Jurisprudential–Legal Analysis of the Child’s Right to Visitation with Relatives

Abstract

The issue of a child’s right to maintain contact and visitation with relatives, particularly after parental separation, constitutes one of the significant and practical concerns in Islamic jurisprudence and family law. This right not only affects the emotional relationship between the child and extended family members but is also inextricably linked to the child’s educational, psychological, and developmental interests. In Imamiyyah jurisprudence, early jurists, relying on the Qur’an, the Sunnah, and fundamental jurisprudential principles, have established strong theoretical foundations for this right. The child’s interaction with relatives plays a fundamental role in his or her emotional, social, and identity development. Despite this, the Iranian legal system regarding the child’s right of visitation with relatives other than the parents—especially in cases where both parents are alive and present—suffers from a significant legislative gap, which has led to ambiguity and inconsistency in judicial practice. This research, aiming to analyze this legislative gap and to examine the capacity of Imamiyyah jurisprudence to address it, has been conducted using a descriptive–analytical method and relying on authoritative jurisprudential and legal sources. The findings indicate that both classical and contemporary jurists affirm the legitimacy of this relationship, and despite the silence or restrictive nature of statutory texts—particularly Article 1174 of the Iranian Civil Code—the major jurisprudential rules and principles, including the best interest of the child (ghibṭat al-ṣaghīr), the obligation of maintaining kinship ties (ṣilat al-raḥim), the rule of “no harm” (qāʿidat lā ḍarar), with emphasis on non-material and moral harm, and the rule of “no undue hardship” (qāʿidat lā ḥaraj), provide robust theoretical and argumentative grounds for recognizing and guaranteeing the child’s right to visitation with blood relatives. These principles emphasize prioritizing the child’s emotional needs, preserving family bonds, and removing any unjustified harm or hardship resulting from the severance of such relationships. The ultimate conclusion is that the existing legislative gap can be remedied through reliance on these rich jurisprudential foundations, and it is necessary that courts, by adopting an active and principled interpretation, or more fundamentally, the legislature through explicit statutory reform, take effective measures to secure this important right for children.