Assalaamu Alaikum

After a marriage that lasted for a few years, a family friend of ours divorced his wife and tried to take the child from his wife. I was trying to comfort the wife and she asked me 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. Please advise.

Mrs S. Begum

Answer

Let’s start off by looking at a wonderful Hadith of a wonderful Prophet, Hadhrat Muhammad-ur Rasullullaah (Sallallaahu Alayhi Wasallam) when Bahz ibn Hakim’s (Radi Allah Anho) grandfather asked the Messenger of Allah Taa’la, to whom should I be dutiful? ‘Your mother,’ He replied. I asked, ‘Then whom?’ ‘Your mother,’ He replied. I asked, ‘Then whom?’ ‘Your mother,’ He replied. I asked, ‘Then whom?’ ‘Your mother,’ He replied. I asked, ‘Then to whom should I be dutiful?’ ‘Your father,’ He replied, ‘and then the next closest relative and then the next.’

Mothers in Islam have many rights and priority of custody is one of them. According to ‘Wilaayat al-Mar’ah fi’l-Fiqh al-Islaami’ in principle, custody belongs to the mothers, because they are more compassionate and kinder and they know how to raise small children better, 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 accord. 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 obstruction 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. In the light of the Holy Qur’an a man is the head of the family, it will be the responsibility of the father to provide for the basic needs of the children whether they are living with him or with their mother.

Shaykh Mohammad Al-Hanooti, an Al-Azhar scholar says that the child should be in the custody of the mother, unless there is some valid contestation as to her ability to care for him, and if so, then that contestation must be addressed through a legal process and according to the law, he adds. “If the father is awarded custody after the legal proceedings, he must stay within a reasonable radius so as not to deny the mother the right to see her child.”

We find in a Hadith that once a woman came to the Prophet and said, ‘Prophet of Allah (Taa’la), my womb is a vessel to this son of mine, my breasts are a water-skin for him and my lap is a guard for him; yet his father has divorced me and wants to take him away from me.’ The Holy Prophet Hadhrat Muhammad-ur Rasullullaah (Sallallaahu Alayhi Wasallam) of Allah Taa’la said, “You have more right to him as long as you do not marry.’ (Reported by Ahmad, Abu Dawood and al-Haakim).

In addition, to conclude, they both cite that the Holy Qur’an itself guards against one parent unilaterally deciding to enforce anything regarding a child’s upbringing without first consulting the other parent.

The obligation of Shura (consultation), even regarding the weaning of a child, is clearly stated in Surah Al-Baqarah, “If they both decide on weaning, by mutual consent and after due consultation, there is no blame on them. (Holy Qur’an 2: 233).

(VERILY, ALLAH TAA’LA IS ALLKNOWING!)