السلام عليكم ورحمة الله وبركاته
1. The rights to the custody of a child is dependent on the age and maturity of the child.
2. If the child is independent, usually 9 years and older, in the sense that he or she is able to manage his or her personal affairs such as bathing, dressing, and the like, without the assistance of a parent or guardian, then the child is given the choice as to which parent he or she prefers to live with.
3. If the child requires the assistance of a parent or guardian to manage his or her personal affairs then the mother has the first right in terms of custody.
4. The mother maintains this right as long as she does not marry. If she marries, she loses her right in terms of being most rightful to the custody of the child. This is on account of the following hadith:
حَدَّثَنَا مَحْمُودُ بْنُ خَالِدٍ السُّلَمِيُّ، حَدَّثَنَا الْوَلِيدُ، عَنْ أَبِي عَمْرٍو يَعْنِي الْأَوْزَاعِيَّ، حَدَّثَنِي عَمْرُو بْنُ شُعَيْبٍ، عَنْ أَبِيهِ، عَنْ جَدِّهِ عَبْدِ اللَّهِ بْنِ عَمْرٍو، أَنَّ امْرَأَةً قَالَتْ: يَا رَسُولَ اللَّهِ، إِنَّ ابْنِي هَذَا كَانَ بَطْنِي لَهُ وِعَاءً، وَثَدْيِي لَهُ سِقَاءً، وَحِجْرِي لَهُ حِوَاءً، وَإِنَّ أَبَاهُ طَلَّقَنِي، وَأَرَادَ أَنْ يَنْتَزِعَهُ مِنِّي، فَقَالَ لَهَا رَسُولُ اللَّهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ: (أَنْتِ أَحَقُّ بِهِ مَا لَمْ تَنْكِحِي)
A woman said, “O messenger of Allāh! Indeed, this son of mine, my stomach was a vessel for him, my breast was a quencher for him, my lap was a comfort for him, and his father divorced me and wants to snatch him from me.” The Prophet then said, “You are most rightful to him as long as you do not marry”.
(MUSNAD AHMAD, ABU DAWUD AND OTHERS- CLASSIFIED AS AUTHENTIC)
5. If the mother marries, the next most rightful to the custody of the child after the mother is the mother’s mother. The most rightful after the mother’s mother is the father. [See footnote]
6. The guardian must meet certain conditions in order to be considered a fit guardian and receive custody of the child:
6.1 Islam: The guardian must be Muslim
6.2 Being a major: The guardian must be a major. The child is not placed in the custody of a minor. The child is not placed in the care of someone who requires care.
6.3 Sanity: The guardian must be sane. This is for the same reason mentioned above.
6.4 Religious integrity: The guardian must have a basic level of religious integrity. The child is not placed in the custody of someone who openly transgresses the major prohibitions in Islam such as drinking alcohol, fornication or adultery (zina), theft, etc.
6.5 Ability to take care of the needs of the child: The guardian must be able to manage the child’s affairs. Custody is therefore, not granted to someone with impairments that render him or her unable to fulfil the needs of the child. Such a person may be given custody of the child if he or she has someone under his or her authority, through employment or otherwise, who can manage the child’s affairs.
6.6 Financial responsibility: The guardian must be financially responsible. If the guardian is not financially responsible, he or she might waste the child’s money or the money given to the caregiver to fulfil the child’s needs.
6.7 Safety of location: The area in which the child’s guardian lives must be relatively safe. The child is not placed in an area in which he or she, within reason, fears for his or her life or possessions.
والله تعالى أعلم
And Allāh knows best
(Issued: July 2017)
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Note: With reference to Point five of this fatwa, this is applicable only in cases where the maternal grandmother is either unmarried or married to someone with a right to custody. The husband of the maternal grandmother (the maternal grandfather) does not possess the right to custody unless he happens to be a male heir, such as a paternal grandfather, uncle, or brother.
وﺳﺎﺑﻌﻬﺎ (اﻟﺨﻠﻮ) ﺃﻱ ﺧﻠﻮ اﻟﺤﺎﺿﻨﺔ (ﻣﻦ ﺯﻭﺝ) ﻻ ﺣﻖ ﻟﻪ ﻓﻲ اﻟﺤﻀﺎﻧﺔ ﻓﻼ ﺣﻀﺎﻧﺔ ﻟﻤﻦ ﺗﺰﻭﺟﺖ ﺑﻪ، ﻭﺇﻥ ﻟﻢ ﻳﺪﺧﻞ ﺑﻬﺎ
(الإقناع)
ﻗﻮﻟﻪ: ﻭﻻ ﻧﺎﻛﺤﺔ ﻏﻴﺮ ﺃﺑﻴﻪ) ﺃﻱ ﺑﻤﺠﺮﺩ اﻟﻌﻘﺪ، ﻭﺇﻥ ﻛﺎﻥ اﻟﺰﻭﺝ ﻏﺎﺋﺒﺎ ﻛﻤﺎ ﺻﺮﺡ ﺑﻪ ﻓﻲ اﻷﻡ ﻭﻗﻮﻟﻪ ﻏﻴﺮ ﺃﺑﻴﻪ ﺃﻱ اﻟﻄﻔﻞ ﺃﻣﺎ ﻧﺎﻛﺤﺔ ﺃﺑﻲ اﻟﻄﻔﻞ، ﻭﺇﻥ ﻋﻼ ﻓﺤﻀﺎﻧﺘﻬﺎ ﺑﺎﻗﻴﺔ، ﻭﺻﻮﺭﺓ ﻧﻜﺎﺣﻬﺎ ﻷﺑﻴﻪ ﺃﻥ ﻳﺰﻭﺝ اﻟﺮﺟﻞ اﺑﻨﻪ ﺑﻨﺖ ﺯﻭﺟﺘﻪ ﻣﻦ ﻏﻴﺮﻩ ﻓﺘﻠﺪ ﻣﻨﻪ ﻭﻳﻤﻮﺕ ﺃﺑﻮ اﻟﻄﻔﻞ ﻭﺃﻣﻪ ﻓﺘﺤﻀﻨﻪ ﺯﻭﺟﺔ ﺟﺪﻩ اﻩـ ﺑﺮﻟﺴﻲ اﻩـ ﺳﻢ ﻋﻠﻰ ﻣﻨﻬﺞ اﻩـ ﻋ ﺷ ﻋﻠﻰ ﻣ ﺭ
(حاشية الجمل)
ﻭﺗﺜﺒﺖ اﻟﺤﻀﺎﻧﺔ ﻷﻧﺜﻰ ﻗﺮﻳﺒﺔ ﻏﻴﺮ ﻣﺤﺮﻡ ﻟﻢ ﺗﺪﻝ ﺑﺬﻛﺮ ﻏﻴﺮ ﻭاﺭﺙ ﻛﺒﻨﺖ ﺧﺎﻟﺔ ﻭﺑﻨﺖ ﻋﻤﺔ ﻭﻟﺬﻛﺮ ﻗﺮﻳﺐ ﻭاﺭﺙ ﻣﺤﺮﻣﺎ ﻛﺎﻥ ﻛﺎﻷﺥ ﺃﻭ ﻏﻴﺮ ﻣﺤﺮﻡ ﻛﺎﺑﻦ ﻋﻢ ﻟﻮﻓﻮﺭ ﺷﻔﻘﺘﻪ ﻭﻗﻮﺓ ﻗﺮاﺑﺘﻪ ﺑﺎﻹﺭﺙ ﻭاﻟﻮﻻﻳﺔ ﻭﻳﺰﻳﺪ اﻟﻤﺤﺮﻡ ﺑﺎﻟﻤﺤﺮﻣﻴﺔ
(الإقناع)
(ﻛﻌﻢ اﻟﻄﻔﻞ) ﺃﻱ ﻭﻟﻮ ﻛﺎﻥ ﺃﺑﻮﻩ ﻣﻮﺟﻮﺩا، ﻷﻥ اﻷﻡ ﺣﻴﻨﺌﺬ ﻣﻘﺪﻣﺔ ﻋﻠﻴﻪ
(البجيرمي على الخطيب)
