Abstract:

This study examines the disparity in judges’ considerations in determining child custody for children who have not yet reached mumayyiz age, through a case study of Decision of the Yogyakarta Islamic Court No. 348/Pdt.G/2021/PA.YK and Decision of the Jepara Islamic Court No. 1492/Pdt.G/2021/PA.Jepr. The primary focus lies in analyzing the reasons and legal foundations underlying the divergent rulings. The findings indicate that the Jepara Islamic Court’s decision tends to adopt a legal realism approach, prioritizing factual conditions and the best interests of the child even when they diverge from normative legal provisions. Meanwhile, the Yogyakarta Islamic Court’s decision seeks to balance normative legal rules with factual considerations in a more proportional manner.