Custody of  the child Part 2

The mother has more right to custody of her children until the age of seven, so long as she has not remarried, because of 

the report narrated by Ahmad (6707) and Abu Dawud (2276) 

from ‘Abdullah ibn ‘Amr, who said: A woman said: O Messenger of Allah, my womb was a vessel for this son of mine, my breast gave him to drink, and my lap was a protection for him. But now his father has divorced me and wants to take him away from me. The Messenger of Allah (blessings and peace of Allah be upon him) said to her: “You have more right to him so long as you do not remarry.”

This hadith was classed as hasan by al-Albani in Sahih Abi Dawud.

But if she remarries, custody passes to the next in line.

Concerning that there was a difference of opinion among the jurists:

Some of them thought that it passes to the mother’s mother. This is the view of the majority in the four madhhabs.

Some of them thought that it passes to the father. This is the view favoured by Shaykh al-Islam Ibn Taymiyah and Ibn al-Qayyim.

See: al-Mawsu‘ah al-Fiqhiyyah (17/302) and ash-Sharh al-Mumti‘ (13/535).

If we say that custody passes to the father of the child, if he allows the child to remain with his mother who has remarried, and she is fit to take care of the child, and her second husband agrees to that, there is nothing wrong with it.

Similarly, the mother’s mother may give up custody to her daughter who has remarried.

Shaykh Ibn ‘Uthaymin said: Custody is the right of the one who can take care of the child, but it is not a duty.

Based on that, if he or she wants to give up custody to the next in line, it is permissible for him or her to do that."

(Ash-Sharh al-Mumti‘  13/536).

#Parents #Children #Sharia

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