Custody of  the child Part 3

If the woman has not remarried and the child reaches the age of seven years:

1.If the child is male, he may be given the choice between his father and his mother, and he will live with the one whom he chooses, because of the report 

narrated by an-Nasa’i (3496) and Abu Dawud (2277) from 

Abu Hurayrah (may Allah be pleased with him), who said: I heard a woman who came to the Messenger of Allah (blessings and peace of Allah be upon him) when I was sitting with him and said: O Messenger of Allah, my husband wants to take my son away even though he brings me water from the well of Abu ‘Inabah and is of benefit to me.

The Messenger of Allah (blessings and peace of Allah be upon him) said: “Draw lots for him.”

Her husband said: Who is disputing my right to my child?

The Prophet (blessings and peace of Allah be upon him) said [to the child]: “This is your father and this is your mother; take the hand of whichever of them you wish.”

And the child took the hand of his mother, and she took him away.

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

This is the view of the Hanbalis and Shafa‘is.

2. If the child is female, she may also be given the choice, according to ash-Shafa‘i (may Allah have mercy on him).

Abu Hanifah said: The mother has more right to her until the girl gets married or begins to menstruate.

Malik said: The mother has more right to her until she gets married and the husband consummates the marriage with her.

Ahmad said: The father has more right to her, because the father has more right to ensure her wellbeing.

See: al-Mawsu‘ah al-Fiqhiyyah (17/314-317).

#Parents #Children #Sharia

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