..posted by Pakistani Law Firm…Free Legal Advice
QUESTION: I would be most grateful if the Islamic view of custody of children (following the separation/divorce of parents) was explained to me in detail. From my own enquiries, I have been told that the woman retains custody of the children (regardless whether male or female) until the age when Islamic acts and duties become “fard” upon the children? (I take this to mean, 7yrs for males and 9yrs for females? please excuse any errors in the ages stated). My second query is, if the woman remarried (not to the same man, but another) does this have any bearing upon the custody of children i.e. does the father (biological) gain automatic custody of the children regardless of what age the children are?
In the name of Allah Most Gracious Most Merciful
The Custody of Children in detail.
1. The husband and wife have been separated, divorce has taken place and they have a small baby. The mother of the child has the right of custody over the child. The father cannot take this child away. However, the father will have to pay for all the expenses that will be borne in order to bring up the child. If the mother does not take the child, and instead, gives it to the father, he will have to take it. The mother cannot be forced to keep the child.
2. If there is no mother or she refuses to take the child, the maternal grandmother and then the maternal great grandmother have the right of custody. Thereafter, the paternal grandmother or great grandmother will have the right of custody. If they are not present, the blood sisters of the child have the right of custody. If they are not present, then the stepsisters. However, as regards stepsisters, those who are from the same mother will be given preference over those who are from the same father. Thereafter, the child’s maternal aunts and then the paternal aunts.
3. If the mother marries a person who is not a mahram [marriageable kin] relative of the child, i.e. this relative is such that nikâh [Ar. of the child] with him is not harâm forever, then the mother forfeits the right of custody over the child. However, if the woman marries a mahram relative of this child, and this relative is such that nikâh with him is not valid (for the child), e.g. she marries the child’s paternal uncle or any other similar relative, then the mother’s right of custody remains. In the absence of the mother, if any other woman such as the child’s sister, maternal aunt, etc. marries a ghayr mahram man (i.e. to the child), the same rule will also apply. That is, the right of custody over the child no longer remains with this woman.
4. The right of custody over the child had been forfeited on account of the woman marrying a ghayr mahram (of the child). Thereafter, this man divorced her or he passed away. The right of custody will return to this woman and the child will be handed over to her.
[Ar. Other aspects which forfeit the rights of custody from a person are: a. Marriage to a marriageable kin of the child (as detailed above)
b. Demanding payment for looking after the child in the case that another non-marriageable kin can be found who would to take up the custody for free.
c. having to leave the home frequently for employment or the like in a way that the safety of the child is compromised. d. Being involved in any blameworthy or sinful act that would compromise the safety of the child. e. If a custodian is involved in vile and sinful acts but the safety and welfare of the child is not compromised then it would be permissible to leave the child in their custody until an age where the child cannot become influenced by those acts. Thereafter, the custody has to be transferred. f. If the custodian (mother or grandmother, etc.) happen to be non-Muslim, the child can still be kept in their custody until a discerning age i.e. until the child cannot be influenced towards the other faith. Thereafter, the custody will be transferred. (A child is considered Muslim if any one of the parents happens to be Muslim due to the fiqhi principle: “The child follows the better of the parents in faith”).]
5. If, from among the relatives of the child, no woman can be found in order to take custody of the child, the father will be the most eligible for custody. Thereafter, the paternal grandfather will be the most eligible, and thereafter the same order that we had mentioned in the chapter on the walî (or guardian) at the time of nikâh, will be followed. However, if the relative is a ghayr mahram and there is some fear over the safety of the child in the future, then in such a case the child will be given to someone who is reliable and trustworthy.
6. The right of custody over the child remains as long as the child does not reach the age of seven. Once the child reaches the age of seven, the father can take the child forcefully if he wishes to do so. The right of custody over a girl remains until she reaches nine years of age. Once she turns nine, the father can take her and the mother does not have the right to prevent her from going. [Most of the above has been taken from the Heavenly Ornaments with slight editing and additional notes from the Radd al-Muhtar2:633-634 and Ahsan al-Fatawa]
Wassalam Abdurrahman ibn Yusuf