Custody of Children

By Mufti Ebrahim Desai
Posted: 27 Zul-Hijjah 1423, 1 March 2003

Q 1.) My cousin-brother's wife died after giving birth. Now the child is with my cousin's father and mother. He is working abroad. His father-in-law and in-laws claim that the child should be with mother's mother. We think that the father of the child --- and no one else --- is fully authorized to decide where the child should be. [Muhammad Yahya]

Q 2.) What are the laws of Shari'ah pertaining to Custody and maintenance of children in the case of divorce or in the event of death of one of the spouses?

A.) As an introduction, we should understand that our children are a trust of Allah upon us. He has ordered us to fulfil the rights of this trust. Primarily, children have two rights: to receive love and to receive proper upbringing.

Both these rights are equally important. Love to the child enhances compassion and proper upbringing enhances righteousness. While both the parents have to make an effort to enhance both these qualities in the child, generally the mother fulfills the greater part of showing love thus enhancing compassion and the father fulfils the greater part of proper upbringing thus enhancing righteousness. The absence of any one of these two qualities (compassion or righteousness) is detrimental to the child. A person without compassion is not loved and a person who is not upright is not respected by society.

Only with a joint effort by both parents fulfilling their respective roles can the children be balanced and fulfill a meaningful role in society. Generally, a single parent is unable to adequately fulfill both the rights of the child.

The death of one of the parents is beyond our control, and cannot be avoided. However, divorce is within our control and should be avoided as far as possible, especially if there are children involved. Although Shariáh has addressed the rights of custody and visitation, children still suffer the lifelong consequences of their parents' disputes and subsequent divorce when there is a dispute and no understanding between the parties. Therefore, a healthy child is he who has been jointly reared by both parents.

However, if the parents are divorced, the mother has the rights of custody of a minor. In the case of a male, till the age of seven and in the case of a female till the age of nine (Shaami vol. 3: HM Saeed). The mother will receive the rights of custody with five conditions: She is (a) a free person; (b) adult; (c) sane; (d) trustworthy; (e) capable (Ibid pg. 556). Hence, the mother's right of custody is forfeited if: 1) she remarries a Ghayr Mahram (stranger according to Shariáh) of the child; 2) She demands remuneration for the upbringing of the child while there is another woman to rear the child without remuneration; 3) She does not attend to the child due to her leaving the house very often; 4) Openly indulges in sin and there is fear of the child being affected.

If the mother does not or is unable to exercise her right, then the following persons have the right of custody in sequence: maternal grandmother; paternal grandmother; real sister; maternal sister; paternal sister, etc.

After all the avenues of the female have been exhausted as explained by the Jurists, the males have the right of custody in the following sequence: a) father, paternal grandfather, real brother, paternal brother, maternal brother, etc.

Irrespective of who (mother/father) has the rights of custody, the other party has visitation rights according to mutual understanding and consent. Generally, the party having the rights of custody uses the child as a weapon to punish the other party by depriving them of visitation rights. This is un-Islamic and also harmful to the child.

At all times the father of the child is responsible for maintaining the child; in the case of a female, until she marries; while in the case of a healthy male, until he reaches maturity. In the case of a disabled child (male or female) the father is permanently responsible. (Ibid 604).

When the mother has the rights of custody but does not have a shelter to stay in with the child, the father must provide shelter for both (Ibid pg. 561)

According to the Hanafi Madhab, the child does not have an option to stay with whomsoever he wishes. After maturity or puberty only does the child have a choice (Ibid pg. 567).