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Question: Is it permissible for a Muslim woman who has been divorced and subsequently remarries to file for the custody of her child from her ex-husband, who is also Muslim, in a secular court of law?
Answered by: Sheikh Mûhammad al-Ghâmidî, professor at King Khâlid University… Taking such disputes before a secular court of law is something prohibited in Islam. Allah says: “But no by thy Lord, they can have no (true) faith until they make you judge in all disputes between them and find in their souls no resistance against your decisions but accept them with the fullest conviction.”
The husband and wife should fear Allah and not force each other to take their disputes before the courts which rule by such laws. They should, instead, refer any dispute between them to those who possess Islamic legal knowledge, since the custody of children is something quite clear and well known in Islamic law.
In Islamic Law, the custody of the infant is a woman’s right unless she gets married or until the child reaches seven years of age. A woman said to the Prophet (peace be upon him): “This son of mine – my womb carried him, my breast fed him and my lap was a bed for him. Now his father has divorced me and wants to take him away from me. The Prophet (peace be upon him) said: “You have the priority to take him unless you get remarried.” [Musnad Ahmad, Sunan Abî Dâwûd, and Mustadrak al-Hâkim].
If the woman gets remarried and the father disputes with her over custody, then the right for custody transfers to the woman’s mother unless she is not legally fit to fulfill the duty. If she is not fit, then and only then will custody transfer to the father.
When the male child reaches seven years of age, he gets to choose between staying with his mother or his father. He will go with whomever he wants to.
A woman came to the Prophet (peace be upon him) and said: “My husband wants to take my son away from me.”
The Prophet (peace be upon him) said to the child: “This is your father and this your mother, so take the hand of whom you like.” The boy took the hand of his mother and they went together. [Sunan al-Tirmidhî]
This hadîth shows that when the boy is old enough to make such a decision, he can be given the choice between his two parents, provided that neither of them forbids the other from seeing the boy. However, he will not be given to anyone who cannot protect and safeguard him.
On the other hand, when a female child becomes seven years old, she stays with her father until she gets married. If the father cannot handle the responsibility of the girl or he neglects her, or if he is a man of bad character, then the mother will take charge and have custody of the daughter.
In brief, this mother has no right for custody because she has remarried, on account of the hadîth I have already mentioned. The custody of this child will be transferred to other guardians in the order that I have mentioned.