"A Commentary on Article (39) of the Libyan Marriage and Divorce Law No. (10) of 1984, as Amended by Law No. 22 of 1991, Regarding the Forfeiture of the Mother's Right to Custody in Cases of Divorce Due to Harm and Marital Discord."

Given the significance and role of custody in safeguarding the child, religious laws and legal systems have devoted considerable attention and established specific provisions to ensure the child's right to proper care. This includes Law No. (10) of 1984 concerning the provisions of marriage and divorce in Libya, which regulates custody in Chapter Six, Articles (62 to 70). The Libyan legislator aligned with the consensus of Islamic jurists that custody rulings should primarily serve the best interests of the child. However, amendments introduced by Law No. (22) of 1991 deviated from this principle by stipulating the forfeiture of the mother's custody as a consequence of divorce due to harm or misconduct without considering the potential harm to the child This study examines the provisions of custody in Islamic law, compares them with these amendments, and analyses the relevant texts to develop a framework that ensures the child's custody rights. The research is divided into two parts: Introduction: Discusses the right of custody. Analysis: Examines the forfeiture of the mother’s custody in cases of divorce due to harm, as stipulated by Article (39) of Law No. (22) of 1991 amending Law No. (10) of 1984.The research reached several conclusions, most notably: Custody is a shared right involving the child, the custodian, the father or guardian, and society. When these rights can be reconciled, they should be upheld; however, if they conflict, the child’s right should take precedence. The law lacks clarity in determining the rightful custodian and was unsuccessful in including custody as one of the rights lost by the wife in cases of divorce due to harm. The study recommends that the Libyan legislator adopt a clear provision that prioritizes the child's best interest over any other considerations and abolishes conflicting provisions, particularly paragraph (A) of Article (39) as amended by Law No. (22) of 1991, which stipulates the forfeiture of custody if the divorce is due to harm caused by the wife to the husband, whether financial or moral.