Impact of Insanity and Marriage of Mother on Child Custody in Iranian Law: A Comparative Study with American Law

One of the protective institutions for the child in Iranian Law is custody. In Iranian Civil Code, in articles regarding custody commenced with "on caring and upbringing of the child, Article 1168 provides: "Childcare is both the right and the duty of Abūin." It can be understood from this Article that the legislator has protected the right to custody of parents toward the child equally. However, the way in which some of the legal material is formulated instills doubt into one's mind as to the legislator's maximum protection of the custody of the father. One of these statutory provisions is Article 1170 of the Civil Code concerning the madness and maternal marriage and its impact on the custody of the child in which madness and marriage of mother are considered as barriers to custody. In this paper, with adopting the accepted view in Iranian law based on which the purpose of the legislation on the issues regarding law of the family is preserving the foundation of the family and taking into account the high interests of the child, through a comparative study of the subject in American law, the impact of madness and the mother's marriage on her right to custody to the child will be addressed. In the case of maternal insanity, after considering the legal material, it was concluded that the insanity of each of Abūin caused barrier to custody due to his/her inability to take care of himself/herself and a fortiori the child's care. Concerning the impediment of maternal marriage for his custody, the result is that the use of such a ground is not justified.