Praise be to Allaah.
have more right to custody of children than men; in principle custody
belongs to them, because they are more compassionate and more kind,
and they know better how to raise small children, and they are more
patient in dealing with the difficulties involved. The mother has more
right to custody of her child, whether it is a boy or a girl, so long
as she does not re-marry and so long as she meets the conditions of
custody. This is according to scholarly consensus.
conditions of custody are: being accountable (i.e., an adult of sound
mind etc.), being free (as opposed to being a slave), being of good
character, being a Muslim if the child concerned is a Muslim, and being
able to fulfil all obligations towards the child. The mother should
not be married to a person who is a stranger (i.e., not related) to
the child. If one of these conditions is not fulfilled and there is
an impediment such as insanity or having remarried, etc., the woman
forfeits the right to custody, but if that impediment is removed, then
the right to custody is restored. But it is best to pay attention to
the interests of the child, because his rights come first.
period of custody lasts until the age of discretion and independence,
i.e., until the child is able to discern what is what and is independent
in the sense that he can eat by himself, drink by himself, and clean
himself after using the toilet, etc.
the child reaches this age, the period of custody ends, whether the
child is a boy or a girl. That is usually at the age of seven or eight.
regard to the effect of travelling on transferring custody, if the parents
have separated and are disputing custody, any of the following scenarios
may apply to their travelling:
– If one of the parents wants to travel without moving, i.e., he or
she intends to come back, then the parent who is staying put has more
right to the child.
– If one of them wants to travel for the purpose of settling there,
and the new city or the route is dangerous, then the parent who is staying
put has more right to the child.
– If one of them wants to move and settle within the same city, and
the city and the route is safe,the father has right to the child than
the mother, regardless of whether the one who is moving is the father
or the mother.
– If both parents want to travel to the same place, then the mother
should retain custody.
– If the place is nearby so that the father and child may see one another
every day, then the mother should retain custody.
the child reaches the age of independence, the period of custody comes
to an end, and the period of kafaalah or sponsorship of the young begins,
which lasts until the child reaches adolescence or in the case of a
girls, starts her periods. Then the period of sponsorship ends and the
child is free to make his own choices.
Women’s rights to sponsor
children. It appears from the comments of the fuqaha’ that women have
the right to sponsor children in general, and that mothers and grandmothers
in particular have this right. But the scholars differed as to
who has more right to sponsorship if the parents are in dispute and
are both qualified to sponsor the child. The Maalikis and Zaahiris think
that the mother has more right to sponsorship of the child, whether
it is a boy or a girl. The Hanbalis think that boys should be given
a choice, but the father has more right in the case of a girl. The Hanafis
think that the father has more right in the case of a boy and the mother
has more right in the case of a girl. Perhaps the correct view is that
the child should be given a choice if the parents are disputing and
they both fulfil the conditions for sponsorship.
From Wilaayat al-Mar’ah fi’l-Fiqh al-Islami, p. 692