper in this line.
2 – Mother of father.
3 – Full sister.
4 – Akhyafi half-sister (from the same mother but a different father).
5 – `Alati half-sister (from the same father but a different mother).
6 – Daughter of full sister.
7 – Daughter of Akhyafi half sister.
8 – Daughter of `Alati half sister.
9 – Full sister of mother
10 – Akhyafi half sister of mother.
11 – `Alati half sister of mother.
12 – Full sister of the mother of the father.
13 – Akhyafi half sister of the mother of the father.
14 – `Alati half sister of the mother of the father.
15 – Sister of father of the mother.
16 – Sister of father of the father.
Article 240:
If persons mentioned in Article (239) of this Law do not exist or if they do not meet the conditions
of capacity of custody, the right of custody shall transfer to distant relatives of the child in order of
inheritance categories.
Article 241:
If persons mentioned in Articles (239 and 240) of this Law do not exist or if they do not conditions of
capacity of custody, the child shall be given to custody of the closet relative in order to entitlement, for
care and nurture, to the following persons:
1 – Father of mother.
2 – Akhyafi half brother.
3 – Son of Akhyafi half brother.
4 – Akhyafi half brother of father.
5 – Full brother of mother.
6 – `Alati half brother of mother.
7 – Akhyafi half brother of mother.
In case the child is male, daughter of brother of father, daughter of sister of father, daughter of brother
of mother and daughter of sister of mother shall not have a right of custody. Also, in case the child is
female, son of brother of father, son of sister of father, son of brother of mother and son of sister of
mother shall not have a right of custody.
Article 242:
If there is more than one person with the right of custody, the court may choose the one who is
considered to be more in the interest of the child.
Article 243:
If the right of custody extinguishes due a legal cause, the right shall be restored with elimination of the
mentioned cause.
Article 244:
Remuneration of custody shall be different from remuneration of fosterage and alimony, and the child’s
father shall be responsible for its payment. In case the child owns personal property, the remuneration
shall be paid from child’s property, unless the father pays it gratis.
Article 245:
(1) So long as mother is married or in waiting period of reversible divorce shall not be entitled to
remuneration of custody.
(2) In case she is waiting period of irreversible divorce or she marries a person who comes under
“prohibited” category to marry for the child, or is waiting period of divorce by this person, she
shall be entitled to custody remuneration.
Article 246:
If the person who is responsible for payment of custody remuneration is insolvent and one of the
relatives of takes the custody gratis, the custodier has the option to accept the custody pro bono or
leave the custody to the person who accepts the custody gratis.
Article 247:
If the person who is responsible for payment of custody remuneration is wealthy and if child owns
property as well, the child shall be delivered to mother in exchange for a customary remuneration,
even if this remuneration is paid from the child’s property.
Article 248:
If wife becomes disobedient while child is over 5 years old, the court may deliver child to any of the
parents whose custody is more to the interest of the child.
Article 249:
Period of custody of son ends with 7 years of age and that of daughter finishes with 9 years of age.
Article 250:
Court may renew the period of custody stated in Article (249) of this Law, provided that the renewed
period does not exceed two years.
Article 251:
If it is proved that the person who has custody of the child, even if he is the child’s father, shall not
result in the interest of the child, the court may deliver the child to the second person entitled to
custody, in the priority list, for care and nurture.
Article 252:
As long as mother is married or in waiting period, she may not take child for a trip without the father’s
permission.
Article 253:
Custodier other than the mother may not take the child for a trip without the guardian’s permission.
Article 254:
During the custody period, father of the child may not take the child for a trip without the custodier’s
permission.
Article 255:
Alimony of a woman who does not have husband and is not able to maintain her living herself shall be
paid by her forbidden guardian (the guardian who is prohibited to marry her) as long as the woman
lives in the residence of the mentioned forbidden guardian.