#756: Who takes Custody of a Child in a Case of Divorce?
756 QUESTION:
“I have the following questions.. 1. When the spouse divorced, who should take the custody of the child according to sharia?”
ANSWER:
Alhamdulillāh.
As for the custody of the Child, the Ulamā have explained that if the child is within the age of nursing or is below discerning age, then by agreement, custody of such child is with the mother as long as she is not married and as long as there is no harm on the upbringing of the child or his Dīn in staying with the mother. This is a matter of consensus.
The proof for this is the Hadīth recorded by Imām Ahmad and Abū Dāwud Sulaymān As-Sijistānī – rahimahullāh – from ‘Amr bn Ash-Shu’ayb from his Father from his grandfather that a woman once asked the Rasūl – salallāhu Alayhi Wasallam – saying:
يا رسول الله إن ابني هذا كانت بطني له وعاء، وثديي له سقاء، وحجري له حواء، وإن أباه طلقني وأراد أن ينتزعه مني
“O Messenger of Allāh: this son of mine had my womb as his home, my breasts as his source of provision, my thighs his protection and his father has divorced me and wants to take him away from me.”
Then the Rasūl -salallāhu alayhi wasallam – said:
أنت أحق به ما لم تنكحي
“You are the most deserving of his custody as long as you have not remarried.”
However, this is conditioned on the Maslahah of the Child’s Tarbiyyah. If it is proved that in the remaining of the Child in her custody, there is a threat to the Tarbiyyah of the Child, she may not have custody of him, and Allāh knows best.
Then, the Madhāhib differed as to who takes priority custody of the Child after the mother in case of her death, her marriage or her inability of give care and training to the Child. But they generally preferred the mothers and women custody over the custody of men and this is agreed upon. For many reasons and because women are better positioned for child upbringing than men.
Then, they differed as to when the period of Hadānah (nursing and early dependency) ends.
The Hanafis hold that for a girl, she is free from this early nursing once she reaches the age of nine which is the age when the appetites begin to manifest. She may then be United with her father.
The Mālikis hold that she remains with her mother until she is at marriageable age.
The Shāfi’ī Imams hold the same for a boy and a girl that the period ends when the child has reached the discernable age. This is usually estimated to the age of seven. At this age, he/she is given to choose between the father and the mother or whosoever custody he/she prefers. There is a Hadīth to this effect.
As for the Hanbalis, their position is same with the Shāfi’iyyah except that they hold that in the case of a girl she is not given the option of choosing between the father and the mother. Rather she is given to the father once she is seven. The reason for this is that at that age she begins to approach Khitbah which is by right the prerogative of the father.
However, what is summary in all of this is that the matter of Hadānah (Child Custody in Early Childhood) is a Maslahah issue that is conditioned as to what is best for the Dīn and Dunya of the Child and the Qādī who sits and decides on the matter of custody of the Child after divorce must consider where is best for the custody of the Child and Allāh knows best.
Bārakallāhu Fīkum.
Jazākumullāhu Khayran.
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