Should I Give Custody Rights to My Illegitimate Son’s Atheist Father?

Answered by Ustadha Shazia Ahmad

Question

I reverted when I was 17 with little knowledge of Islam and unfortunately did not practice. I found myself pregnant at 20, and alhamdulillah, Allah guided me to commit to my faith. I renewed my shahada and have been fully practicing ever since and am married now to a good man. In Canada, my son’s father has rights, but Islamically, what are his rights? My son is 4.5 years old and has excellent character ma sha Allah. He loves Islam and is memorizing the Quran. His father is an atheist who hates religion and will expose him to haram. Does he have rights over his son? Can I make dua that Allah protects him from this man? Or should he be given to this man to raise?

Answer

Thank you for your question. May Allah reward you for actively seeking change, and may He wipe out your past sins and give you success and blessings in all that you do.

Non-Muslim Father

If your child was legitimate, and his father was non-Muslim, the following ruling applies. It says in the Reliance of the Traveller:

“m13.2 The necessary conditions for a person to have custody of a child are:

[…]

(c) and if the child is Muslim, it is a necessary condition that the person with custody be a Muslim (O: because it is a position of authority, and a non-Muslim has no right to authority and hence no right to raise a Muslim. If a non-Muslim were given charge of the custody and upbringing of the child, the child might acquire the character traits of unbelief (kufr)).”

As such, your child may not be given over to his biological father, legitimate or not. A biological father, in Islam, has fewer rights than a legitimate father.

Visitation

This is a very delicate situation, and I’m not certain how you should proceed with visitation. It seems that even his visits can be harmful to your son. Legally, the boy is attributed to you and has no father. The boy cannot inherit from him, nor can the father inherit from his son.

Please consult local scholars on this matter, and seek guidance on the rights of the biological father. It is not necessary that you keep him away from his father forever, but gradually introducing him into his life might be better. You are correct in protecting his faith and habits while he is young. It is also part of human decency that his biological father supports him financially. It is permissible to supplicate for what you mention.

Please see more details here:

Should A Openly-Sinful Father Get Custody Of His Children?
Can I Claim a Child from an Illicit Relationship?
Rights and rulings of an illegitimate child

May Allah give you the best of this world and the next.

[Ustadha] Shazia Ahmad
Checked and Approved by Shaykh Faraz Rabbani

Ustadha Shazia Ahmad lived in Damascus, Syria, for two years, where she studied aqidah, fiqh, tajweed, Tafseer, and Arabic. She then attended the University of Texas at Austin, where she completed her Master’s in Arabic. Afterward, she moved to Amman, Jordan, where she studied fiqh, Arabic, and other sciences. She recently moved back to Mississauga, Canada, where she lives with her family.