Stepfather and Rights of Biological Father

Question

Assalaamu alaykum Mufti Sahib, Hope you’re well. A friend married a lady with 3 daughters, one of whom reached adulthood this year. The ex-husband claims it’s haram for the girls to live with their new stepfather per the Shafi’i mathab, and demands custody despite his history of drug abuse. Queries: 1. Biological father’s rights. 2. Stepfather’s rights. 3. Permissibility of cohabitation. 4. Biological father’s duties. 5. Stepfather’s duties. 6. Custody arrangements. Jazaakumullah

السلام عليكم ورحمة الله وبركاته

 

1. When a man marries a woman who already has daughters of her own, and the marriage is duly consummated, the daughters become what the Qurʾān describes as

[ ربائبكم التي في حجوركم من نسائكم التي دخلتم بهن﴾ [النساء 32﴿

your stepdaughters in your care—those born from women with whom you have consummated marriage. [al-Nisāʾ 23]

2. Such stepdaughters are considered to be maḥram to their stepfather, and as such they are allowed to reside under his roof. The āyah cited above specifically lists the categories of maḥram.

3. The biological father retains the rights as well as duties he had during the subsistence of the marriage. It is only the matter of custody that is affected by the termination of marriage. As such he continues to be responsible for the maintenance of his children, and he will also be his daughters’ walī upon nikāḥ.

4. While the children do owe the stepfather the duty of respect and obedience, he will not replace their biological father in every respect. The stepfather is not responsible for their maintenance and education, nor will he act as their walī upon marriage. Those rights remain with the biological father.

5. Prior to the age of 7 the children will as a rule live with the mother. After they reach the age of 7 the choice of parent with whom they will live is given to the children themselves. They will live with the parent who they choose.

6. If the mother has married a man who is not a close relative of the children, her rights of custody prior to the age of 7 go to her mother, and not directly to the father.

والله تعالى أعلم
And Allāh knows best

(Issued: November 2019)

______________________________

Note: With reference to Point six 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)

 

MJC (SA)

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