Who Gets Custody of the Children After a Divorce?

Answered by Shaykh Talal al-Azem

Question

I have read somewhere that in case of a divorce, the mother gets custody of the children, she has custody of a male child until the age of 9 and of a female child until the girl gets married. The exception to the rule is if the mother remarries, than the father gets custody of the children. Please clarify.

Answer

In the Name of Allah, Most Gracious, Most Merciful

In the name of Allah, Most Beneficent, Most Merciful. All praise is due to Allah the Lord of the worlds. And peace and blessings be upon our master Muhammad, his folk, and his companions.

1. Under normal circumstances, according to the Hanafi madhhab, the mother (or, if she remarries or dies, the maternal grandmother, then the paternal grandmother) gets legal custody of

• a male child until the child is capable of taking care of his own basic bodily functions & needs (eating, dressing, cleaning himself), which, for legal purposes, may be approximated at seven (7) years of age, [Quduri; Qudri Pasha, article 494]
• a female child until she reaches puberty, which, for legal purposes, may begin at the age of nine (9) years, or any point thereafter, up until the age of fifteen (15). [Quduri; Qudri Pasha, articles 494 & 495]

Thereafter, in each case, legal custody of the child is transferred to the father. [Quduri]

The scholars explain that the reason for this is that, in the early years, the mother (and each of the grandmothers) is more apt to raise the young child (regardless of sex) with mercy, full attention, and motherly care, in addition to inculcating the female child at this age with feminine traits and character; after the above-delineated respective ages, the father is more capable of inculcating the male child with masculine traits and character, and protecting the female child.

2. After the transferal of legal custody from the mother to the father, the boy remains under the legal custody of the father until puberty (maturity), at which point, if he is mature and wise, he is free to choose with whom to live, or to live on his own. As for the girl, legal custody remains with the father until she marries, for the above mentioned reasons. [Qudri Pasha, articles 498 & 499]

3. If the mother remarries other than the father (or dies) during her rightful period of legal custody, the legal custody is transferred to the maternal grandmother, and after her, the paternal grandmother; if she also remarries or dies, it is transferred to the next relative, as ordered in the attachment below. [Quduri]

The scholars explain that the reason for this is that when the mother remarries, her responsibilities and duties towards the new husband may busy her from properly tending to her children, as the new husband may not feel responsible towards his new wife’s children; thus, the child is transferred to the next of the maternal women-folk who are able to properly care for and nurture the young child.

4. The primary distinction between any relative and the mother or grandmother, is that, under the legal custody of a relative (other than a grandmother), when the female child reaches the age at which she is apt to begin to show signs of physical attractiveness (which, for legal purposes, may be approximated at (9) years of age), legal custody is transferred to the father, regardless whether the girl has reached puberty or not. [Quduri]

The scholars also explain that, in the case of custody of a relative other than the mother (or grandmother), the legal custody of the girl is transferred to the father as he is normally more meticulous in ensuring her safety and moral up-rightness, and in order that other relatives do not use the child as a servant to work for them for merely their own personal benefit.

5. All of this, of course, is if the matter is taken to the courts, or both parents want custody of the child. There is no harm, however, in different living arrangements being made if the parents, grandmothers and other women-folk who have right to custody after the mother do not object and amiably agree thereto.

6. All of the above mentioned is based on the assumption that the mother and father are morally upright people; if not, other rulings would apply.

7. There are also other conditions and rulings which deal with visitation rights, custody during illness of the child, lack of wisdom in a post-pubescent child, etc., which are outside the scope of the question, and would need to be checked by anyone who desires to apply these rulings in their lives.

Other madhhabs: The position mentioned by the questioner, in which legal custody of the female child remains with the mother until marriage, is apparently the position of the Maliki madhhab; in the Shafi’i madhhab, until puberty (maturity), in which case she is free to choose with which of the parents to live; in the Hanbali madhhab, it is transferred to the father upon the girl’s reaching puberty (maturity). Each position should be checked by teachers of that madhhab.

For further details, and for the source-texts for most of the above, I have attached “The Book of Child Care and Custody (Hadana)” from the Mukhtasar of Quduri, with explanation of some of the text by the 19th century Syrian Hanafi scholar, ‘Abd al-Ghani al-Ghunaymi al-Midani, taken from his al-Lubab fi Sharh al-Kitab, (symbolized as “M”). Comments made by teacher of fiqh, Sh. Khaled al-Kharsa, are symbolized as “K”.

And Allah knows best.

Talal Al-Azem

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The Book of Child Care and Custody (Hadana)

Taken from “the Mukhtasar of Quduri”, a work in progress. Talal Al-Azem 2002

1.0 THOSE WITH THE BEST RIGHT TO CUSTODY OF A CHILD

1.1 Women relations

1. If the spouses are separated [t: after completion of any necessary waiting period due to divorce or legal separation], the person with the best right to custody of a child is [t: in order, such that if one is not available, the next has the best right]:

(1) the mother;

(2) the maternal grandmother, and on up;

(3) the paternal grandmother, and on up;

(4) the sisters;
(a) full sisters,
(b) maternal half sister,
(c) paternal half sister,

(5) maternal aunts, likewise in the same order [t: meaning, full maternal aunt, maternal aunt from the grandmother, maternal aunt from the grandfather]

(6) then paternal aunts, likewise in the same order.

2. Any woman of these categories who marries [M: a non-relative of the child] loses her right, save the grandmother, if her husband is the grandfather [M: since he is equivalent in position to the father; and likewise every husband who is a non-marriageable relative of the child] [K: However, if the woman then separates from the husband, her right is restored].

1.2 Male paternal relations

1. If the child has no woman kin, and the men fall into dispute over who should have his custody, the male who has the most right to him is he who is closest to the child in paternal relations, [M: save that, in the case of a girl, she is not given in custody to a relative who is not unmarriageable kin, such as her paternal cousin, in fear of it leading to sedition (fitna).]

2. [M: Furthermore, if there are no paternal male relations (`asaba), the right is given to maternal relatives (dhuwai al-arham), after which, if those who remain are all equal in relationship to the child, the right is transferred to:

(1) the most upright [K: meaning, he who most refrains from committing acts of disobedience (hurumat)],
(2) then the most God-fearing [K: meaning, he who most refrains from committing acts which are suspect (shubuhat) in the Sacred Law],
(3) then the oldest.

3. There is no right, however, for the son of a paternal uncle, son of a paternal aunt, son a maternal uncle, nor son of a maternal aunt, due to their not being unmarriageable kin].

1.3 A non-Muslim mother

A non-Muslim woman has the best right to custody of her Muslim child, as long as he is not of the age at which he can understand religions, at which point it is feared that he may become accepting of disbelief (kufr).

2.0 THE AGE OF TRANSFER FROM THE WOMEN RELATIONS TO THE FATHER

1. The mother and the grandmother have the best right to a male child until the age at which he is able to eat, dress and clean himself of filth (istinja’) on his own, and to a female child until she reaches puberty.

2. All those beside the mother and grandmother who have the best right to the female child do so until she reaches the age at which she becomes physically desirable [M: which is estimated at nine (9) years of age.

3. After which (t: in all of the above scenarios), the right goes to the father].

3.0 THE MOTHER’S TRAVELING WITH THE CHILD

1. A divorced woman is not permitted to travel and leave the city (misr) with her child [M: to another city, the distance between them being such that the father could not visit his child and return in the same day] unless she is taking him to her homeland, which is permitted on condition that her husband had married her there.

2. [M: If, however, she relocates from a village which is near to a city to the city (itself), there is no harm therein].