Should an Openly-Sinful Father Get Custody of His Children?

Question:

Assalam alaikum. 

What is the Islamic ruling for custody of children in a divorce when the father is a Muslim who has left Islam’s practices? He does not pray, fast, drinks alcohol, and had affairs during the marriage. The children are being raised to practice Islam’s tenets by the mother, and the father has provided verbal support. At this time, the children do not know that their father drinks alcohol.

Answer:

Wa ‘alaykum assalam wa rahmatullah wa barakatuh.

Inshaa Allah, you are well.

Usually, the father has the right to take custody of his children when they reach certain ages: seven and nine lunar years, for boys and girls, respectively. However, this would be in a situation where his presence will not be actively harmful to them. (Maydani, al Lubab)

If he is indeed committing such acts openly, which is likely to harm the children on a religious level or otherwise, then his right would be forfeited until he gets to a stage where this would not be the case. It would be best to speak to a reliable, local scholar to discuss the matter with both sides. It might be necessary to appeal to the courts too.

Please do your best to facilitate a relationship between your children and their father as much as possible. If it is hindered or poisoned in any way, it is only the children who will truly be harmed.

Given the considerations in such cases, we urge you to please consult reliable local scholars or counselors about the situation’s specifics. Jazakum Allah khayr. May Allah facilitate all ease and good for you.

May Allah facilitate what is best for you all.
[Shaykh] Abdul-Rahim

Checked and Approved by Shaykh Faraz Rabbani

Shaykh Abdul-Rahim Reasat began his studies in Arabic Grammar and Morphology in 2005. After graduating with a degree in English and History, he moved to Damascus in 2007, where, for 18 months, he studied with many erudite scholars. In late 2008 he moved to Amman, Jordan, where he continued his studies for the next six years in Sacred Law (fiqh), legal theory (Usul al-fiqh), theology, hadith methodology, hadith commentary, and Logic. He was also given licenses of mastery in the science of Quranic recital. He was able to study an extensive curriculum of Quranic sciences, tafsir, Arabic grammar, and Arabic eloquence.