Custody Of A Child

Answered by Ustadh Tabraze Azam

Question: Assalam u Alaikum, I have been a widow for 2 years. In the Hanafi fiqh, if I decide to marry again to a non-mahram, what custody and responsibilities will I have over my son and daughter? My father-in-law has stated he is the wali of the children, what age is this till?

Answer: Wa alaikum assalam wa rahmatullah

In cases of marital separation by death or divorce, the custody of young children normally immediately transfers to the mother of the children.

If the child is a boy, the mother has a right to keep him until he is able take care of his own needs, such as eating, drinking, and using the bathroom without assistance. This has been estimated to be around seven lunars years of age. And if the child is a girl, the mother has a right to keep her until she begins becomes an adult according to the Sacred Law (shari‘a). Thereafter, the custody rights transfer to the father. In the absence of a father, the next in line is the paternal grandfather, the brother, and finally the paternal uncle. This is the upshot, but there are, of course, details.

Child Custody in Cases of Remarriage

Abu Dawud reported a tradition (hadith) in which a lady came to the Prophet (Allah bless him and give him peace) and said, “O Messenger of Allah! My womb was a container for this son of mine, my bosom was a source of drink for him and my lap was a place of security and protection. His father divorced me and he wants to take him away from me.” So the Messenger of Allah (Allah bless him and give him peace) said, “You have a greater right to him as long as you do not marry.”

If a mother remarries somebody who is not a blood relative (mahram) of the child, she loses her right to custody. The reason for this is that her new marriage may busy her from giving sufficient attention to raising the children, and even if it doesn’t, it is assumed as such. Accordingly, the right transfers to the maternal grandmother and failing that, the paternal grandmother. Any time there is a death or a person is unfit or unable to look after the child, the right transfers to the next person. When the right is with other than a mother, both girls and boys have the same custody period.

Whenever the child becomes an adult, custody rights no longer apply. Hence, the children may choose where to live at this point. Similarly, and whenever the matter is taken to court, the verdict is going to be binding because it now becomes a procedural issue which one is normally bound to uphold. If this occurs in a non-Muslim country, the law of the land would need to respect. Hence, if the judge rules in favor of the mother, she would have the right to keep the children. Moreover, it is possible for somebody who has a right to forgo it, and thereafter, suitable living arrangements with the mother could potentially be organized.

Guardianship of Young Children

As for guardianship (wilaya), it remains in the hands of the paternal grandfather, as long as he is alive, who takes the place of his son, the father, normally until adulthood. The job of the guardian is to ensure that the child gets an education, medical attention, when and if required, and that his money and possessions are safeguarded. It doesn’t mean that he gets custody rights immediately because that is a separate set of laws.

(Qadri Pasha, al-Ahkam al-Shar‘iyya fi’l Ahwal al-Shakhsiyya; al-Fatawa al-Hindiyya; Kurdi, al-Ahwal al-Shakhsiyya)

Please also see: Who Gets Custody of the Children After a Divorce?

And Allah Most High knows best