691. Custody Of The Child

By Asma Bint Shameem

If a couple goes through divorce, or if the father dies, the mother has the right to custody of the children until they are seven years old. 

But if she remarries, she loses custody of her children. 

That’s because a woman said: 

“O Messenger of Allaah, this is my son; my womb was a vessel for him, and my breasts gave him to drink, and my lap was a protection for him. His father has divorced me and he wants to take him away from me. The Messenger of Allaah Sal Allaahu Alaiyhi wa Sallam 

said: 

“You have more right to him so long as you do not remarry.” (Ahmad, Abu Dawood- Hasan by al-Albaani)

But if the mother also dies then there’s a difference of opinion among the scholars about who gets the custody of the child. 

Some of the ulama said that the mother’s side gets custody, meaning the mother’s mother then the mother’s sister etc

But others said that the father’s mother gets custody then the father’s sister and so on. 

The scholars said:

“The scholars differed concerning the definition of the one to whom the right to custody is passed after the mother. 

The majority were of the view that it is passed to the mother’s mother, but Shaykh al-Islam Ibn Taymiyah and his student Ibn al-Qayyim (may Allaah have mercy on them both) disagreed with them and said that it is passed to the father, but if they are both equal in terms of closeness to the child, then the relatives on the father’s side are given precedence, and the father’s mother is given precedence over the mother’s mother, and the paternal aunt is given precedence over the maternal aunt, and so on.”

(Islamqa Fatwa # 107472)

Basically the best interest of the child,  his wellbeing and safety must be considered top priority. 

Shaykh ibn Saalih al-‘Uthaymeen said:  

“It should be noted that with regard to this matter, attention must be paid to the child above all else. If going with one of them or staying with one of them will cause harm to his religious or worldly interests, then no approval should be given to one who will not protect him or take care of his interests, because the basic purpose of custody is to protect the child from that which will harm him, and to look after his interests.”

[Al-Sharh al-Mumti’ (13/545)]

Here’s what Shaikh Salih al-Fawzaan said regarding this issue:

He said:

“Abdullah Ibn ‘Amr radhi Allaahu anhumaa narrated that a woman said: 

“O Messenger of Allaah, this is my son. 

My womb was a vessel for him, my breasts were a source of drink for him, my lap was a place for him to curl up. 

Now, his father has divorced me, and he wishes to take him from me.” 

So Allaah’s Messenger Sal Allaahu Alaiyhi wa Sallam  

said:

“You have a greater right to him, so long as you do not re-marry.” 

(Ahmad (6707), Abu Dawood (2276), Al-Haakim (2/207))

Her saying that “my womb was a vessel for him” means that it was a place of protection during her pregnancy. 

“My breasts were a source of drink for him” means that he would he would suckle her breasts just as one drinks water. 

“My lap was a place for him to curl up” means that her lap and arms were a place of comfort and sleep, and a place of sitting. 

So she explained what she had been to this young child in terms of her carrying him in her womb, breastfeeding him and nurturing him. 

Then her husband divorced her and they were separated. 

So the father desired to take the child from its divorced mother. 

So the Prophet Sal Allaahu Alaiyhi wa Sallam said to her:

“You have a greater right to him” meaning over the custody of the child, “so long as you do not remarry.” 

So this hadeeth carry two issues connected to child custody (al-hadaanah):

One: That the right of custody over a young child is with the divorced mother.* 

That is because the mother will be more compassionate towards him than the father, and more aware of its needs: hygiene, cleanliness, neatness, and overall care of him. 

For this reason, the Law-Maker (Allaah) gave her the right to custody and gave her precedence over the father. 

This hadeeth proves that women are given precedence over men in the affair of child custody. 

So the one having the most right to custody is the mother, then her mother, then the maternal aunts because they carry the position of the mother. 

Thereafter, it is the womenfolk from the father’s side of the family, such as the grandmother (father’s mother), the sisters, the daughters of his brothers and the paternal aunts. 

Thereafter it is given to the male relatives if the female relative cannot be found. Meaning if women from the mother’s side cannot be found, and women from the father’s side cannot be found, then in that situation custody is given to the males – those having the closest blood ties given precedence. 

So the man gives the care of the child (baby) to a woman (of his household) who will be good to it. It could be his wife or another woman who will take care of the baby.

So this is the order of custody of a young child in Islam:

1. The women on the mother’s side of the family (beginning with mother herself).

2. Then the women on the father’s side of the family.

3. Then the men on the father’s side of the family (their wives, etc).

A man cannot look after a young child or take custody of it, but he can hand over its care to a trustworthy woman who will look after it.

Two: If the mother remarries, then she loses custody, and it passes to the next person in line.* 

That is because her main concern now is her new husband. 

She cannot busy herself with her baby to the disadvantage of her husband — *unless* her new husband *permits* that and allows her to hold on to the custody of her baby, then in that situation the right [of custody] *remains with the mother*. 

That which prevented her from keeping the baby was her duty to her new husband. 

However, if he permits her to look after a child from a previous husband, then the right of custody returns to her due to the removal of the preventative barrier (which was the concern of her new husband).”

(Shaikh Salih al-Fawzaan’s explanation of Buloogh al-Maraam min Adillatil-Ahkaam) 

And Allaah knows best