Iraqi lawyers decline custody removal cases in Baghdad
Shafaq News- Baghdad
A number of Iraqi lawyers are refusing to take on cases seeking to strip mothers of child custody, as legal and rights objections continue over custody provisions in the Jaafari Code, a body of Shiite jurisprudence now applicable to personal status matters in Iraq.
Iraq's Personal Status Law No. 188 of 1959 governs marriage, divorce, custody, and inheritance through personal status courts. It applies a single unified framework to all Iraqis without sectarian distinction, and has been amended repeatedly since, most notably Article 57 on custody, which remains contested over how it balances parental rights against the interests of the child. In January 2025, the Iraqi Council of Representatives voted on a package of amendments that included the Personal Status Law. The amendments allow citizens to opt for the rulings of Islamic schools of jurisprudence in personal status cases, including the application of the Jaafari Code to marriage, divorce, and custody. The chosen school is designated either at the signing of the marriage contract or through a subsequent request to the competent court. The vote drew political and rights-based objections centered on the prospect of multiple legal frameworks operating within a single family.
Hussein Adel al-Shammari, a lawyer practicing in Baghdad, told Shafaq News that a child in its earliest years is “most in need of its mother and her care,” while the father remains a primary partner in upbringing, financial support, and emotional support.
The law already provides mechanisms protecting paternal rights, he said, including visitation, accompaniment, and guaranteed maintenance payments, which in his view makes the removal of custody from a mother something other than a routine procedure. “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 the child directly, and ordering a social investigation where required. “Custody can be transferred to the father or to a relative if either parent is found unfit.”
Israa al-Khafaji, a lawyer, described the removal of custody from a mother as “an unjust decision,” telling Shafaq News that separating a mother from her children damages the stability of both the family and the child.
Tayba Ali, another lawyer, told Shafaq News that a portion of custody removal suits are tied to the settling of scores between spouses after divorce rather than to the child's interest. “Some fathers use custody proceedings as leverage against the mother or to distance her from the children while others seek custody to shed the financial obligations of child maintenance.”
Decision 93, which governs custody provisions under the Jaafari Code, has drawn broad objections from civil society organizations and bodies working on women's and children's rights.
Lina Ali, an activist with the Observatory for the Defense of Women's and Children's Rights, said the recent amendments did not resolve existing problems and instead created new ones affecting women and children together. The code gave insufficient weight to the child's interest, she said, with effects now surfacing in rising family disputes and psychological pressure on children separated from their mothers. “Many mothers are now going to court seeking only visitation rights after losing custody.”
Sheikh Abdul Wahab al-Shammari, an imam and preacher at a mosque in Baghdad, said Islamic law accounts for a person's welfare at every stage of life and that custody rulings were set according to clear jurisprudential conditions rather than arbitrarily. A personal status judge grants custody to a father only after verifying that the health, educational, and material conditions needed to care for the child are in place, he said, and the judiciary revokes his custody and returns it to the mother if he is found in breach of them.
“Cases of violence, child labor, or children kept out of school reflect the conduct of individual fathers rather than a defect in the law,” al-Shammari said, adding that a mother may petition the court and submit evidence of a father's unfitness to recover custody of her children.
Read more; Iraq's Jaafari code turns citizenship into sect, and women are the test case
