According to Madhhab:
I have a few questions pertaining to child custody after a divorce.
Would it be possible to assist me?
Question: After a divorce, who is entitled to custody of the children?
Answer: The mother has the right of custody over her son/s upto the age of seven and over her daughter/s upto the age of nine. Once the boys turn seven and the girls nine, then the father, will be awarded custody over them.
During the period that the mother is awarded custody of the children, she will retain that right on condition that she does NOT, in the interim, get married to a "Ghair-Mahram" (person with whom marriage is permissible) of the children.
If she happens to get married to such a "Ghair-Mahram", she will lose her right of custody and this right will then devolve upon the children’s maternal grandmother, paternal grandmother, maternal aunt and paternal aunt, in that order of sequence.
However, both parents have visitation rights when the children are not in his/her custody. Visitation rights should be mutually agreed. Apart from the general rule, the overwhelming advantage of the children also plays an integral part in determining the rights of custody.
والام والجدة احق بالغلام حتى يستغني ، وقدر بسبع سنين
والام والجدة احق بالجارية حتى تحيض ( الفتاوى العالمكيرية ج1 ص 456)
And Allah Knows Best
1.In accordance with the above, do the baaligh children have a choice in the matter? If they do, how does it work and how does it affect the financial obligations of the father?
2. Would a father be considered incapable of custody in the following instances:
1. He has admitted to smoking dagga but says that he does not anymore and has a clear drug test.
2. He has stolen all the children's savings from their accounts.
3. He encourages the children to lie and steal
4. He does not ensure a deeni upbringing.
3.Does shelter have to be provided for a child under 7, who is in the custody of the mother? What should be provided in this case?
4.If the father gave permission for the children to reside with the mother, what are his financial obligations in that respect.
5.Can he change his mind and then decide that he wants to keep the children?
6.Can the mother then insist on keeping the children?
If the mother then insists on keeping the children, based on the 4 points above, what will the financial obligations be on the father?
7. What happens in a case where both parents follow different Mazhabs?
1. As per Islamic law, custody of a child, in the case of separation between the spouses, revolves around both parents, depending on the age and gender of the child. In the case of a boy, the mother is entitled to custody until the age of seven, and thereafter the right of custody is transferred to the father. As for a girl, the mother is entitled to custody until the age of nine, which is subsequently transferred to the father. However, irrespective of which parent has custody, the other parent should be afforded visitation rights.
After reaching the age of puberty, the children have the right to choose and decide between both parents with whomsoever they want to live. However, it is more preferable that the children live with that parent where the Dīnī environment is more appropriate for them and where their complete Dīnī upbringing can be done in the best way.
As with regards to the maintenance of the children, the father is responsible for the maintenance of his children. In the case of a boy, the father is responsible for his maintenance until he reaches the age of puberty. Thereafter, the boy must earn for himself. However, If the father wishes to continue providing for the boy even though he can earn for himself, this will be a favor of the father upon the child, but if the boy has no wealth in his possession and is uncapable of earning for himself, the father will still be responsible for his maintenance. In the case of a girl, the father is responsible for her maintenance until she gets married; provided that she does not have any wealth in her possession.
2. The jurists have mentioned that the custodian of the child should be reliable and a person that abstains from all forms of evil and transgression. If the custodian is found to be transgressing the laws of Sharī’ah such as being involved in adultery, listening to music, theft, pornography, substance abuse, not ensuring a Dīnī upbringing etc. or the custodian is found unreliable in undertaking the responsibility (of custody), he\she will be disqualified and the right of custody will be moved over to the party replacing the custodian.
3. Yes, shelter must be provided for a child under the age of seven who is residing with the mother. The father is responsible for his maintenance, which includes his food, drink, shelter, clothing and school fees etc.
4. If the father allows the children to reside with the mother, he is still responsible for the children’s maintenance. The father is responsible for all the necessities of the children, which include, their food, drink, shelter, clothing and school fees etc. Yes the mother can share the shelter with the children without any fee.
5. Yes, the father has the right to change his mind and take the children back into his care provided that he is reliable and responsible in taking care of the children, and he does not transgress the laws of Sharī’ah.
6. The mother cannot insist on keeping the children if the father demands back his right to keep the children under his care. However, if the mother insists on keeping the children based on the fact that the father is involved in substance abuse, is guilty of theft, is not responsible in bringing up the children, or doesn’t ensure a Dīnī upbringing for the children, the maintenance of the children will still be upon the father.
7. If both parents follow different Madhā-hab, the case will be presented to a Qādhī (an Islamic Judge), who will decide who has the right of the custody of the children. In the case where there is no Qādhī (Islamic judge), the case may be presented to the Jamiat-ul-‘Ulamā, who will then decide who has the right of custody.
AND ALLAH TAÁALA ALONE IN HIS INFINITE KNOWLEDGE KNOWS BEST
ANSWERED BY: Zaid Mahammad
CHECKED AND APPROVED BY: Mufti Muhammed Saeed Motara Saheb D.B.
Islamic Date:10 Muharram 1440
English Date: 20 September 2018