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Custody of Children after divorce

Child-Custody-Georgia

When a husband files for a legal divorce, he appoints the court to divorce his wife on his behalf. Islamically, a husband has a right to divorce his wife either himself or by appointing someone else as his representative to divorce his wife on his behalf. It is not necessary that this 'representative' be a Muslim, as is the case in filing/petitioning for a legal divorce through the courts.


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Child Custody after Divorce

By Shaykh (Mufti) Muhammad Ibn Adam (HA)

Question:

1What are the Islamic duties of a father, if he divorces or separates from the wife, who has a child?

 

2Who has the right to the child, the father or mother?

 

3 Who is responsible for the financial responsibility of the child? When they are divorced?

4 What are the responsibilities or duties of the father, when he divorces is wife and she takes the child. And he gets married to another woman. And his divorced wife stays single or gets married. Does the father forget his child from his previous marriage and carry on with his new life and family or must he visit and keep contact with his child in his previous marriage?

Basically these are some of the key questions I need to ask, but can you address what the Islamic Shariah says about these matters, ‘about when the husband divorces or separates form his wife and they have a child and everything related to that’. The father’s role in the future of his child from his previous marriage?

Answer: In the Name of Allah, Most Compassionate, Most Merciful,

If and when a marriage unfortunately comes to an end, the problems of the parties involved should not in any way affect the children. Children are a trust (amanah) from Allah Most High and they should be treated and looked after in a proper manner.

They have many rights, of which two are of utmost importance: to receive proper care and love, and the other proper upbringing (tarbiyah). These rights of a child can not be fulfilled except with the joint endeavour of the parents. The love, care and attention of the mother is just as important as the upbringing and training of the father.

In light of the above, divorce should definitely be avoided as much as possible, especially in the case where there are children involved. The Messenger of Allah (Allah bless him & give him peace) said:

"Divorce is the most hated of all lawful (halal) things in the sight of Allah." (Sunan Abu Dawud, no. 2178)

However, if divorce did take place, and both parties demand their rights, then the right of custody will be in the following way. In should be remembered here that there is nothing wrong in making a mutual arrangement, as long as there is no objection from those who have a right to custody:

The mother has a right of custody for a male child until the child is capable of taking care of his own basic bodily functions and needs, such as eating, dressing and cleaning himself. This has been recognized at seven years of age.

Imam al-Haskafi (Allah have mercy on him) states:

"The custody of a male child is the right of the mother until the child is capable of taking care of his own self. This has been approximated at seven years of age, and the Fatwa (legal verdict) has been issued on this age, as normally children are able to take care of themselves at this age." (See: Radd al-Muhtar, 3/566)

In the case of a female, the mother has this right of custody until she reaches puberty. This has been declared at nine years of age. (al-Mawsili, al-Ikhtiyar li ta'lil al-mukhtar, 3/237)

The right of custody will be taken away from the mother if she:

1 Leaves Islam,

 

2 Openly indulges in sins such as adultery and there is a fear of the child being affected,

 

3 She does not attend to the child due to her leaving the house very often,

 

4 She marries a non-relative (stranger) to the child by which the child may be affected,

 

5 She demands payment for the upbringing of the child if there is another woman to raise the child without remuneration.

 

In the above cases (when the mother no longer has the right to custody), this right then transfers to the following, in order:

 

1 Maternal grandmother, and on up;

 

2 Paternal grandmother, and on up;

 

3Full sisters,

 

4 Maternal half sisters,

 

5 Paternal half sisters,

 

6 Maternal aunts,

 

7 Paternal aunts,

 

After all the avenues of the female have been exhausted as explained by the Jurists, the males have the right of custody in the following sequence:

 

1 Father,

 

2 Paternal grandfather,

 

3 Real brother,

 

4 Paternal brother,

 

5 Maternal brother,

 

The reason for this is that, in the early years, the mother and the other female relatives are more suitable for raising the young child (regardless of sex) with love, mercy, attention, and motherly care. The male child after reaching the age of understanding (7) is in need of education and acquiring masculine traits, which is why he is then transferred to the father. The female child, after reaching the age of understanding is in need of being inculcated with female traits, which she receives by living with her mother. After reaching puberty, she is in need of protection which the father offers.

In a Hadith recorded by Imam Abu Dawud in his Sunan, the Messenger of Allah (Allah bless him & give him peace) said to a woman who complained that her husband was intending to take her child away from her:

"You are more rightful of the child as long as you don't marry." (Sunan Abu Dawud, no. 2276 & Mustadrak al-Hakim, 2/207)

It should also be remembered that after the transferral of custody from the mother to the father, the boy remains in the custody of the father until puberty, at which point, if he is mature and wise, he is free to choose with whom to live, or to live on his own. As for the girl, custody remains with the father until she marries. (See: Qadri pasha, Hanafi articles, 498 & 499)

Irrespective of who (mother/father) has the right of custody, the other party has visitation rights according to mutual understanding and consent. Generally, the party having the rights of custody use the child as a weapon to punish the other party by depriving them of visitation rights. This is totally against the concept of Islam and a severe, brutal and grave sin indeed, and also very harmful to the child. Unfortunately, many so called "religious" people are also involved in this heinous act.

At all times, the father of the child is responsible for maintaining the child; in the case of a female, until she marries; while in the case of a healthy male, until he reaches maturity. In the case of a disabled child (male or female) the father is permanently responsible.

When the mother has the rights of custody but does not have a shelter to stay in with the child, the father must provide shelter for both. (See: Radd al-Muhtar of Ibn Abidin).

With the above, I hope all your questions have been answered.

And Allah Knows Best

[Mufti] Muhammad ibn Adam

Darul Iftaa

Leicester , UK


Can my Ex-Wife move to another Country with my Child?

By Shaykh (Mufti) Muhammad Ibn Adam (HA)

Question: I live in England and my ex-wife is from Toronto, Canada. Unfortunately, we recently underwent a divorce. She left England with our child to her home country without my permission. I am not able to provide my child with any support, care and security. I am unable to take care of his proper upbringing, schooling, and other guardianship duties. I tried moving there for the sake of my child but I can not move to that country myself because I am not allowed to work there.

If she moves here, I can provide her with living. But while she is there, and my son is raised there, he will be deprived of fatherly care and guardianship.
I want to know whether Islamically she is allowed to remain there without my permission. Can she let the child forgo his fatherhood care, security and support just because his mother wants to live and raise him in her home country?

Answer: In the Name of Allah, Most Compassionate, Most Merciful,

As explained in previous answers, the mother has a right of custody over a male child until he is capable of taking care of his own basic bodily functions and needs such as eating, dressing, and cleansing himself. This has been determined at seven (Islamic) years of age, since children are normally able to take care of themselves at this age.

From the age of seven Islamic years till he attains puberty, the father has a right of custody over him. After puberty, the boy, if he is mature and wise, can choose to live with whosoever he wishes, or live on his own.

In the case of a female child, the mother has a right of custody over her until she reaches the age of puberty (i.e. she starts menstruating). This has been approximated at nine (Islamic) years of age. Thereafter, the father has a right of custody over her until she marries. (Ibn Abidin, Radd al-Muhtar ala 'l-Durr al-Mukhtar 3/566, Qadri Basha, Hanafi articles 498 & 499 & al-Mawsili, al-Ikhtiyar li ta'lil al-Mukhtar 3/237)

It was also explained previously that irrespective of who from the mother and father has custody-rights, the other party is entitled to the right of visitation according to mutual understanding and agreement. It is unlawful and a grave sin to deprive the other party of their visitation right.

In view of this very reason, and also in view of the fact that the father is responsible for the proper upbringing (tarbiya) and financial maintenance of the child, the jurists (fuqaha) have outlined rules in regards to whether the mother (during her period of custody) is allowed to move with the child to another region or not.

After a lengthy and somewhat tiresome discussion on the subject by Hanafi Imams: Tumurtashi, Haskafi and Ibn Abidin (may Allah have mercy on them all) in Radd al-Muhtar ala 'l-Durr al-Mukhtar Sharh Tanwir al-Absar, Imam Ibn Abidin himself summarized the juristic ruling with the following:

"In clear and concise terms it could be said: A divorced woman is permitted to move (khuruj) with the child from a village to a nearby town/city, but not vice versa (i.e. from a town/city to a nearby village). And [she is permitted to move with the child] from one city to another city provided it is her hometown and he (the father of the child) had contracted marriage with her there..." (Radd al-Muhtar 3/570)

A few lines prior to the above text, he states:

"Two conditions are indispensable for the permissibility of [the mother of the child] moving to a distant city: It being her hometown, and the marriage being contracted there." (Ibid)

Likewise, Shaykh Muhammad Qudri Basha explains in his standard codification of Hanafi personal law, al-Akham al-Shar'iyya fi 'l-Ahwal al-Shakhsiyya that the mother is not allowed to move with the child without the father's permission to a distant town/city, unless it is her hometown and he married her there, in which case she is permitted to move there without his consent, even if the town/city is distant from the father's place of residence.

He further states that if where she intends to move is her hometown but the marriage was not contracted there, or the marriage was contracted there but it is not her hometown, then in both cases, she is not permitted to move there with the child without the child's father's permission, unless the place is nearby to the residence of the father in a manner that he is able to visit his child and return home before night. (See: al-Akham al-Shar'iyya fi 'l-Ahwal al-Shakhsiyya, Item no 393)

So, in view of these texts of the Hanafi School, we may conclude by saying that if the (divorced) mother, during her period of custody, wants to move with the child to a nearby city or town where the child's father is able to come, visit the child, and return home before night-time, she can do so without the father's permission in all situations. If, however, she desires to move to a distant city or town where the child's father is not able to come, visit the child, and return home before night-time, then she can only do so provided it is her hometown and provided her marriage with the child's father was contracted there.

As such, if Toronto is your ex-wife's hometown and your marriage to her was contracted there, then she is free to move there with your child without your consent. However, such issues are best resolved through mutual understanding, regard for one another, tact, love, and keeping the child's interests in mind. If she does decide to move there with your child, both of you should try and come to some sort of mutual arrangement where the child is sent to live with you for some time during the year, for example.

And Allah Knows Best

[Mufti] Muhammad ibn Adam

Darul Iftaa

Leicester , UK