The Role of Alternative Legal Systems in Child Custody Questions

 Posted on August 24, 2015 in Child Custody

While United States law is supreme within our borders, this does not preclude other systems of law from having an effect on how people raise their children and where those children may want to live in the event of divorce or the loss of a parent (or both). Legal systems such as those adopted by religions or ethnic groups still play an extremely important role in many lives, and in some cases, it is possible to integrate certain provisions into a determination of child custody.

Islamic Law and Child Custody

Islamic law is heavily paternalistic, at least in regards to family law matters, and the preferable custody arrangement in many Muslim divorces is to have the children stay with their mother until they reach the age of “custodial transfer” (which varies between families, but is generally around the Islamic age of maturity—teenage years) and then return to their father’s family.

If the mother is deceased, the next female relative in line will assume the duty—often the grandmother or aunt. The female line generally holds the right of hidana, or “care and education,” and thus, the mother is usually granted physical custody in order to perform those obligations for her children. A secular court will often grant physical custody to the mother, but make clear to the parents that under Illinois law, a custody arrangement must be modified in the courts before the child’s living arrangements can change fundamentally. If the parents are willing to do so via the secular courts, shari’ah preferences may be upheld.

While there are restrictions, there are also benefits. Islamic law does mandate that the non-custodial parent (again, most often the father, though there are exceptions) has the right to visit their child at least once a week unless it is deemed not in the child’s interest by a judge. Muslim custodial parents are not permitted to deny visitation of their own volition. It also urges that a child respect their parents and obey their wishes, but credence is still given to a child’s preferences; it is simply not the deciding factor in making decisions that may affect them. A secular court will often comply with this wish, granting visitation in all but the most extreme cases where a parent can be shown to be a danger to the child’s physical, emotional or mental health.

Native American Law

The other body of law that can very often play a role in child custody determinations in today’s United States is Native American law, most specifically the Indian Child Welfare Act (ICWA). The ICWA was enacted in 1978 and applies to all child custody proceedings regarding Native American children. It was passed into law primarily due to the overwhelming numbers of Native American children being removed from their homes and adopted by non-Native families. The ICWA grants jurisdiction to Native American courts on certain matters in child custody, such as whether or not a child is a member of the relevant tribe.

The ICWA applies to four types of proceedings: foster, pre-adoption, adoption, and termination of parental rights. Children held to have faced abuse, or children whose parents are found unfit by a family court judge, may fall under the jurisdiction of this law and of Native tribal courts as well—indeed, the case as a whole may be moved to tribal courts if the child meets certain requirements (for example, growing up on a Native American reservation). Native law is somewhat unique in that it is permitted in rare circumstances to trump federal law, which would normally contravene the Supremacy Clause of the Constitution.

Seek Professional Assistance

If you are in a position where you are confused about the interplay of ethnic, religious and secular law, it is best to engage the services of a competent attorney. The dedicated DuPage County child custody attorneys at our firm will be able to advise you about secular law and its effects, and work hard to achieve a favorable result for all involved. Contact us today for a free initial consultation.