Who gets the custody of children?

[leo]

Who gets the custody of children?


According to Islam, the mother has more rights to child custody than the father does. The reason being that a mother is more compassionate towards her children because she bore them in hardship and is more naturally inclined to look after their wellbeing than the father. That's not to say that the father does not love his children, it just means that the mother is more apt to fulfill the needs of her children. The father would have visitation rights with his children.

However, there are conditions that apply for the mother to retain custody of her children. The most important condition is that the mother must be a Muslim. If she is not a Muslim, then she forfeits her right to custody of her children according to the Shariah law. The Muslim father would retain custody to ensure that the children are brought up in the religion of Islam.

However, the non-Muslim mother would have access and visitation rights to her children. Another condition is if the mother remarries then custody automatically reverts back to the father. The reason being that a stepfather may not treat the children of another man with kindness and might actually be abusive towards them. In this case, the father would get physical custody of his children and the mother would have visitation rights. The Prophet was once asked the very same question by a divorced woman:

"O Messenger of Allah, my womb was a vessel for this son of mine and my lap was a refuge for him, but his father has divorced me and he wants to take him away from me. The Prophet said to her: "You have more right to him so long as you do not remarry." (Abu Dawood-Saheeh)

The mother must also be of sound mind and body to ensure the safety and well being of the children. If there is something lacking in her mental state or if she treats her children with contempt then the father regains custody. In Islam, the welfare of the child is of paramount importance. When a child reaches the age of being able to make sound decisions, around 7 or 8 years, they can choose which parent they prefer to live with.

As for the financial maintenance of children, the father is exclusively responsible for paying child support according to his financial status. If a man refuses to pay child support then he is clearly sinning in Islam and will be held accountable for his deeds.

Allah Almighty says in the Holy Quran:

"Let the rich man spend according to his means; and the man whose resources are restricted, let him spend according to what Allah has given him. Allah puts no burden on any person beyond what He has given him. Allah will grant after hardship, ease." (65:7)

Dealing with divorce and child custody issues is often heartbreaking for both sides, the husband and wife. Divorce is one of the most hated things in the sight of Allah and all measures should be taken to rectify the marriage as doing so can be of more benefit to all of the parties involved.


Sumayyah Meehan is a Kuwait-based American writer who embraced Islam.

4 July 2008

http://www.khaleejtimes.com/DisplayArticle.asp?xfile=data/editorial/2008/July/editorial_July7.xml&section=editorial&col=

[ummafnaan]

Assalamu alaikum,

This question is for anybody who knows the answer (also would be nice if you can show evidence from Qur'an, Sunnah or bonafide scholar):

What if the husband is doing some major haram which caused his wife to seek a dicorce? Does the husband still have the right to custody of the child if she decides to re marry? Considering the child's islam could be at stake if they remain with the father and his habits. Where I come from women tend to give up hope of re marrying either because they fear the father will not care for the child properly if they get custody, or they fear his new wife might abuse the child (trust me its common. I grew up in a polygamous home. Step mothers can be nasty.) Can the wife keep her child under these circumstances and still remarry? Step fathers are definately much more tolerant than step mothers in my experience. Jazaakallahu khairan

[Abuz Zubair]

This depends from case to case. If the woman marries again and the man is a fasiq - as proven in a court of law, then the child goes to the grandmother, either paternal or maternal over which there is dispute.

[morbius]

Very interesting. Could someone please answer me these two questions:
According to Islam, the mother has more rights to child custody than the father does.
Why then the courts in Arabian counties usually assign children to the father?
However, the non-Muslim mother would have access and visitation rights to her children. Another condition is if the mother remarries then custody automatically reverts back to the father.
But job opportunities for a woman in strict Islamic countries are not very good even today, in the old days woman would be completely dependant on a man. How would she be able to survive without remarrying? Would she be entitled to some sort of support from her ex-husband, as it is the case in the west?

[Abu Abdallah al-Bulghari]

This is very unorthodox opinion. Only young children should be with mothers, after that they should be with fathers.

[Umm Ahmed]

That ruling is in the UAE as well , the child goes to the mother in most cases unless she remarries.
I don't know any family that the children are not with the mother after divorce, usually because the court divides the house in half so they remain next door neighbours.

[ummafnaan]

This is very unorthodox opinion. Only young children should be with mothers, after that they should be with fathers.

Brother Abu Abdullah, Are you calling the Rasul's saw opinion unorthodox? The hadith is clear. Unless she remarries, she keeps the children.