..::Custody of Male Child of 7 years in Islam

As salamu `alaykum    I have been married for 8 years and I have a beautiful 6-year-old son, but sadly I have been separated from my husband for almost 5 years because of his compulsive gambling, lying and other abuses. I thought he would change for the better by now, but instead (I am 80% sure) that he has settled down with a Scottish girl, and  they may have a 2-year-old child.   In the beginning, he used to phone me regularly telling me that he has changed. I asked for evidence of this (e.g. maintenance for our son), because he never provided any financial support, but he would say that I have to believe him,a nd spoke to me unkindly.   Now, he doesn’t ring me at all. I am so frustrated and tired of waiting for him to change his ways that I am now considering divorce as a final option. He has been so callous – torturing me mentally for almost 5 years.   I am very worried  about the fact that in Islam, after the age of 7 is considered to be in better hands with its father. In my case, I disagree, because he has not taken any responsibility for our son, or taken any part in his life or upbringing. I truly have been his mother and father 24/7. Is this true, and can he do this to me and my son? Please give any guidance you can to help my situation. Thank you in advance.

Answer

As salamu ‘alaykum wa rahmatujllahi wa barakatuh

It is a sad day when parents do not take up the responsibility for the children that they bring into the world. Al hamdu lillah, it is fortunate my sister, that as the mother, despite the years of suffering that you have been through, that you have the fortitude to do your best in raising your child, as mother, but only a man can provide the role of father who acts as a role model from whom your daughter would learn how to relate to men, through the father’s presence in her life.

When husband and wife separate, one of the misfortunes of contemporary life, is that they are less likely to com together again after resolving differences. All the step of the way, Islam, provides the opportunity for husband and wife to come back together amicably. Even through the ‘iddah, waiting period of 3 menstrual cycles after divorce), Islam considers to be a cooling off period for both spouses. Bother husband and wife are to re-think their role in their marriage, and are encouraged to be together in order to allow for amicable communication, so that they can regain what they had lost. As a wife and a mother, you are entitled to financial support throughout married life, throughout ‘iddah, the waiting period after divorce, and financial support of the child.

Alas, your husband for whatever reason, feels incapable of fulfilling his responsibility to you, your child and the marriage, and it would seem (without evidence), that your husband has gone for the easier option of living/marrying another. Despite what many think, some husbands, do not take failure in marriage comfortably, and within that type of husband, some find it easier to begin anew.

Islamic scholar Jamal Badawi states:

“Priority for custody of young children (up to the age of about seven) is given to the mother. A child later chooses between his mother and father (for custody purposes). Custody questions are to be settled in a manner that balances the interests of both parents and well-being of the child”.

Note, for the purpose of custody. What has to be remembered, is that Islam ensures the right of both mother and father to the child. From conception to fostering, the rights of the natal parents is emphasized, allowing for the child their birth right, and that is the right to know both their parents.

“…and be careful of (your duty to) Allah, by Whom you demand one of another (your rights), and (to) the ties of relationship; surely Allah ever watches over you” (An-Nisa 4: 1)

Ity may seem unfair, but the unfairness is only in the interpretation of Islam, which might not be carried out in the spirit of Islam. The following ahadith guides us further and informs us:

A woman asked Prophet Muhammad ‘O Apostle of God, I am the one who carried my son in my womb, and gave him protection on my lap and I suckled him with my breasts, and now his father wants to take him away from me’. Then The Apostle said, ‘You have greater right over him, so long that you do not remarry’.” (Abu Dawud 12: 2269)

Again, this is to ensure the right of the father. If you were to re-marry, what an awkward situation it would, if your former husband, were to continue in obvious ways that would undermine the rights of your second husband.

For the sake of custody, should not be interpreted as the right to prevent the mother or the father from fulfilling their responsibility, so as long as the child lives with one parent, the other parent has the right to play a positive role in the life of their growing child. Likewise, the father might have custody, but it is considered int the best interest of the child, that the child stays with the mother.

“…. No soul should have imposed upon it a duty, but to the extent of its capacity; neither shall a mother be made to suffer harm on account of her child, and a father on account of his child, and a similar duty (devolves) on the (father’s) heir…” ( Al Baqarah 2: 233)

Dear sister, while you are considering divorce, consider the facts of your husbands situation, and not what you surmise. It could be that he wants to find his way back into your marriage, but you may have made the road to your marriage, more difficult than he is able to handle, and it could be, that he does not want to be reminded of his weaknesses.

 

2 comments on “..::Custody of Male Child of 7 years in Islam

  1. Assalam o Alikum.
    My question is that my sister married a person who went to Dubai after marriage with his wife.In Dubai a son was born and after birth of son my sister came to know that her husband was already married and he has also children from his previous wife but he did not tell us before his marriage.My sister told us that the attitude of her husband began to change after this.when they came to Pakistan her husband never give any money to his wife and his son as maintenance and ignore this whole situation.My sister also told us that many phone calls come from unknown females to her husband and my sister try her best to settle all disputes but her husband did not change himself. Her husband leaft my sister and never came to see his son.From that time she is with me and my family.So according to situation we took khula from court and after khula he never come to see his son and never give any money for nourishment of his son.He has no interest in his son.Now the age of son is about 5 years.In this whole condition her ex husband forward an application to court that the custody of son should be given to him.
    Court has not decided yet about the custody of child.Now my sister want to remarry to another person who is living in middle east.
    So tell me considering the above situation if court decided and give the custody of son to my sister,Is it possible that my sister and his son after marriage will go to middle east to start their new life?
    Is the son of my sister can get visa easily or not?As his passport and birth certificate show the father name of my sister ex husband.Is ex husband can move any new application against my sister or her new husband after the decision of court in favour of my sister?
    Kindly tell us a very suitable answer we are very worried about it.we will be highly obliged to you for this act of kindness.

    Like

    • The custody case is pending so your sister have to take the permission of the court before removing the minor abroad

      Like

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