Child Custody

Child Custody in Pakistan

Legal Query: Mr. Karamat Ali serving in U.A.E, married with Asifa according to Muslim Rights and Sunah and out of this wedlock a child Mohammad Nouman Karamat born who is 5 years old now and presently in the custody of the Mother.The wife dissolved her marriage against the petitioner on the basis of Khula and subsequently entered into second marriage. The father filed a petition under section 25 of the Guardian and Wards Act for the permanent custody of his minor son. He pleaded that he is entitled to the permanent custody of his minor  on the following grounds:

That after taking the custody of the minor son the mother entered into a second marriage and cohabiting with her second husband.

The minor being real son belongs to the sect of his father, but the step father belongs to other sect which fact may cause serious impact on the social teachings of the minor.

That the mother and the step father both are working professionals and don’t have much time for taking the care of the minor.

That after the divorce mother intentionally not allowing the minor to talk with his father through phone or Skype which stifled the father’s rights to supervise the custody of his son.

That the step father has already another wife and children and such family environment is not beneficial for social well being of the minor.

On the other hand the father is working abroad and financially sound person who can provide high quality of life and environment to his minor son.

That the minor is very attached to his father and father financially supporting  to the minor by sending money every month and visited his son frequently to Pakistan.

That the minor is very much familiar and attached with the extended family of his father in UAE and joining of minor with them will cause very good impact on his social brought up.

That the father has lot of financial resources to provide high quality education to his son in the best schools of foreign country.

The father prayed that by keeping in view the welfare of the minor the mother may be directed to produce the minor in court and the permanent custody of the minor may kindly be handed over to the father. The Guardian Court has issued the notice to wife for production of the minor in court.

legal Advice: According to me the father has very good case for taking the custody of the minor, he should continue to visit and maintain his minor son during the custody litigation.

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Child Custody Litigation in Pakistan

Legal Query: After some matrimonial dispute  Mst. Nazia deserted her children at the home of her husband and gone to her parents’ home. From there she filed a petition of Habeas Corpus under section 491 Criminal Procedure in the court of district and Sessions Judge Lahore, against the father for the recovery of her two minor sons aged 8 and 9 years.

Mr. Imtiaz Aziz contacted and engaged our law firm to defend the petition. The father took the plea that the minors has crossed the age 7 years and attained the age discretion now they need the direction supervision of the father. So the permanent custody of the minors should be handed over to the father.

The learned judge handed over the custody of one younger son to the mother and of the elder son to the father and directed the spouses to approach the guardian court for the permanent custody of the minors.

The father moved a petition under section 25 of the Guardian and Wards Act in the court Guardian Judge Lahore for the permanent custody of the minors on the ground that now the minors needs direct supervision of the father. The father is man of means and providing maintenance his minors since their birth and who can provide good accommodation, tuition, couching and security to their minors. The father is in better position to up-bring their minor sons and the welfare of the minors requires that their permanent custody should be handed over to the father.

Legal Position of the Case: According to me the minors have crossed the age of 7 years and attaining their age of puberty now they need the direct supervision of the father for their education and teaching. The father is man of means and also maintaining his minor sons since their birth. On the other hand the mother has no independent financial resources to maintain her sons. She is totally depending on the maintenance allowance of the father. The mother is residing in her parents’ home and there is no sufficient accommodation to easily keep the minors. Keeing in view the welfare of the minors the Guardian Court will hand over the custody of the minor sons to the father.

..::Law and Procedure of Child Custody in Pakistan

..::Women have more right to custody of children than men

After a marriage that lasted for a few years, a man divorced his wife and tried to take the child from her. She is asking who has more right to custody of the child, her or her ex-husband? Especially since she is going to travel to live with her family in another city.

Women have more right to custody of children than men; in principle custody belongs to them, because they are more compassionate and more kind, and they know better how to raise small children, and they are more patient in dealing with the difficulties involved. The mother has more right to custody of her child, whether it is a boy or a girl, so long as she does not re-marry and so long as she meets the conditions of custody. This is according to scholarly consensus.

The conditions of custody are: being accountable (i.e., an adult of sound mind etc.), being free (as opposed to being a slave), being of good character, being a Muslim if the child concerned is a Muslim, and being able to fulfil all obligations towards the child. The mother should not be married to a person who is a stranger (i.e., not related) to the child. If one of these conditions is not fulfilled and there is an impediment such as insanity or having remarried, etc., the woman forfeits the right to custody, but if that impediment is removed, then the right to custody is restored. But it is best to pay attention to the interests of the child, because his rights come first.

The period of custody lasts until the age of discretion and independence, i.e., until the child is able to discern what is what and is independent in the sense that he can eat by himself, drink by himself, and clean himself after using the toilet, etc.

When the child reaches this age, the period of custody ends, whether the child is a boy or a girl. That is usually at the age of seven or eight.

With regard to the effect of travelling on transferring custody, if the parents have separated and are disputing custody, any of the following scenarios may apply to their travelling:

1 – If one of the parents wants to travel without moving, i.e., he or she intends to come back, then the parent who is staying put has more right to the child.

2 – If one of them wants to travel for the purpose of settling there, and the new city or the route is dangerous, then the parent who is staying put has more right to the child.

3 – If one of them wants to move and settle within the same city, and the city and the route is safe,the father has right to the child than the mother, regardless of whether the one who is moving is the father or the mother.

4 – If both parents want to travel to the same place, then the mother should retain custody.

5 – If the place is nearby so that the father and child may see one another every day, then the mother should retain custody.

When the child reaches the age of independence, the period of custody comes to an end, and the period of kafaalah or sponsorship of the young begins, which lasts until the child reaches adolescence or in the case of a girls, starts her periods. Then the period of sponsorship ends and the child is free to make his own choices.

Women’s rights to sponsor children. It appears from the comments of the fuqaha’ that women have the right to sponsor children in general, and that mothers and grandmothers in particular have this right.  But the scholars differed as to who has more right to sponsorship if the parents are in dispute and are both qualified to sponsor the child. The Maalikis and Zaahiris think that the mother has more right to sponsorship of the child, whether it is a boy or a girl. The Hanbalis think that boys should be given a choice, but the father has more right in the case of a girl. The Hanafis think that the father has more right in the case of a boy and the mother has more right in the case of a girl. Perhaps the correct view is that the child should be given a choice if the parents are disputing and they both fulfil the conditions for sponsorship.

From Wilaayat al-Mar’ah fi’l-Fiqh al-Islami, p. 692

..::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.

 

..::Custody of Children in Islam..father's and mother's rights

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

My husband left me and our baby son because he said he came to this country to work not for family life.(basically, ive used u and have no need for u anymore). for 4 yrs he never once tried to see his son, at one point my son had a meningitis scare and i called him, he said he was coming but never did. i forced him to pay for our son through the csa as he was refusing too. in the 5th year, he divorced me ,went back home and got married to his first cousin.he is now back in the uk and wife is still back home. he got hold of my number about 6months ago and started harrassing me and talking to me like he was still my husband, he started following me around, saying he still wanted me back etc! i could not believe,that this man i thought was a good muslim was talking like this, he left us, he divorced me ,he got married again and yet somehow he said it was all my fault (even his 2nd marriage is my fault apparently), anyway,cut a long story short, because i spurned his advances and contacted the police to stop him,he is now dragging me through the courts for access to our son,out of feeling rejected. i know he is not interested in our son and is only doing this cos i spurned his advances, im really scared about going court ,as i will have to pay etc and i have a solicitor but i am so frightened about all this. my question is,wat does islam say about what he is doing,am i wrong in stopping him seeing his son,even though he beat the hell out his baby son and me,when we were married and for 5yrs (my son is 5yrs now marshallah) has shown no interest in his son? i dont know what to do,i dont want to do anything wrong islamically but want to do what is right for my son at the same time ,which is, no contact with his father ,as he is violent and has shown no interset in him ever and now is using him as a weapon to get to me. even though he has done all this,do i islamically have a right to try and stop him getting access,he is not morally or islamically even a good role model for his son.

Praise be to Allaah.Undoubtedly what you mention about this man indicates that he does not represent a good example to his son of good character and religious commitment, and he is not qualified to have custody of the child and raise him. But this does not mean that he does not have the right to see him and check on him from time to time. Similarly, the son’s duty to honour him and treat him kindly is not waived.The fact that the father is falling short and negligent, or he is an unjust wrongdoer, does not mean that the son should forsake him and ignore him, or that we should encourage him to do that, because the father’s rightsare great, as are the mother’s rights.The fuqaha’ stated that it is the father’s right to see his child if the child is in the mother’s custody, and that he should not be prevented from visiting him. But they differed as to the time frame within which he should visit him. The Hanbalis referred the matter to custom (al-‘urf), such as visiting him once a week. The fuqaha’ pointed out that after divorce, the husband becomes a stranger or non-mahram to his ex-wife, so attention must be paid to that. If he visits the child in his mother’s house, he should not stay for too long, and it is essential that he should not be alone with his ex-wife. She may prevent him from entering her house, but she should bring the child out to see him.

If the child falls sick, the father should not be prevented from visiting him. Thus each person should be given their due rights.

Al-Mawsoo’ah al-Fiqhiyyah (17/317); al-Mughni (8/193).

You should try to understand this matter, and not strive to separate the boy from his father, or fill the boy with resentment and hatred. In addition to being haraam, this is also harmful to the child’s psychology, character and behaviour.

If you are afraid that the child may be influenced by some of his father’s bad attitudes, this may be remedied by raising him well and directing him properly, without speaking ill of the father or distorting his image in the child’s mind.

The point is that it is not permissible for you to deprive the father of seeing his son and vice versa, rather you must allow him to see him and visit him, either in your house, if you have a mahram with whom you will feel safe if he enters your house, or outside the house. You can agree on a suitable time frame, such as every week, every two weeks and so on. You should also strive to raise your child well and bring him up with good morals, so that he will have a good attitude towards his father and others. Avoid turning the child against his father or making him hate him, because that is haraam, as it is a call to sever ties of kinship. Allaah says (interpretation of the meaning):

“Would you then, if you were given the authority, do mischief in the land, and sever your ties of kinship?

23. Such are they whom Allaah has cursed, so that He has made them deaf and blinded their sight”

[Muhammad 47:22, 23]

And the Prophet (peace and blessings of Allaah be upon him) said: “No one who severs ties of kinship will enter Paradise.” Narrated by Muslim (4637).

It says in Fataawa al-Lajnah al-Daa’imah (21/205):

If the wife leaves the marital home or the couple becomes separated by divorce, for example, and they have a child or children, it is not permissible according to Islamic sharee’ah for one of them to prevent the other from seeing or visiting their child. If the child is in the mother’s custody, for example, it is not permissible for her to prevent his father from seeing him and visiting him, because Allaah has enjoined upholding ties of kinship, as He says (interpretation of the meaning):

“Worship Allaah and join none with Him (in worship); and do good to parents, kinsfolk…”

[al-Nisa’ 4:36]

According to the hadeeth: “If anyone separates a mother and her child, Allaah will separate him and his loved ones on the Day of Resurrection.”

End quote. The hadeeth was narrated by al-Tirmidhi (1204) and classed as saheeh by al-Albaani in Saheeh al-Tirmidhi.

Now that you know the shar’i ruling on this issue, beware of resorting to the courts of man-made law to deny the father his right to see and visit his son, although you do have the right to go to court to prevent him from wronging and harming you, or taking your son away from you.

We ask Allaah to help you to raise him well and to help you to do which is good, right and proper.

And Allaah knows best.