What are the Rulings On Child Custody in Shafi‘i School?

Answer

In the Name of Allah, the Most Merciful and Compassionate.

May Allah alleviate our difficulties and guide us to what pleases Him. Amin.

Based on the information provided, especially your seven-year-old son’s preference and the fact that your ex-wife remarried, you (the father) should have custody. However, this should be confirmed with reliable local scholars who could thoroughly investigate the circumstances of your custody situation, and Allah knows best.

Child Custody

It is important to remember that, as Muslims, our ultimate goal is to please Allah and follow His commands. In the case of custody disputes, the well-being and best interests of the child should be the top priority.

Understandably, you are concerned about your son’s religious upbringing, and it is commendable that you have been actively involved in teaching him about Islam. However, it is also essential to consider the emotional and social well-being of the child.

In custody matters, the mother is generally given priority, especially for young children. However, this does not mean the father’s rights are completely disregarded. The father has the right to visitation and to maintain a relationship with his child. [Nawawi, al-Majmu ‘]

Who Has the Right to Custody?

The person with the best right to custody of a child (in order) (when there is a dispute concerning who should have it) is:

1. the mother;
2. the mother’s mother, mother’s mother’s mother, and on up, such that one of the generations closest to the child takes precedence;
3. the father;
4. the father’s mother, father’s mother’s mother, and on up, where again, one of the generations closest to the child takes precedence;
5. the father’s father;
6. the father’s father’s mother, her mother, and on up, where one of the closest generations takes precedence;
7. full sister;
8. full brother (though when the siblings are all male or all female, and there is a disagreement over who should have custody, they draw lots to see who will get it. When both males and females exist, females take precedence);
9. the child’s half-brothers or sisters from the same father;
10. the half brothers or sisters from the same mother;
11. the mother’s sister;
12. the daughters of the full brothers;
13. the sons of the full brothers;
14. the daughters of the half-brothers from the same father;
15. the sons of the half brothers from the same father;
16. the daughters of the half-brothers from the same mother;
17. the sons of the half-brothers from the same mother;
18. the father’s sister;
19. the father’s brother;
20. the daughters of the mother’s sister;
21. the daughters of the father’s brother: and then
22. the son of the father’s brother. [Ibid.]

Conditions of Custody

The necessary conditions for a person to have custody of a child are:

• Uprightness (a corrupt person may not be a guardian because child care is a position of authority, and the corrupt are unqualified for it. (Imam Mawardi and Imam Ruyani hold that outward uprightness is sufficient unless there is open wrongdoing. If the corruptness of a child’s mother consists of her not performing the prayer (salat), she has no right to custody of the child, who might grow up to be like her, ending up in the same vile condition of not praying, for keeping another’s company has its effects);
• Sanity (since a mother uninterruptedly insane has no right to custody, though if her insanity is slight, such as a single day per year, her right to custody is not vitiated by it);
• And if the child is Muslim, the person with custody must be a Muslim (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)). [Ibid.]

If the Mother Remarries

A woman has no right to custody of her child from a previous marriage when she remarries because married life will occupy her with fulfilling the rights of her husband and prevent her from tending to the child. [Ibid.]

It makes no difference in such cases if the new husband agrees or not (since the child’s custody in such a case automatically devolves to the next most eligible on the list) unless the person she marries is someone on the list who is entitled to the child’s custody anyway. As opposed to someone unrelated to the child, since such a person, even if willing, does not deserve custody because he lacks the tenderness for the child that a relative would have. [Ibid.]

The Child’s Preference

When a child reaches the age of discrimination (O: which generally occurs around seven or eight years of age), he is given a choice as to which of his parents he wants to stay with (O: since the Prophet (Allah bless him and give him peace) gave a young boy a choice between his father and his mother. [Ibid.]

The child is only given such a choice when the necessary conditions for child custody (as mentioned above) exist in both parents. If one of them lacks a single condition, then the child is not given a choice because someone lacking one of the conditions is as though non-existent. [Ibid.]

If the child chooses one of the parents, he is given to the care of that one, though if a son chooses his mother, he is left with his father during the day so the father can teach him and train him. Other possible outcomes of such a choice are when the child chooses both parents, in which case they draw lots to see who receives custody of him, or when he chooses neither, in which case the mother takes precedence since the custody is hers and the child has not chosen someone else. [Ibid.]

If the child subsequently chooses the other parent, he is given to the care of them, for he might want to stay with one of them at one time and with the other at another, just as one desires food at one time but not another. Or the child’s intention might be to maintain good relations with both sides. [Ibid.]

The author restricts the permissibility of such cases of transferring the child’s custody from one to another by saying: unless it is apparent that the child is merely enamored with going back and forth or is weak-minded, indicating his lack of discernment. In such cases, his choice is not followed, and he remains with whomever he was with before reaching the age of discernment. [Ibid.]

Applying Wisdom

It is crucial to approach the situation with compassion and understanding towards the mother and her family. Perhaps a compromise can be reached where your son can spend time with you and continue practicing Islam under your guidance while maintaining a relationship with his mother and her family.

Ultimately, the custody decision should be made with the child’s best interests in mind, as determined by Islamic principles, reliable scholars’ judgment, and local laws. We advise you to seek the guidance of qualified Islamic scholars or trustworthy family counselors who can provide more specific advice based on your individual circumstances.

I pray this is of benefit and that Allah guides us all.
[Shaykh] Irshaad Sedick
Checked and Approved by Shaykh Faraz Rabbani

Shaykh Irshaad Sedick was raised in South Africa in a traditional Muslim family. He graduated from Dar al-Ulum al-Arabiyyah al-Islamiyyah in Strand, Western Cape, under the guidance of the late world-renowned scholar Shaykh Taha Karaan.

Shaykh Irshaad received Ijaza from many luminaries of the Islamic world, including Shaykh Taha Karaan, Mawlana Yusuf Karaan, and Mawlana Abdul Hafeez Makki, among others.

He is the author of the text “The Musnad of Ahmad ibn Hanbal: A Hujjah or not?” He has served as the Director of the Discover Islam Centre and Al Jeem Foundation. For the last five years till present, he has served as the Khatib of Masjid Ar-Rashideen, Mowbray, Cape Town.

Shaykh Irshaad has thirteen years of teaching experience at some of the leading Islamic institutes in Cape Town). He is currently building an Islamic online learning and media platform called ‘Isnad Academy’ and has completed his Master’s degree in the study of Islam at the University of Johannesburg. He has a keen interest in healthy living and fitness.