..::Custody of children after Divorce in Islam

..posted by Pakistani Law Firm…Get Free Legal Advice

Question: I’m confused about something and would like to know the answer. I read a part of something, that wasn’t explained and it upset me and I need clarification. If a married couple divorce who have children, and the wife takes custody of the children, if she gets remarried, she has to give up custody of her children to the father? If this is true then why? This doesn’t sound fair as it encourages divorced women to not get married again, and we all know it can be hard for women being single. What if the father gets remarried? Should the children be raised by the stepmother instead of the real mother? I thought Islam regarded mothers very highly and I know they have priority in custody situations. Is there something wrong in Islam with stepfathers? If a Kafir man leaves his child, and the woman later converts to Islam and the child who didn’t know his Kafir father is then raised by a Muslim stepfather, will the stepfather get reward for this? Sorry to ask a lot of questions but this whole topic has been bothering me.

Answer

Praise be to Allah, the Lord of the Worlds; and may His blessings and peace be upon our Prophet Muhammad and upon all his Family and Companions.

Abu Dawood narrated in his Sunan, and so did Al Imam Ahmad in his Musnad, as others from Hadith of Amr Bin Shuaib from his father from his grandfather Abdullah Bin Amr Bin Al Aas that a woman said to the Prophet (Sallallahu Alaihi wa Sallam): ‘(You see) this son of mine, for him my stomach was a vessel, my breasts were (his) irrigators, my lab was (his) container, and his father divorced me and wants to seize him away from me’. And the Prophet (Sallallahu Alaihi wa Sallam) said to her: You are more deserving than him until you marry.  That Hadith is a base that mothers deserve more than the fathers for nursing their children, unless there is an occurrence that forbids mothers to have this right; and this (rule) is indisputable, as Abu Baker Al Siddiq (Radiya Allahu Anhu) has adjugated accordingly and nobody has detested; and as also adjugated by Umar (Radiya Allahu Anhu) in his ruling era. The mothers are preferred than fathers because the women better in nursing (children), more capable, more patient, kinder, and had more time (for this type of job) than men. As per the question of inquirer: If she gets married, she has to give up custody of her children to the father. Why? This does not sound fair….etc. The answer is that: Mother’s rights for custody is waved by marriage according to the judgement of the Prophet (Sallallahu Alaihi wa Sallam). Since the Prophet (Sallallahu Alaihi wa Sallam) neither spoke as he pleased, nor was he ever oppressive in his Judgement so his Judgement can never be unfair? And how can a Muslim say such words as if objecting to the Prophets teachings’? And if the mother gets married, the custody (of children) is not transferred to the father, as told by the inquirer. One could say: is it suitable that children be raised with the wife of their father instead off their mother!! If the right for custody of the mother is waved by marriage or by any other reason that dropout mother’s rights for custody, then custody will be transferred to the women from mother’s side, this is the statement of the three Imams and one of Ahmad‘s two sayings. – In Al-Hanafiyah: The priority is given to the mother, then follows the mother’s mother, after that the father’s mother, then the sisters: sister from mother and father, then maternal sister, then paternal; then the maternal aunt, then paternal aunt. – In Al-Malikiyah: The priority is given to the mother, then the mother’s mother, then the maternal aunt, then the father’s mother then the latter’s mother then the sister, then paternal aunt, then the niece. – In Al-Shafiyah: The priority given to mother, then the mother’s mother, then it is transferred to those who inherit of her mothers, then the sister, then maternity aunt, then paternity aunt. – In Al-Hanabilah: The priority is for mother, then her mothers. So you can see that priority is given more to the women from the mother’s side than the father himself as well as women from paternal side. As per her inquiry: Should the children be raised by the stepmother instead of the real mother? We say: Is it (then) suitable that children be raised by the stepfather instead of the real father? There should be no interference to this with our intelligence rather we must refer back to the law (Al Shariah). It is also suitable that we inform the inquirer that custody of children is not waved by marriage only, but rejected also by many other cases, such as: Dissolute person, disbelief, a slave will not have the right for custody of children; as custody is only for children who are less than seven years of age. If the male child reaches seven years of age, he will be asked to choose between his father and mother, and he will stay with whichever he chooses; but the female child will stay with her father after she reaches seven years of age. This is the Doctrine of Al-Hanabilah. As for her last question: will that person be rewarded for that? The answer is: Yes, Insha Allah. If that husband raises the child of his wife in good manner, and treats him/her well for the Sake of Allah, he will be rewarded; as Allah Stated: {But he who works deeds of righteousness, and has Faith, will have no fear of harm nor of any curtailment (of what is his due).}[20:112]. And He Says: {So whosoever does good equal to the weight of an atom (or a small ant) shall see it.}[99:7].

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