When custody is over
This article focuses on the decision to be taken when the term of custody of a child is over. An agreement should be reached with the approval of the child’s father or custodian, if not then the child is given the choice of either parent.
When custody is over
When the term of custody is over, if the child’s father and custodian agree to the child staying with either of them, their agreement is endorsed. If they do not come to an agreement, then the child is given the choice. Whoever of them is chosen by the child has the stronger claim. A woman complained to the Prophet (peace be upon him) that her former husband wanted to take their child from her.
:The Prophet (peace be upon him) said to the child
‘This is your father and this is your mother. Take either one’s hand.’ The child took his mother’s hand, and she took him away.’
(Related by Abu Dawud)
All scholars are in agreement that there is no rigid rule on which parent has an absolute right to the child. Indeed, a parent who is known to be negligent of his duties cannot be given priority over the one who takes good care of the child. What is important in all this is the interests of the child and who takes better care of it. Ibn al-Qayyim said:
To whomever we give priority, whether on grounds of the child’s choice, or drawing lots, or on personal basis, we only give priority when the child’s interests are fulfilled in that way. If the mother is the better carer and she is more mindful of the child’s needs, she is placed ahead of the father. In this case, we pay no heed to whose lot is drawn, or to the child’s choice, as the child’s choice is based on where more fun is available. If the child chooses the parent who is likely to provide more fun, the choice is discounted. The child is given to the parent who takes better care of it. Islamic law does not approve of anything else If the mother ensures that the child goes to school and learns, while the child prefers to play with its mates and the father facilitates this, the mother has more claim to the child, without going to the process of choice or drawing lots. The reverse is also valid. The same applies in any situation when one parent defaults on what God commands with regard to the child while the other parent observes these. The latter is given priority Our teacher, Ibn Taymiyyah, said: ‘If either parent neglects educating the child and the duties God has imposed on him, that parent is disobedient of God and has no authority over the child. Indeed, anyone who is neglectful of his duties towards the child has no authority. That person is either removed from being the child’s guardian and the guardianship is given to someone else who will fulfil his duties, or he is given an assistant to fulfil these duties. What is important is to obey God and His messenger in ensuring the child’s good upbringing, as far as this is possible.
- Sabiq, Fiqh al-Sunnah, vol. 2, pp. 342–51.