Right of custody if father is a disbeliever.
In the name of Allah, the most Beneficent, the most Merciful.
In a situation where children are involved, divorce should definitely be avoided as much as possible, as this will inevitably affect the welfare and upbringing of a child.
The Prophet of Allah (SAW) has said; “Divorce is the most hated of all lawful (halal) things in the sight of Allah.” (Sunan Ibn Majah P.146 v.1)
However, sometimes separating is the best solution for both parties and the husband and wife divorce. During this difficult period, it is important that the children’s rights are not being abandoned.
At the time of The Prophet of Allah (SAW) a woman came to him and said; “ O’ Prophet of Allah, for this son of mine my womb was a plate, my lap was a resting place and my breasts a means for him to quench his thirst, and now his father wants to take him away from me. So the Prophet of Allah (SAW) said “You have more right over him until you get married.” (Sunan Abu Dawud)
If the separation takes place between couples that have young children, the ruling is as follows;
The mother has a right of custody for a boy until the child is capable of taking physical care of himself, for instance the child should be able to feed himself and go to the toilet by himself etc…This is approximately at seven years old, and the fatwa has been issued on this age. In case of a girl, the mother has custody for her until she has reached the age of puberty, which has been declared at nine years old. (Raddul-Muhtar p.252-265 v.5, Ahsanul Fatwa p458-459v.5)
It should also be borne in mind that the boy remains in his father’s custody until puberty, at which point he has a choice to whom he wants to live with or perhaps he may wish to live by himself. The girl on the other hand will remain with the father until she gets married. (Fatawa Hindiyyah p542 v.1)
In regards to your question, it should be borne in mind that Muslim are obliged to abide by the laws of the land and country they live in, whether it is a Islamic State, Muslim country, or non Muslim Country, as long as they are not ordered to practice something that is against Shariah.
With regards to your question, in a situation where the father is a disbeliever the mother will have a right of custody. This will be the ruling for both the boy and girl irrespective whether the boy is below or above the age of seven or in case of the girl whether she is below or above the age of puberty. (Hidayah p.346 v.2)
Only Allah Knows Best
Mohammed Tosir Miah
Darul Ifta Birmingham