The Book of Lian

Chapter on Physical Custody

باَبُ اْلحَضَانَةِ

Glossary

Chapter on Physical Custody ¹⁴⁴²

The most deserving of the physical custody of a child is the mother,¹⁴⁴³ then her mothers,¹⁴⁴⁴ however high (however many generations up), then the father, then his mothers, then the grandfather, then his mothers, then the full sister, then the paternal half sister, then the maternal half sister,¹⁴⁴⁵ then the maternal aunt, then the

أَحَقُّ النَّاسِ بِحَضَانَةِ الطِّفْلِ أُمُّهُ، ثُمَّ أُمُّهَاتُهَا وَإِنْ عَلَوْنَ، ثُمَّ اْلأَبُ، ثُمَّ أُمُّهَاتُه، ثُمَّ اْلجَدُّ، ثُمَّ أُمُّهَاتُه، ثُمَّ اْلأُخْتُ مِنَ اْلأَبَوَيْنِ، ثُمَّ اْلأُخْتُ مِنَ اْلأَبِ، ثُمَّ اْلأُخْتُ مِنَ اْلأُمِّ، ثُمَّ الْخَالَةُ ثُمَّ اْلعَمَّةُ، ثُمَّ اْلأَقْرَبُ فَاْلأَقْرَبُ مِنَ النِّسَاءِ، ثُمَّ عَصَبَاتُهُ اْلأَقْرَبُ فَاْلأَقْرَبُ

1442. Introduction

Ḥaḍânah (translated as custody, tutelage, foster care) entails caring for the children, keeping them safe, and managing their day-to-day affairs up to a certain age. The children will spend the nights with the one entitled to their physical custody. I chose ‘physical custody’ in the translation to point out that this custody does not supplant two other forms of custody, namely, the general custody (wilâyah ‘âmmah) and financial custody (wilâyah mâliyah), which the father keeps even if the mother has physical custody. This means that the father will be the guardian for his daughters until they marry, and he manages his children’s assets for them (unless he is disqualified). If the two parents are married, the ḥaḍânah of the child is the right and responsibility of both of them. The child cannot be severed from either or both of them except for a necessity. The discussion of the entitlement to ḥaḍânah pertains to parents who are separated, or the rare case where they are disqualified from ḥaḍânah. Ḥaḍânah is established in the best interest of the child. The parents and all involved parties must fear Allah and do what is best for the child. Using the issue of custody to cause harm to an ex-spouse is evil and reckless. Note that in all cases, and regardless of who gets custody, children will not be prevented from seeing either parent; likewise, parents will not be prevented from spending time with their children unless real harm is feared for the children’s safety.

1443. The most deserving of the child’s custody is the qualified mother who has not remarried. Beyond this, there is little agreement concerning the most deserving of custody.

1444. “Mothers” here means the mother, then the grandmothers, then the great-grandmothers, and so on.

1445. (A/SM & Iqnâ‘): The maternal half sister comes before the paternal half sister.

paternal aunt, then the closest related women, and then the closest of his paternal kin. ¹⁴⁴⁶

The right to physical custody does not belong to a slave, ¹⁴⁴⁷ a fâsiq (one who sins openly and repeatedly),¹⁴⁴⁸ or a woman married to a man who is foreign (is not a maḥram) to the child.¹⁴⁴⁹ Once

وَلاَ حَضَانَةَ لِرَقِيْقٍ، وَلاَ فَاسِقٍ، وَلاَ امْرَأَةٍ مُزَوَّجَةٍ لأَجْنَبِيٍّ مِنَ الطِّفْلِ، فَإِنْ زَالَتِ الْمَوَانِعُ مِنْهُمْ، عَادَ حَقُّهُمْ مِنَ الْحَضَانَةِ

1446.(A/SM & Iqnâ‘): ‘Uloo al-arḥâm will come after the ones mentioned here and before custody is given to the state. Each madh-hab has its own order of entitlement to custody.

It is for the Islamic judiciary (or, outside the lands of Islam, those in its place, when the contending parties seek arbitration) to assign physical custody to the most qualified relatives (that is, those who will realize the best interest of this child) in light of the suggested orders of priority provided by the different madh-habs.

1447.It is feared that the child’s interest will not be best served because the one in the bond of slavery may not have the sufficient time and capability to take care of the various affairs of the child. Partially freed slaves may have custody on their free days. (See the appendix on slavery.)

1448.This is according to (A) + (+H, +M, +S); however, the sinning that disqualifies an individual from ḥaḍânah is likely that which could result in harm to the child.

1449.Mothers First Unless They Marry
Because the Prophet (SA) said:

“You have more right to him as long as you do not marry.” (D – from Ibn ‘Amr. al-Albâni: R)

نْتِ أَحَقُّ بِهِ مَا لَمْ تَنْكِحِي

the hindrances to the right of physical custody are removed,¹⁴⁵⁰ their entitlement to it returns.

قَالَ لَهُ زَوِّجْنِيْ هَذِهِ الْمَرْأَةَ إِنْ لَمْ يَكُنْ لَكَ بِهَا حَاجَةٌ، "اْلتَمِسْ وَلَوْ خَاتَمًا مِنْ حَدِيْدٍ."

This was when a woman approached him and said, “O Messenger of Allah, my womb was a vessel for this son of mine; my breasts served as a water-skin for him, and my lap as a cradle. Yet his father has divorced me and wants to take him away from me.” This hadith was reported through a controversial chain that is accepted by most Hadith scholars; it is that of ‘Amr ibn Shu‘ayb from his father, from his great-grandfather. Ibn Ḥazm did not accept the hadith and did not act upon it, so he gave custody to the mother, regardless of her marital status, for both genders until they reached puberty. This was also reported from ‘Uthmân and al-Ḥasan al-Baṣri. The four imams transfer the right of custody from the mother if she marries a man who is not a maḥram to the child. (If she marries a relative of the child, (A) does not drop her right to custody; also (H) if he was unmarriageable kin.) This is only in case of dispute. If the father agrees to leave the child with the mother after her marriage, then she may keep him or her.

1450. Other Hindrances That Disqualify Relatives from Custody

In addition to the hindrances mentioned in the matn, there are four others in the madh-hab: Insanity (A) + (+H, +M, +S) Incapacity, such as blindness (A) + (+M) Contagious diseases (A) + (+M)

When the boy reaches the age of seven years, he is given the choice between his parents, and then he will be with whomever he chooses.¹⁴⁵¹

وَإِذَا بَلَغَ اْلغُلاَمُ سَبْعَ سِنِيْنَ، خُيِّرَ بَيْنَ أَبَوَيْهِ، فَكَانَ عِنْدَ مَنِ اخْتَارَهُ مِنْهُمَا

Disbelief, according to all, in the case of relatives other than mothers (and according to (A) + (+S) even with mothers), although no one said that she would be barred from her children or that they would be barred from her. (-H, -M) maintained that a non-Muslim mother is still more deserving of custody as long as the Muslim father supervises the upbringing of his children. Besides the rational proof of the mother’s irreplaceable compassion, (-H, -M) cited the report from ‘Abdul-Ḥameed ibn Salamah al-Anṣâri, from his father, from his grandfather, that he became Muslim, but his wife refused to become Muslim. He brought a young son of theirs, who had not yet reached puberty, and the Prophet (SA) seated the father on one side and the mother on the other side, and he gave him the choice. He said, “O Allah, guide him,” and (the child) went to his father. (N) Although the hadith was accepted by some Hadith scholars, (A) + (+S) pointed out the controversy over its transmission, and they also argued that the Prophet (SA) knew that Allah would answer his supplication for the child to choose his Muslim father, who would be certainly more trusted to raise him or her as Muslim. (-H, -M) argue that the Prophet (SA) would have not given the child a choice if granting custody to the non-Muslim mother was prohibited. ¿ Nowadays, where Muslims live as minorities, such cases will be settled in the secular court. Whenever the children are in his company, the Muslim father should do his best to show them the beauty and soundness of Islam and to teach them about it.

1451.The Boy Is Given the Choice at Seven

This is the position of (A) + (+S), for Abu Hurayrah said, “I heard a woman who came to the Messenger of Allah (SA) while I was sitting with him, and she said, ‘My husband wishes to take away my son, Messenger of Allah, and he draws water for me from the well of Abi ‘Inabah, and he has been helpful to me.’ The Messenger of Allah (SA) said:

‘Cast lots for him.’

اسْتَهِمَا عَلَيْهِ

When the girl reaches the age of seven years, her father is more deserving of her. ¹⁴⁵²

وَإِذَا بَلَغَتِ الْجَارِيَةُ سَبْعًا، فَأَبُوْهَا أَحَقُّ بِهَا

Her husband asked, ‘Who could dispute with me about my son?’ The Prophet (SA) said:

‘This is your father, and this is your mother, so take by the hand whichever of them you wish.

هَذَا أَبُوكَ وَهَذِهِ أُمُّكَ فَخُذْ بِيَدِ أَيِّهِمَا شِئْتَ

He took his mother’s hand, and she went away with him.” (D. T: RS) (A): Whenever the boy chooses to switch places, his wish should be honored.

1452. The Girl Moving to Her Father

This is the correct position in (A) because the children in the hadiths of granting the choice to the child were boys. (A) also argued that the girl needs greater protection, and suitors will be proposing to her father, etc.

Moving to the Father in the Other Madh-habs

(-S): The girl, like the boy, will be given the choice at the age of discernment, which is seven. (-M): Custody goes to the mother for a boy until he reaches puberty and for a girl until she gets married. (-H): Custody goes to the mother until the boy is 7 and the girl is 9, when they are placed in the custody of their father.

Arrangements of Visitation

The scholars of the past said that if the child stays with his mother, his father will be entitled to take him during the day to escort him to the Qur’an school, teach him a craft, etc. Nowadays, the arrangements may be different due to the changes in lifestyle. Many people live in large cities, where dividing the nights and days between the parents may not be feasible, so the child may live with one parent on weekdays and the other on weekends. Here are some important points in this regard from the AMJA Family Code:

Article 219: When the child is in the custody of one parent, the other is entitled to visiting him or her, being visited by him or her, and meeting him or her according to a mutual agreement between them. However, the parents must be careful to avoid being alone together after divorce has made them foreign to one another. If they dispute, the matter is referred to a judiciary which will determine windows of visitation, and set the time and place in a fashion that will prevent loop-holing in its execution as best as possible. Article 220: Regardless of whether these visitations are established by agreement of the parents or a judicial verdict, when new circumstances

The father must provide a wet-nurse for his child unless the mother wants to feed him or her with the customary wages of someone like her, in which case she becomes more deserving of him than all others.¹⁴⁵³ This is true whether she is still married (to the child’s father) or divorced (from him). If (the child) has no father or wealth, then it is binding on his or her heirs to provide the compensation for the wet-nurse in proportion to their shares of inheritance from him. ¹⁴⁵⁴

وَعَلىٰ اْلأَبِ أَنْ يَسْتَرْضِعَ لِوَلَدِه، إِلاَّ أَنْ تَشَاءَ اْلأُمُّ أَنْ تُرْضِعَهُ بِأَجْرِ مِثْلِهَا، فَتَكُوْنُ أَحَقَّ بِهِ مِنْ غَيْرِهَا، سَوَاءٌ كَانَتْ فِيْ حِبَالِ الزَّوْجِ أَوْ مُطَلَّقَةً. فَإِنْ لَمْ يَكُنْ لَهُ أَبٌ وَلاَ مَالٌ، فَعَلىٰ وَرَثَتِهِ أَجْرُ رَضَاعِهِ، عَلىٰ قَدْرِ مِيْرَاثِهِمْ مِنْهُ

arise that cause such arrangements to be harmful to either party or the child, the matter is referred to a judiciary to decide whatever is most suitable. That could involve adjusting the visitation format, voiding the right of custody when agreements are breached, or when there is loop-holing in the execution of the agreed upon or decreed visitation format.

1453. (A): The mother is entitled to compensation for breastfeeding and/or having physical custody of the baby, even if there is another woman who volunteers to do it for free.

1454. The compensation for breastfeeding the infant is only one of the financial obligations of the father or of those who will be responsible for the child. (In the absence of a father or of wealth owned by the child, the child’s heirs share the financial responsibility in proportion to the share of the inheritance they would receive from him or her.) The other two financial obligations are:

1. The maintenance of the child.

2. (A) + (+H, +S): The compensation for physical custody.

(-M): No compensation for custody.

Chapter on Physical Custody

( Page : no 132)

The Book of Lian

Chapter on Physical Custody

باَبُ اْلحَضَانَةِ

Introduction

The Book of Purification

The Book of Prayer

The Book of Funerals

The Book of Fasting

The Book of Hajj and 'Umrah

Book of Zakat

The Book of Selling and Commercial Transactions

The Book of Bequests

The Book of Inheritance

The Book of Marriage

The Book of Divorce

The Book of Sadaq

The Book of Dhihar

The Book of Lian

The Book of Foods

The Book of Oaths

Book of Fatal and Non-Fatal Assault

The Book of Indemnities

The Book of Hudood

The Book of Jihad

The Book of the Judiciary

The Book of Testimonies

Appendix

Glossary

Chapter on Physical Custody