5 Must-know Islamic Rulings for Child Custody

Parents must approach custody matters with a spirit of cooperation and integrity, avoiding the use of children as tools for revenge or manipulation.

The issue of child custody following separation is one of the most prevalent challenges in many societies, both in the East and the West. This summary seeks to address the matter within the context of Muslim communities, whether in Islamic countries or in the West.

The root of this issue generally stems from two main factors:

Firstly, a weakening of eeman and the observance of Allah, leading one party to use the children as a means to harm the other, out of spite, revenge, financial extortion, or a desire to restrict the other party’s freedom and decision-making.

Secondly, ignorance of Islamic law and its objectives regarding custody.

In light of this, I have compiled a concise summary of the key issues surrounding this topic, presented as five fundamental principles, with the hope that it will be beneficial to the reader.

Principle One: Islamic Law Does Not Favour One Party Over Another.

Islamic rulings are designed to serve the interests of people in both this world and the Hereafter. These rulings do not consider a person’s gender, skin colour, social class, or any other such factors, but rather focus on the overall benefit of humanity. The Andalusian scholar Al-Shatibi stated in Al-Muwafaqat (1/199): “It is understood from the Shariah that it was established for the benefit of people; every obligation is either to prevent harm or to bring benefit, or both.”

Muslim scholars have emphasised that the Shariah was established to protect a person's religion, life, intellect, lineage, and wealth.

Principle Two: Custody Rulings Primarily Consider the Best Interests of the Child, Not the Custodian’s Identity or Gender.

When examining the Shariah’s rulings on custody and who should be the custodian, it is clear that the primary concern is the best interests of the child, not the interests of the custodian. This is a consensus among scholars, who have clearly and explicitly stated this principle.

This is evident in the division of the custody period based on the child’s age:

1. The first stage, when the child is entirely dependent on others, ends when they are capable of managing their own needs.

2. The second stage, when the child has developed some understanding but still requires care and guidance.

There is no disagreement among scholars that, in the first stage, custody is given to the mother, with further details provided under the next principle.

Scholars have differed in determining the age at which the first stage of custody ends. Some, like the Hanbali scholars, believe that custody ends at the age of seven, while the Shafi’i scholars set it at eight. At this age, the child is given the choice to decide between living with their mother or father.

Others, such as the Hanafi scholars, hold that custody remains with the mother until the child reaches puberty if the child is a girl, or until the boy is capable of managing his own affairs, without specifying an exact age. Some Hanafi scholars have estimated this age to be seven or eight.

Meanwhile, Maliki scholars argue that custody continues with the mother until the child reaches puberty if the child is a boy, and until marriage if the child is a girl.

All these opinions are considered scholarly interpretations (ijtihad), as there is no explicit text from the Prophet (peace be upon him) regarding this matter. These views are based on what the scholars believe serves the best interests of the child, with considerations of justice and wisdom.

Principle Three: The Mother is Prioritised in Custody Under Two Conditions.

The best interests of the child necessitate that the mother be the primary custodian. This benefit is so evident that it is beyond dispute. However, scholars have attached two important conditions to the mother’s right to custody to ensure the child’s welfare:

1. The mother must be deemed fit for custody, meaning that her care will fulfil the primary purpose of custody: the child’s welfare, including their preservation, care, and the fulfilment of their psychological, intellectual, and physical needs.

   Imam Malik Ibn Anas (Died 179 AH) and Imam Al-Layth Ibn Sa’d (Died 175 AH) stated: If the mother is not in a secure and protective environment, or if she is deemed unsuitable, the custody goes to the father.

2. The mother’s right to custody is nullified if two factors arise: her marriage to someone other than the child’s father, or her relocation to a different country from the original place of custody, where the father or the child’s paternal relatives reside, in the event of the father's death.

The mother’s marriage:

The majority of scholars have ruled that a mother’s marriage nullifies her right to custody. There are six opinions on this matter, one of which is that the mother’s right is not nullified if she remarries, as argued by Abu Muhammad Ibn Hazm, the Andalusian scholar (died AH 456), although his reasoning is shaky and requires further discussion in another article.

One of the proofs used by the majority is a hadith reported by Abu Dawood from Abdullah Ibn Amr, in which a woman came to the Prophet (peace be upon him) and said, “My son was in my womb, my lap was his shelter, and my breast was his nourishment, but now his father claims he will take him away from me.” The Prophet replied, “You are more entitled to him as long as you do not remarry.”

The Andalusian scholar Ibn Hazm, however, claimed this Hadith to be unauthentic, a claim the scholars have rejected.

The mother’s relocation:

The second factor that nullifies the mother’s right to custody is if she relocates to a distant place from the father’s residence, making it difficult for the father to visit his child and oversee their upbringing and discipline.

This is a summary of the views held by the Maliki, Shafi’i, and Hanbali schools, which represent the majority of scholars.

However, the Hanafi scholars argue that the mother’s right to custody is not nullified if she relocates with the child to another town, provided it is not too far for the father to visit the child and return home in the same day. If the new location is distant, the mother cannot move there with the child, as it would separate the child from their father, who is essential for their upbringing.

An exception to this, according to Hanafi scholars, is if the mother relocates to her original home country, where the father had married her, provided it is safe.

For instance, Ahmed, who is from England, married Mona, who is from Morocco. They initially lived in Morocco for a few months before moving to England, where they have since settled and started a family.

According to the Hanafi School of thought, in the event of a divorce, Mona would be permitted to return to Morocco with their children, even if it means they would be distanced from their father. The rationale behind this view is that by agreeing to marry and live in a woman’s home country, the husband implicitly consents to the possibility of raising their children there.

Principle Four: Custody does not equate to absolute guardianship.

As stated in the second principle, the foundation of custody in Islamic law is the best interests of the child. This principle aligns with the primary objective of Islamic legislation, which is to achieve the welfare of the people in this life and the next, as explained in the first principle.

From this perspective, the fact that the mother is the primary custodian does not mean that she has absolute guardianship or that she can independently make decisions regarding the child’s present and future life. 

According to Islamic law, guardianship belongs to the father, who gives the child their name and lineage and oversees their marriage if the child is female. This is undisputed among scholars, with abundant evidence from both the Quran and Sunnah. 

In Hashiyat Nihayat al-Muhtaj (a Shafi’i text), it is stated, “The right to name the child belongs to the guardian, whether the father, even if he cannot provide financially, or the grandfather.” This is similarly affirmed by other schools of thought.

Thus, custody should not be viewed as absolute guardianship but as the right to care for and protect the child. At the very least, there should be dialogue and agreement between the parents on what serves the child’s best interests.

Principle Five: Custody Should Never Be Used as a Tool for Vengeance or Harm

Custody must be exercised with the child’s welfare in mind and should never be used to harm or punish the other parent. Using custody to create obstacles for the father or to inflict emotional harm is unjust to both the father and the child, violating the principles of fairness and the child’s best interests, which is considered a major sin in Islam.

Scholars who support the father’s right to relocate his child have stated that this right is nullified if the father’s intention is to harm the mother rather than to serve the child’s best interests. Similarly, the mother has no right to use custody, legal avenues, or family influence to prevent the father from seeing his child or to create obstacles for him, forcing him into legal battles as a form of injustice. Such behaviour has caused devastating consequences for many families, including the children.

I may delve into this further in a separate article, drawing from personal experience.

Some mothers even go so far as to lie to the child, claiming that the father abandoned them or doesn’t care about them, among other falsehoods and schemes. This is blatant injustice by any standard.

By doing this, the mother harms and wrongs the father, which is a major sin. She also betrays the trust of Almighty Allah in caring for her child by fostering enmity between the child and their father, which is also a major sin. Moreover, she raises the child in an atmosphere of hatred and animosity.

I know of a Muslim man who, in a similar situation, lost his mind and then took his own life. This reflects a surrender to negative emotions, a lack of awareness, and, above all, a lack of fear of Allah and a willingness to commit injustices.

A child is not an object to be used by one parent to harm the other; rather, they are a trust that both parents are responsible for and will be held accountable for one day before Allah.

Instead of making excuses to justify injustice and putting restrictions, the legal custodian must do their best to make the connection between the other parent and the children smooth and easy.

The Maliki scholar Al-Baji stated in Al-Muntaqa Sharh al-Muwatta:

“If the child is in the mother’s custody, he should not be prevented from going to his father to learn from him, then return to her. This was narrated by Ibn Habib from Ibn al-Majshun. The reasoning is that the child needs his father to teach and discipline him, to entrust him to someone who can teach him the Quran, writing, crafts, and proper conduct. These are all things the father is better suited to provide, so the father has more right to the child at times when he needs education.

This does not negate the mother’s custody, as it is concerned with matters such as providing overnight stay, preparing meals, washing clothes, making the bed, clothing, and overseeing these needs. The child cannot do without someone to take care of these needs, so each parent has a rightful share in the child’s upbringing according to what benefits them.”

Conclusion:

In summary, the issue of child custody within the framework of Islamic law is deeply rooted in principles of justice, fairness, and the best interests of the child. Islamic rulings prioritise the child’s welfare above all, ensuring that custody decisions are made without bias towards either parent. 

The mother is often given priority in custody, but this is conditional on her ability to provide a secure and nurturing environment. Moreover, custody is not an absolute right but a responsibility that must be exercised with the child’s well-being in mind.

It is crucial for both parents to approach custody matters with a spirit of cooperation and integrity, avoiding the use of children as tools for revenge or manipulation. 

By adhering to the principles of Islamic law and striving to maintain a positive relationship between the child and both parents, we can ensure that the child grows up in a stable, loving environment that supports their development and well-being.

Ultimately, the decisions made in custody cases will have a lasting impact on the child’s life. Therefore, it is imperative that these decisions are guided by wisdom, compassion, and a sincere commitment to fulfilling the trust that Allah has placed upon the parents.

Now, here is a question for you; Are there any important points or topics you think I should address in a separate post?

Hassan Boulaghrasse