REKONSTRUKSI PERLINDUNGAN HUKUM ANAK DALAM PENGASUHAN NONMUSLIM PASCA KONVERSI ORANG TUA KE ISLAM

Abstract

Legal protection for children constitutes a fundamental aspect of the Indonesian
legal system, particularly in the context of interfaith child custody following a
parent’s conversion to Islam. This study aims to analyze the construction of legal
protection for children from the perspectives of national law and Islamic law, as well
as to examine the potential normative conflicts between the two. This research is a
normative legal study employing statutory and conceptual approaches, utilizing
primary legal materials in the form of Law Number 35 of 2014 concerning Child
Protection and the Compilation of Islamic Law, as well as secondary legal materials
consisting of legal literature and expert doctrines. The findings indicate that
Indonesian national law emphasizes the principle of the best interests of the child as
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the primary basis for determining child custody rights, without explicitly making
religion a determining factor. Meanwhile, Islamic law, through the concept of
hadhanah, places the protection of faith (aqidah) and moral development as the
main considerations in child custody. These differing approaches give rise to
normative conflicts in practice, particularly in cases involving custody by non-Muslim
parents after one parent converts to Islam. Therefore, a reconstruction of child legal
protection that is integrative in nature is required by combining the principle of the
best interests of the child with the protection of religious aspects as part of the child’s
fundamental rights. This approach is expected to create a more comprehensive legal
protection system, provide legal certainty, and ensure the fulfillment of children’s
rights in a holistic manner, encompassing physical, psychological, and spiritual
aspects.