The Impact of Parents’ Dangerous Contagious Diseases on Child Custody and Guardianship
Subject Areas : فقه و حقوق اسلامی
1 - 1 Department of Law, Faculty of Law, Islamic Azad University, North Tehran Branch, Tehran, Iran
Keywords: dangerous contagious disease, parents, custody, guardianship, child,
Abstract :
The role of the family in the custody and guardianship of children is undeniable. At times, the foundations of a family weaken due to various causes and eventually collapse, resulting in a loss of functionality and stability. In such circumstances, the issue of child custody becomes one of the most important and sensitive matters requiring legal and ethical attention. Generally, considering the welfare and best interests of the child, the health of society, and the duty-oriented approach to custody, the obligation of parental custody may be removed when a parent suffers from dangerous contagious diseases, based on the legal maxim of lā ḍarar (no harm). However, given the rights-based nature of custody and the broad scope of altruistic principles (iʾthār), it may not always be possible to rule that it is categorically forbidden for such parents to care for their children. Instead, custody may be temporarily withdrawn and transferred to another qualified individual who is capable of providing proper care and upbringing. The present study seeks to answer the central question: how do dangerous contagious diseases affect child custody and guardianship? Using a descriptive–analytical method and library-based research, the study proposes the hypothesis that under Iranian law, contagious disease can serve as a legal obstacle to custody. The findings show that custody inherently requires direct contact, visitation, and close interaction with the child—requirements that are undoubtedly hindered in cases involving serious contagious diseases. Therefore, in certain cases, revoking custody is justifiable. However, with respect to legal guardianship (sarparasti), which typically involves less direct physical contact, dangerous contagious diseases generally do not constitute sufficient grounds for removal of guardianship or parental authority.