The Distance Restriction in Granting Custody between the Best Interest of the Child and the Rights of the Parents

Abstract

The Algerian Family Law stipulates that custody is granted to one of the spouses after the dissolution of the marital bond, while the other party is granted visitation rights. However, the implementation of these rights raises several issues that hinder the child from fully enjoying their rights to care, supervision, and balanced upbringing. Moreover, it often renders visitation rights ineffective and deprives one parent of natural communication with the child. Custody rights, along with the corresponding visitation rights, are subject to several conditions that must be respected to ensure the child’s best interest is protected and to maintain a balance between the rights of both parents. For various reasons, these rights may be limited or their implementation obstructed. This has led Islamic jurisprudence and judicial practice to adopt a set of principles and regulations to safeguard these rights, among which is the principle of the "distance restriction." This article aims to shed light on this overlooked aspect in legal rulings and judicial decisions, despite the many problems arising from its neglect and the existence of decisive court rulings on the matter, which ultimately affect both the child and the parents’ rights.