Shafaq News-Baghdad

A number ofIraqi lawyers are refusing to take on cases seeking to strip mothers of childcustody, as legal and rights objections continue over custody provisions in theJaafari Code, a body of Shiite jurisprudence now applicable to personal statusmatters in Iraq.

Iraq'sPersonal Status Law No. 188 of 1959 governs marriage, divorce, custody, andinheritance through personal status courts. It applies a single unifiedframework to all Iraqis without sectarian distinction, and has been amendedrepeatedly since, most notably Article 57 on custody, which remains contestedover how it balances parental rights against the interests of the child. In January 2025, the Iraqi Council of Representatives voted on a package ofamendments that included the Personal Status Law. The amendments allow citizensto opt for the rulings of Islamic schools of jurisprudence in personal statuscases, including the application of the Jaafari Code to marriage, divorce, andcustody. The chosen school is designated either at the signing of the marriagecontract or through a subsequent request to the competent court. The vote drewpolitical and rights-based objections centered on the prospect of multiplelegal frameworks operating within a single family.

Hussein Adelal-Shammari, a lawyer practicing in Baghdad, told Shafaq News that a child inits earliest years is “most in need of its mother and her care,” while thefather remains a primary partner in upbringing, financial support, andemotional support.

The lawalready provides mechanisms protecting paternal rights, he said, includingvisitation, accompaniment, and guaranteed maintenance payments, which in hisview makes the removal of custody from a mother something other than a routineprocedure. “I personally decline to act as counsel in such cases.”

Courts,according to al-Shammari, have sufficient tools to assess a guardian's fitness,including review of living, health, and housing conditions, hearing from thechild directly, and ordering a social investigation where required. “Custodycan be transferred to the father or to a relative if either parent is foundunfit.”

Israaal-Khafaji, a lawyer, described the removal of custody from a mother as “anunjust decision,” telling Shafaq News that separating a mother from herchildren damages the stability of both the family and the child.

Tayba Ali,another lawyer, told Shafaq News that a portion of custody removal suits aretied to the settling of scores between spouses after divorce rather than to thechild's interest. “Some fathers use custody proceedings as leverage against themother or to distance her from the children while others seek custody to shedthe financial obligations of child maintenance.”

Decision 93,which governs custody provisions under the Jaafari Code, has drawn broadobjections from civil society organizations and bodies working on women's andchildren's rights.

Lina Ali, anactivist with the Observatory for the Defense of Women's and Children's Rights,said the recent amendments did not resolve existing problems and insteadcreated new ones affecting women and children together. The code gaveinsufficient weight to the child's interest, she said, with effects nowsurfacing in rising family disputes and psychological pressure on childrenseparated from their mothers. “Many mothers are now going to court seeking onlyvisitation rights after losing custody.”

Sheikh AbdulWahab al-Shammari, an imam and preacher at a mosque in Baghdad, said Islamiclaw accounts for a person's welfare at every stage of life and that custodyrulings were set according to clear jurisprudential conditions rather thanarbitrarily. A personal status judge grants custody to a father only afterverifying that the health, educational, and material conditions needed to carefor the child are in place, he said, and the judiciary revokes his custody andreturns it to the mother if he is found in breach of them.

“Cases ofviolence, child labor, or children kept out of school reflect the conduct ofindividual fathers rather than a defect in the law,” al-Shammari said, addingthat a mother may petition the court and submit evidence of a father'sunfitness to recover custody of her children.

; Iraq's Jaafari code turns citizenship into sect, and women are the test case