Rules for Custody of Children
(Shaykh Ashraf Ali Thanwi)
Miscellaneous Fatwas Related to Marriage
(Maulana A S Desai)
FATWASQ. Please summarize the rules of custody of children of divorced parents.
A. (1) When husband and wife separate, custody of the minor children is the right of the mother. The boy child will remain in his mother’s custody until the age of 7 years, and the girl until she is near to buloogh (puberty).
(2) While the mother is the custodian, the father is the guardian. The mother does not become the guardian of the minor children. The mother, therefore, should not make decisions regarding the child without the father’s approval. The Islamic upbringing, ta’leem and tarbiyat of the children are issues to be decided by the father unless he is a faasiq.
(3) While the father will have access to his children, they will remain in the mother’s custody. The father may not keep the children with him overnight. He should not in any way interfere with or usurp her right of custody bestowed to her by the Shariah. The father may not demand that the children sleep at his home. In so doing he will be in violation of the mother’s right of custody.
(4) The Nafqah (maintenance) of the minors is the responsibility of the father.
(5) If the mother marries a man who is not a close relative of the children, her right of custody lapses. The one who is next on the list of custodians will take custody. However, if her husband (who is not a close relative of the child) divorces her or he dies, then the other’s right of custody will be reinstated.
(6) If there are no female custodians to whom the Shariah has bestowed the right of custody, then this right devolves to the father.
(7) The Right of Custody by Order of Priority is as follows: Mother, maternal grandmother, paternal grandmother, sisters, maternal aunts, sister’s daughters, brother’s daughters, paternal aunts.
Q. What is the difference between custodianship and guardianship?
A. The custody mas’alah is grossly misunderstood by even men of learning. When there is a separation between husband and wife, two distinct issues develop. The one is custodianship and the other is guardianship of the minor children. Until a certain age, the mother retains custody of the minors. But the father at all times remains the legal guardian of his children. Custodianship should not be confused with guardianship. The mother as the custodian of her minor children acts in the capacity of a kind, loving, benevolent servant who sees to the day to day needs of the children. The father, being the guardian, makes the decision pertaining to all matters related to the upbringing of the children. It is his right and choice to dictate the terms of the upbringing, ta’leem and tarbiyat of the children.
The mother has absolutely no right to debar the father from access to his children. The access and visitation ‘rights’ decreed by a non-Muslim court have no validity in the Shariah. The father may not be restricted from communicating with his children. He has the right of daily access and communication. There is no time frame to regulate the children’s association with their father. For most part of the time, the children are with the mother during the tenure of her custody. It is unlawful Islamically for the mother to spitefully restrict the father’s unfettered right of visitation.
But visitation does not mean that the father has the right to see the children in the home of his ex-wife. A suitable alternative venue should be arranged. In fact, the father should himself not drive up to the home of his ex-wife, hoot and wait for the children. It is dishonourable to do so, and it is in violation of the rules of Hijaab. An intelligent and an honourable arrangement should be made to pick-up and drop the children. The only factor which disrupts this Shar’i arrangement is the fisq and fujoor (immorality) of the father. The same applies to the mother. This factor has a bearing on custody, access and visitation rights.
Q. What is the order of priority of who will hold the right to have custody of the child?
A. In a situation of separation of husband and wife whether by divorce or death of one spouse, custody of the minor children is assigned by the Shariah to certain close relatives. In this regard there is an order of priority. The right of custody firstly devolves on the mother of the children. It is her right to keep her daughters until the age of 10, and the boys until the age of 7 years. Thereafter this right passes to the children’s father. If for some reason the mother is disqualified by the Shariah, then the right of custody passes to the maternal grandmother. In her absence, to the adult sisters of the minor children. In their absence, to the maternal aunts.
A woman loses her right of custody if she marries a man who is not a Thu rahm mahram (close relative) of the children. Such close relatives are the uncles of the minors, for example. When the mother loses her right of custody it does not follow that she is not allowed to retain custody even with the consent of those whose right it is. With the consent of the rightful guardian, the mother may retain custody provided that the welfare and Deeni interests of the children are not compromised on account of her marriage. When the mother loses custody, the next in line is the maternal grandmother, not the children’s father nor the paternal grandmother or paternal grandfather as is mistakenly understood in some quarters.
A vital requisite of custody is the welfare and interests of the minors. The interests of the children are not confined to their worldly and physical needs such as food, clothing and shelter. Of greater importance is the Deeni welfare of the children. Thus, if a rightful guardian is a bid’ati, faasiq or faajir, a modernist or one with corrupt beliefs, custody should be denied to such a person notwithstanding his right. In cases of this nature, the Shariah makes exceptions. In fact, it is not permissible to consign the minors to such people who constitute a danger to their Imaan and Akhlaaq (moral character).
Q. Who is more entitled to have custody of a minor in the absence of the mother – the sister or the maternal aunt?
A. The sister of the child has a prior right over the maternal aunt.
Q. A widow with a minor son (3 years) married a man who is not a close relative of the child. It is understood that in this case the mother loses custody of the child. The paternal grandfather demands that the boy be handed over to him as he is the rightful guardian in this case. The mother who is a practising Muslim, observing Hijaab and abstaining from evils such as television, etc., refuses to hand over the child. She argues that the grandfather is a faasiq. He shaves his beard. He spends hours viewing television. There is no proper purdah in his home. Males and females of prohibited categories mingle freely in his home. The grandfather as well as the other inmates of the house visit casinos, game centres and the like. He, his sons and daughters are thorough modernists. Islam is not their guiding light. Does the mother have any right to retain custody in such a situation? Will she be sinning by denying the grandfather custody of the child?
A. On the contrary, she will gain thawaab for denying custody. It should be well understood that the Shariah’s law of Hidhaanah (Custody and Guardianship) is regulated by the welfare and interests of the child. The prime basis underlying this Law is the welfare of the child, not the emotional feelings of the guardians. In the Shariah, the first demand of ‘welfare’ is the safety and development of the Imaan and Akhlaaq of the child. If these Waajib requirements are denied to the child as a consequence of the un-Islamic conduct (the fisq and fujoor) of the rightful guardian, the purpose of Hidhaanah is defeated and negated. Hence, if the rightful guardian, the paternal grandfather in this case, poses a threat to the Imaan and morals of the child, as he most certainly is, then it is Waajib for the mother to deny him custody. It is not permissible for the mother to sacrifice her child’s Imaan and Akhlaaq so callously by handing over the child to a reckless faasiq, faajir even if he is the legal guardian. To safeguard her child, the mother may even resort to the secular court to confirm her custody if this becomes necessary.
Q. I have married a lady who has two minor children from her previous marriage. I am not a relative of the children. Their father claims that the mother has forfeited her custody right and the children should be handed over to him. Is his demand in accordance with the Shariah?
A. When a woman marries a man who is not a very close blood relative of the children, then she loses the right of custody. However, this forfeited right does not pass to the children’s father. The maternal grandmother is entitled to custody. If she is not alive or for some reason does not or cannot take custody of the children, then this right devolves to the maternal aunts. If there are no females on the mother’s side to take custody, then the right devolves to the paternal grandmother. When the boy is seven years old, the father has the right of taking him, and the girl when she is 10.
Q. My wife has custody of our minor children. Is it permissible for her to take the children for a holiday to another town without my consent?
A. Although the mother has custody rights of the minor children until a certain age, the father remains the guardian. She may not decide any issue of the children without the father’s knowledge. It is not permissible for the mother to take the children out of the town without their father’s consent. All matters pertaining to the children have to be regulated by the father. The mother has custody of the boy child unt il the age of 7 years, and of the girl child unt il she reaches 10 years. After these ages the custody is the right of the father.
Q. When a divorced woman married another man, her ex-in-laws took away her two children - a girl of 6 and a boy of 3. They deny the mother visiting rights. Even the maternal grandparents are not allowed to see the children. In such a situation who has the right of custody of the children according to the Shariah?
A. The right of custody belongs to the maternal grandmother, not to the paternal grandparents. The girl will live with her maternal grandmother until she reaches ten years and the boy eight years. Thereafter, the right of custody belongs to the paternal grandfather. The paternal grandparents are acting in violation of the Shariah by denying the maternal grandmother’s right of custody and by preventing the children’s mother access to the children.
Q. I have a 12 year old son who lives with his mother whom I had divorced. According to the Shariah he is baaligh and I am not obliged to support him. But his mother is taking advantage of the law of the land and demanding maintenance for him because he is a ‘minor’ in terms of kuffaar law. I have agreed to support him if he lives with me. Will I be committing a sin if I refuse to support the child as long as he is not allowed to live with me?
A. From the age of 7 years, it is the father’s right to take custody of his son. The mother does not have the right of custody of the 12 year old child. If he or his mother denies your right of custody, you are entitled to withhold financial support.
Q. Is it permissible for a woman to deny her husband access to his infant son because he married a second wife?
A. It is haraam for her to deny him access to his son for this baseless reason. She has no right to commit such zulm.
Q. A man married a widow who has two minor children. He is not related to her in any way nor to the children. Who is the legal guardian of the children according to the Shariah?
A. In this case, the maternal grandmother is the legal guardian. In the absence of the maternal guardian, the maternal aunts have the right of custody.
Q. My husband and I had adopted a boy. The child is 5 years old. We are now divorced. Who has the right of custody over the child?
A. The normal rules of Custody do not apply in view of the fact that none of you is the parent of the child. The one who provides the maintenance for the child will have the right of custody.
Q. A divorced woman has custody of her minor children. She married a man who is not a close relative of the children. Since she now loses custody in terms of the Shariah, the children’s father has taken custody. The maternal grandmother demands that the children live with her, but the father refuses. Who has right of custody in this case?
A. The maternal grandmother is the rightful custodian of the minor children. The father has no right to usurp the Haq of the grandmother. He is guilty of a grave sin. He has to incumbently hand over the children to the maternal grandmother. When the boy is seven years old, and the girl 10 years, custody will pass to the father.
Q. Is it permissible for the mother who is divorced and has custody of the minor children to take them out of town for a holiday without the permission of the father?
A. Although a mother has custody of minor children until a certain age, the father always remains the guardian. As such the mother has no right of acting unilaterally regarding the ta’leem and tarbiyat of the children. She may not make decisions pertaining to the children without the father’s approval. She has no right of taking the children for a holiday or to anyone’s home even in the same city without the consent of the father. The separation or divorce does not diminish the right if the father over his children or his right of guardianship in any way whatsoever.
Q. A Christian woman embraced Islam when she married a Muslim . A child has been born, but the woman has become a murtad. Who has the right of custody of the child?
A. According to the Shariah, the father has the right of custody of the child. The woman who became a murtad has no right of custody.