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Indeterminacy of the Best Interest of the Child and Shari’a Rules in Custody Adjudications: Egypt Case
This thesis argues the rigidity of custody adjudications in the Egyptian Law owing to the indeterminate legal terms and Islamic rules that guide the decision-making process of custody cases. It also proposes reconsideration of the best interest principle’s guiding criteria and custody Shari’a presum...
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| Format: | Thesis |
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AUC Knowledge Fountain
2021
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| Summary: | This thesis argues the rigidity of custody adjudications in the Egyptian Law owing to the indeterminate legal terms and Islamic rules that guide the decision-making process of custody cases. It also proposes reconsideration of the best interest principle’s guiding criteria and custody Shari’a presumptive rules in light of the subjective interpretation of the judges in custody related matters. The principle of best interest (BI) which is the prevailing guiding criterion in regulating all matters related to children, particularly in custody-related decisions. Even though the principle has been present in international law at the beginning of the 20th century, there is no consensus on its definition and the term itself is ambiguous. The definition is highly contested with regards to governing custody settings or arrangements. While in Muslim and Arab countries, Shari’a presumptive rules guide the current legal reasoning particularly in custody after marriage dissolution. I argue that these rules require a scrutiny of the requirement of its application in the custody decision making process. I take Egypt as a model showing the limited transformation in custody rules. Finally, I reflect on some legal practices in custody adjudications in Australia and Tunisia to explore the best practices beyond the best interest and Islamic rules, introducing a reform proposal to illuminate a tangible path toward reform of custody legislation in Egypt in light of the indeterminacy of legal terminology and the presumption of Shari'a. |
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