Which parent should keep the child after divorce ?

[shahpesh]

Salaam

Which parent should keep the child after divorce ? I am divorced and have a 5 year old daughter who is living with her mother. If her mother intends to marry in future , i'll want her to let my daughter live with me. What Islam says about children under such conditions ?

[deen1984]

Re: Which parent should keep the child after divorce ?

Question about custody of children

My question is about custody of children. I know that if a couple gets divorced than the mother has more right to the children who have not yet reached the age of independence, but if she remarries than the father has more right. My question is if the father of the children does not fulfil his financial responsibility towards the children does he still have the right to take them away from the mother? In the particular situation I am speaking of the man has demonstrated that he is able to provide, because he has remarried and has had a child and is supporting that child, but he is not supporting his two children from the previous marriage. He tells their mother that if she marries again he will take the children, is this right?.

Praise be to Allaah.

Firstly:

One of the matters on which there is scholarly consensus is that the woman is more entitled to custody of the child so long as he has not reached the age of discernment, as the child at that stage needs the kind of compassion and care that only women can give, but this right is forfeited if the woman remarries, because she will be distracted by her new husband from taking care of her child, and because there is a conflict of interest between the child and the new husband. Ibn al-Mundhir (may Allaah have mercy on him) narrated that there was scholarly consensus that the mother’s right to custody is forfeited if she remarries.

See: al-Kaafi by Ibn ‘Abd al-Barr (1/296); al-Mughni (8/194).

This is indicated by the hadeeth of ‘Abd-Allaah ibn ‘Amr (may Allaah be pleased with him) according to which a woman said: O Messenger of Allaah, my womb was a vessel for this son of mine, and my breasts gave him to drink, and my lap was a refuge for him, but his father has divorced me and he wants to take him away from me. The Messenger of Allaah (peace and blessings of Allaah be upon him) said to her: “You have more right to him so long as you do not remarry.” Narrated by Ahmad (6707) and Abu Dawood (2276); classed as hasan by al-Albaani in Saheeh Abi Dawood, and classed as saheeh by Ibn Katheer in Irshaad al-Faqeeh (2/250).

Secondly:

Maintenance of children is obligatory upon the father according to scholarly consensus, whether he keeps his wife or divorces her, and whether the wife is poor or rich. So she is not obliged to spend on the children if the father is around.

If the children are in the custody of a divorced woman, then their father must support them, and the mother who has custody of a child who is still breastfeeding has the right to ask for payment for nursing the child.

Maintenance of children includes accommodation, food, drink, clothing and education, and everything that the child needs, and is to be based on what is reasonable, paying attention to the husband’s situation, because Allaah says (interpretation of the meaning):

“Let the rich man spend according to his means; and the man whose resources are restricted, let him spend according to what Allaah has given him. Allaah puts no burden on any person beyond what He has given him. Allaah will grant after hardship, ease”

[al-Talaaq 65:7]

This varies from one country to another and from one person to another.

If the husband is rich then he must spend according to his wealth, and if he is poor or of moderate means, then he must also spend according to his means. If the parents agree upon a specific amount on money, whether it is great or small, then that is up to them. But in the case of dispute, the one who should decide about that is the qaadi (judge).

It is permissible for a divorced woman to ask her ex-husband for payment for breastfeeding the child, according to scholarly consensus.

Ibn Qudaamah (may Allaah have mercy on him) said in al-Mughni: (The expenses for) breastfeeding the child are to be borne by the father only, and he has no right to force the mother to breastfeed him if she is divorced, and we know of no difference of opinion concerning that. End quote from al-Mughni (11/430).

He also said: If the mother asks for payment at the usual rate for breastfeeding him, she is more entitled to that, whether the father finds someone else to breastfeed him for free or not. Al-Mughni (11/431).

Shaykh al-Islam Ibn Taymiyah (may Allaah have mercy on him) said: With regard to payment for breastfeeding, she is entitled to that according to scholarly consensus, as Allaah says (interpretation of the meaning):

“Then if they give suck to the children for you, give them their due payment”

[al-Talaaq 65:6].

End quote from al-Fataawa al-Kubra (3/347).

Thirdly:

With regard to custody – as defined by a number of scholars – it means taking care of the one who has not reached the age of discernment and cannot live independently, and raising him in accordance with his best interests and protecting him from anything that may harm him. Rawdat al-Taalibeen (9/98). What is meant is taking care of the small child and looking after him. So the main issue of custody is taking care of the interests of the child. Hence if the father refuses to undertake this duty towards the child, which includes maintenance, then he is sinning, and forfeits his right to custody. It says in al-Rawdah al-Murbi’: The child should not stay with one who does not protect him and take care of him, because that is contrary to the purpose of custody. Al-Rawd al-Murbi’ (3/251).

Ibn Qudaamah al-Maqdisi said: Custody is aimed at looking after the child, so it should not be given in a way that will be detrimental to his welfare and his religious commitment. Al-Mughni (8/190).

Ibn al-Qayyim said: If we show precedence to one of the parents, we must pay attention to how he looks after the child. Hence Maalik and al-Layth said: If the mother is not in a safe place or she is not of good character, then the father has the right to take the child from her. Similarly in the well known report from him, Imam Ahmad said that it depends on his ability to take care of the child. If he is careless or unable to do that, or is not of good character, or he is immorall and the mother is different from him, then she undoubtedly has more right to take the daughter. Our Shaykh said: If one of the parents fails to educate the boy and raise him in accordance with Islamic teachings, then he is sinning and has no guardianship (wilaayah) over him. Anyone who does not do his duties as a guardian has no guardianship. He should either be dismissed as the guardian and replaced by someone who will do what is required, or someone else should be appointed with him who will do what is required along with him, because the aim is to obey Allaah and His Messenger according to one’s ability. … If the father marries a woman who does not take care of his daughter, and her mother is better able to take care of her than this co-wife, then custody should definitely be given to the mother. Zaad al-Ma’aad (5/424).

Shaykh ‘Abd al-Rahmaan al-Sa’di said: But if one of them neglects their duties with regard to custody and care of the child, then he forfeits his guardianship and the other should be appointed instead. Al-Fataawa al-Sa’diyyah (p. 535).

Based on this, if the father refuses to spend on his children’s maintenance, he forfeits the right to custody, even if his refusal is aimed at hurting the mother. This indicates that he is not to be trusted to take care of his children’s interests. The mother has the right to ask him in court for maintenance of his children.

And Allaah knows best.
Islam Q&A

[shahpesh]

Re: Which parent should keep the child after divorce ?

JazakAllah for the reply but i am still not clear. So that means if a mother gets married again after divorce she loses the right on her child regardless of the father being single or married assuming the father has been fullfiling all his duties towards his child ? I have heard that father cannot take their children unless they are 12 years old (Pakistani Law, which is not necessarily Islamic) . Can anyone from Pakistan tell me which parent gets the custody of the child specially in such a case where father is a dual national and mother is Pakistani national and the child is only 5 and mother or father choose to remarry after divorce ?

[Ebony]

Re: Which parent should keep the child after divorce ?

You'll have to ask a lawyer regarding the situation in Pakistan regarding child custody.

[n_n_n]

Re: Which parent should keep the child after divorce ?

One of the matters on which there is scholarly consensus is that the woman is more entitled to custody of the child so long as he has not reached the age of discernment, as the child at that stage needs the kind of compassion and care that only women can give, but this right is forfeited if the woman remarries, because she will be distracted by her new husband from taking care of her child, and because there is a conflict of interest between the child and the new husband. Ibn al-Mundhir (may Allaah have mercy on him) narrated that there was scholarly consensus that the mother’s right to custody is forfeited if she remarries.

Elaborate.

[deen1984]

Re: Which parent should keep the child after divorce ?

Elaborate.

i think the sheikh is explaining that the womans child might get neglected when she marries again and gets distracted by her new husband, and also that husband might not be happy with the child because she is from a previous marriage and he may tell his wife to get rid of the child.

[LondonGal]

Re: Which parent should keep the child after divorce ?

i think the sheikh is explaining that the womans child might get neglected when she marries again and gets distracted by her new husband, and also that husband might not be happy with the child because she is from a previous marriage and he may tell his wife to get rid of the child.

The same can happen the other way around - if anything, a mother is less likely to be distracted by her new husband and to ignore her child, than a father is.

A mother is given a high status in Islam for a reason.

Also, there's a reason why fathers can work away from home away from their wives and children for longer periods than mothers can.

However, whilst I believe that the above explanation is flawed, I don't disagree with the fact that after a divorce the children belong to the father.

[UNITED UMMAH]

Re: Which parent should keep the child after divorce ?

JazakAllah for the reply but i am still not clear. So that means if a mother gets married again after divorce she loses the right on her child regardless of the father being single or married assuming the father has been fullfiling all his duties towards his child ? I have heard that father cannot take their children unless they are 12 years old (Pakistani Law, which is not necessarily Islamic) . Can anyone from Pakistan tell me which parent gets the custody of the child specially in such a case where father is a dual national and mother is Pakistani national and the child is only 5 and mother or father choose to remarry after divorce ?

Please stick to islamic law (Allah's command) and NOT pakistani law and you will be successful i.a

[shahpesh]

Re: Which parent should keep the child after divorce ?

Please stick to islamic law (Allah's command) and NOT pakistani law and you will be successful i.a

It is only possible where both parties come into agreement on Islamic Law otherwise we have to go to the court !

[nonameakhi]

Re: Which parent should keep the child after divorce ?

The same can happen the other way around - if anything, a mother is less likely to be distracted by her new husband and to ignore her child, than a father is.

A mother is given a high status in Islam for a reason.

Also, there's a reason why fathers can work away from home away from their wives and children for longer periods than mothers can.

However, whilst I believe that the above explanation is flawed, I don't disagree with the fact that after a divorce the children belong to the father.

I think sister the issue here may simply be like the issue of mehram and not a case of who makes the ''better'' parent.

What I mean is that if you have a person who is married to your sister, his brother can travel in a car with him and the wife as he (the husband) is her (the wifes) mehram
Yet the wife's sister cannot travel with him and her as the sister has no mehram


A woman remarrying doesnt offer the same ''protection'' to the child as teh father would, simple things like new husband has authourity etc


Generally I was at a divorce hearing once and the age of the child was 8. Over 8 and father has rights

[LondonGal]

Re: Which parent should keep the child after divorce ?

I don't agree that the father is a better parent than a mother or that he can give the child better protection etc. Bearing in mind that, the father is typically out of the house all day and parenting naturally falls more so on the mother - and in this case its the step mother, who will never feel the same way about the child the way the biological mother would.

I follow the ruling that Islam gives the father the rights over the children after a divorce. Cos, thats a fact. However, this is not based on any reasoning that has been shared on this thread so far.

[JDR]

Re: Which parent should keep the child after divorce ?

There is no rule, every case is different. Should ask a scholar/court.If the mother remarries,they still have to look in to the father’s situation and how suitable and able he is to raise the child. If he is corrupt or incapable of raising the child.

They choose what is best for the child and less harmful to parents.

Also there was some difference of opinion among the fuqaha as to who has more right after the mother. Some scholars said that the right passes to the mother’s mother.

(I think it also depends if the father left (divorced),his wife..Walahu'Alam)

Its not a simple case also Islam QA folows the opinion of ibn taymiyah ra.

If a divorced woman remarries, who gets custody of the daughter?

I divorced my husband (through khula issued by a group of Imams in our community as my ex-husband was refusing to accept the khula due to his difficult personality). The reason why I asked for the khula was because he refused to financially support me or our daughter and was very negligent towards us. My daughter was less than one years old at the time. For one year, the Imams tried to negotiate a contract with him, but because he is argumentative and very unreasonable, the Imams encouraged me to go to American court so that I could get some financial support for our daughter. I despised going to the American court, but I really felt that I had no other options. I only take what is Islamically reasonable in terms of money for my daughter from my ex-husband. We have a visitation schedule in place, but he only spends minimal time with her and makes very little effort to establish a good relationship with her.
My daughter is now 7 years old and has always lived with me and my parents. I would like to re-marry and have a question about custody. I know that once a woman re-marries, she loses custody of her child. However, my daughter is now 7 years old and old enough to say who she wants to be with. I know there is a difference of opinion as to who can “sponsor” her, but if she really wants to live with me, can she continue to do so after I remarry. Please note that the man I would like to re-marry has absolutely no problems with helping me raise her. Also, although my ex-husband is Sunni Muslim, his entire family is either non-Muslim or Shiaa. Given that I know my ex-husband tends to be negligent, I don’t want to put my young daughter in an un-Islamic environment.
In the event that I do lose primary custody of my daughter, could my mother “sponsor” her. Also, what happens after the age of puberty? Can she then come back to live with me?.


This hadeeth was classed as saheeh by al-Albaani in Saheeh Abi Dawood. This is the opinion of the Hanbalis and Shaafa‘is
-2-
If the child is female, then she is also to be given the choice according to ash-Shaafa‘i (may Allah have mercy on him).
Abu Haneefah said: The mother is more entitled to custody until the girl gets married or starts to menstruate.
Maalik said: The mother is more entitled to custody until she gets married and the husband consummates the marriage with her.
Ahmad said: The father is more entitled to custody, because it is more appropriate for the father to take care of her.
See: al-Mawsoo‘ah al-Fiqhiyyah, 17/314-317
Thirdly:
If the child has reached the age of maturity that he may choose whichever of his parents he wants.
Ibn Qudaamah (may Allah have mercy on him) said:
There is no proof of custody except in the case of a child or one who has a disability. As for the adult of sound mind, there is no custody of him and he has the choice of staying with whichever of his parents he wants, and if he is a man he has the option of staying alone and being independent of both of them. But it is not recommended for him to stay away from both of them or to stop honouring them. If the child is a girl then she has no option of staying alone and her parents have the right to prevent her from doing that, because there is no guarantee that she will be safe from someone who will enter upon her and do her harm and bring shame upon her and her family; if she has no father than her guardian and family have the right to prevent her from doing that.
End quote from al-Mughni, 8/191
And Allah knows best.


Islam Q&A

Think, the most important is that both parent are not being selfish and look at the best interest of the child(ren) And not being selfish.

[n_n_n]

Re: Which parent should keep the child after divorce ?

"Think, the most important is that both parent are not being selfish and look at the best interest of the child(ren) And not being selfish."

Best advice. Incidentally, completely in line with what the U.S. court would do - look at the "best interest of the child." Parents should stop acting as selfish morons and work things out for the benefit of the child.

I know a couple of divorced parents with young children; they can't stand each other but somehow manage to co-parent effectively.

[n_n_n]

Re: Which parent should keep the child after divorce ?

I don't agree that the father is a better parent than a mother or that he can give the child better protection etc. Bearing in mind that, the father is typically out of the house all day and parenting naturally falls more so on the mother - and in this case its the step mother, who will never feel the same way about the child the way the biological mother would.

I follow the ruling that Islam gives the father the rights over the children after a divorce. Cos, thats a fact. However, this is not based on any reasoning that has been shared on this thread so far.

Yeah, there are stories about "wicked stepmothers", not wicked stepfathers. Although there are studies showing abuse by stepfathers as well.

My DH has a distant cousin who raised her kids alone after her husband decamped when kids were very young. Eight years later she's in a sorta-secret, part-time marriage because she doesn't want to risk losing her kids. He probably wouldn't want to have them, but she's too fearful.