Fatwa ID: 08121

Answered by: Alimah Maryam Badshah

Question:

Assalamu Alaikum,

I am 33 years old, and I have been divorced from my husband who is currently serving a 10-year prison sentence for sexual assault (he was sentenced two years ago). I believe he will be in prison for 5 years and then have a 5-year period with an ankle tag.

We have a 3-year-old son together, and now I have a new naseeb and want to remarry and have more children while I still can.

My question is about how custody works in Islam. Can my son still stay with me? One point to mention is that my previous husband never provided any financial support for his son, both during our marriage and while he has been locked up.

I would really appreciate advice on how I can take custody of my son by law but also still allow the father of my son to see him.

Answer:

Assalaamu Alaikum,

I am sorry to hear about your unfortunate circumstances, may Allah (swt) grant you ease and comfort during this difficult time. When it comes to child custody after a divorce, it is important to keep in mind that a child’s safety and wellbeing take priority over a parent or relative’s rights. Custody rights can be waived or revoked depending on individual situations. For example, if either parent is unfit or unable to care for the child’s wellbeing, or if the people who will be living with the child could cause them emotional or physical harm. However, even if a right is revoked or waived, the custody does not automatically go to the other parent in such cases, which will be explained later.

In Islam, the general rule regarding a son after divorce is that the son stays with the mother until they can clean, clothe, and feed themselves (usually around 7 years old), after which the father has the right to custody. The father is responsible for providing maintenance for his children regardless of the mother’s monetary situation, even during her custody. Maintenance for a son continues until maturity or until he can provide for himself. After that, the child may choose where they want to live. The father must also provide shelter for both the mother and children if they have no shelter while the child is in the mother’s custody. Both parents have a right to visit their children.

If the person who has custody of the child loses or waives their right to custody, such as in the event of a mother remarrying someone who is not a mahram to the child, then other relatives can apply for custody if they wish. If the child’s custody is not contested by anyone and is mutually agreed upon, Islamic courts would usually not get involved in custody matters.

The right of custody for an underaged child is given to the following people in this order (in relation to the child): the child’s mother, maternal grandmother, paternal grandmother, sisters, maternal aunts, and then paternal aunts. If any of these women marry a person who is not a mahram to the child, the custody is transferred to the next in line. If none of the women have the right of custody, then male relatives have the right to custody in accordance with asabah (agnates): the father, paternal grandfather, brothers, nephews, uncles, etc. A person who loses or waives their right to custody can regain it if what caused them to lose custody is no longer applicable.

It is important to note that decisions regarding custody would only be made by a Judge or Qadhi if there is a dispute or concern for the child’s safety and wellbeing. This means that if parents or relatives are demanding custody, they would need to resolve the issue with a Qadhi or Islamic scholar who would mediate the custody, maintenance, and visitation rights after hearing any concerns the parties involved may have. In your case, where you are looking to see if your son may be allowed to live with you after remarriage, this may be possible if the Judge/Qadhi is aware of your situation and deems it to be more beneficial for your son to be with you than with any other custodian.

Only Allah (عز و جل) knows best.

Written by Alimah Maryam Badshah
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham

References:

(قَوْلُهُ: لِلْفَرْقِ الْبَيِّنِ إلَخ) اسْتَظْهَرَ هَذَا الْخَيْرُ الرَّمْلِيُّ أَيْضًا بِقَوْلِهِمْ: إنَّ زَوْجَ الْأُمِّ الْأَجْنَبِيَّ يُطْعِمُهُ نَزْرًا: أَيْ قَلِيلًا، وَيَنْظُرُ إلَيْهِ شَزْرًا: أَيْ نَظَرَ الْبُغْضِ، وَهَذَا مَفْقُودٌ فِي الْأَجْنَبِيِّ عَنْ الْحَاضِنَةِ. قَالَ ح: وَفِي النَّفْسِ مِنْ هَذَا الْفَرْقِ شَيْءٌ فَإِنَّ الرَّابَّ إذَا كَانَ كَذَلِكَ فَالْأَجْنَبِيُّ أَوْلَى كَمَا هُوَ الْمُشَاهَدُ

(وَالْحَاضِنَةُ) أُمًّا، أَوْ غَيْرَهَا (أَحَقُّ بِهِ) أَيْ بِالْغُلَامِ حَتَّى يَسْتَغْنِيَ عَنْ النِّسَاءِ وَقُدِّرَ بِسَبْعٍ وَبِهِ يُفْتَى لِأَنَّهُ الْغَالِبُ. وَلَوْ اخْتَلَفَا فِي سِنِّهِ، فَإِنْ أَكَلَ وَشَرِبَ وَلَبِسَ وَاسْتَنْجَى وَحْدَهُ دُفِعَ إلَيْهِ وَلَوْ جَبْرًا وَإِلَّا لَا…

أَحَقُّ النَّاسِ بِحَضَانَةِ الصَّغِيرِ حَالَ قِيَامِ النِّكَاحِ أَوْ بَعْدَ الْفُرْقَةِ الْأُمُّ إلَّا أَنْ تَكُونَ مُرْتَدَّةً أَوْ فَاجِرَةً غَيْرَ مَأْمُونَةٍ كَذَا فِي الْكَافِي…

قُلْت: الْأَصْوَبُ التَّفْصِيلُ، وَهُوَ أَنَّ الْحَاضِنَةَ إِذَا كَانَتْ تَأْكُلُ وَحْدَهَا وَابْنُهَا مَعَهَا فَلَهَا حَقٌّ لِأَنَّ الْأَجْنَبِيَّ لَا سَبِيلَ لَهُ عَلَيْهَا وَلَا عَلَى وَلَدِهَا بِخِلَافِ مَا إذَا كَانَتْ فِي عِيَالِ ذَلِكَ الْأَجْنَبِيِّ…