Islamically a woman has more right to her children than the father. There are numerous hadith that speak of the respect and blessing a woman attains through motherhood. The father is obliged to care and provide for his children, to love them and to ensure they have a stable and happy childhood. However, during the course of the marriage if the husband and wife part ways, the custody of children becomes an issue. If they separate and re-marry then the situation changes further.
Islamically the mother’s family get “first dibs” on the custody of children if for any reason the mother or father are not able to provide for them. If the options on the mothers side are lacking and/or exhausted (such as maternal aunts, grandmother) then the father’s side are given custody (paternal aunts, paternal grandmother). That is the general run of the mill method by which this is meant to work. More info can be sought at here
Im not so sure how this kind of arrangement would work in the modern day setting. The extended family set-up is non existent, with people emigrating and settling in cities and countries far away from their relatives. Or despite close proximity, due to the family dynamics it may still prove difficult. However not all circumstances are the same and would be judged on their individual merits.
In some area’s of Pakistan following the demise of parents, children tend to be kept in the family and owing to the temperament and “generosity” of the foster parents (usually the paternal aunt/uncle) they can be well treated. However stories do exist where they are treated like lepers and not given the same treatment as their own children.
In normal circumstances the mother keeps the children following a divorce and the father is obliged to continue to provide for them. This remains the case until the children reach a certain age or if the mothers circumstances change. Should she re-marry the custody right is “forfeited” – the father obtains custody of the children. In “normal” circumstances the father attains custody of his sons from age 7 upwards, and the daughter from age 9 upwards (in Hanafi madhab, in Mailki the daughter stays with the mother til she marries and in Shafi after attaining puberty she can choose who to stay with. In Hanbali school of thought, care and custody is transferred to the father after the daughter reaches puberty).
Scholars uphold different opinions on how long the mother keeps the child. For girls, the scholars have fixed the age of nine and for boys the age of seven, since this is the age in which they can carry out their trivial matters by themselves such as eat, drink, wear their clothes and clean themselves after the toilet. This is the fatwa in the Hanafi school based on what is prevalently observed about children. However, up until the girl menstruates, she stays within the custody of her mother since she requires knowledge about women’s issues, namely the rulings of menstruation & domestic training. The scholars have fixed the abovementioned age limit for this
Menstruation at the age of 9? that may be the case, but most girls aren’t “educated” about menstruation at all, nevermind them being expected to have a grasp about the rulings at such an age. Some are in their mid 20’s and still are unsure about the various rulings (post partum bleeding, spotting in between periods etc) so to have fixed ages is erroneous and a more flexible approach would be more apt. The same with boys – since they mature slower they wouldnt be capable of “fending” for themselves regardless of how good he is at tying his shoelaces or buttoning his jacket. And regardless of the age of the child – the father has very little input into their upbringing; the majority of the “work” is done by the mother and this is quite apparent in most examples of families (non-divorced/separated). These issues obviously differ across cultures and societies, therefore any decision would be made by taking into account the rate of development of the child/children.
The reasons for this age cut off is often attributed to the disposition of the mother, she is thought to be better suited to raise the children in the first few years of their life and is able to give them that due attention, care, love and provision which they need. If she re-marries the table turns in the “care” she provides
Firstly, incase of an infant, the mother should be given preference because a mother is naturally gifted with the required emotions and capabilities to take care of an infant. However, this preference will cease to exist if the mother decides to remarry. Now the father and the mother will be at par with each other in the matter of custody. This is so because the new husband of the woman might not want to keep the child or pay attention to his/her up bringing.
So she becomes “incapable” of looking after the children or in deciding what is in their best interest if she re-marries? Gross generalisation. Most men that marry women who have children are aware that she has “baggage” and make the decision to marry her bearing the children in mind and knowing what expectations she and the children have of him (as a “father figure”). Also, why would a woman purposely marry a man who see’s her children as a burden and wants rid of them?
It apparently isnt an issue if she weds someone who is a mahram to the child (such as the childs paternal uncle – her brother in law)
3. If the mother marries a person who is not a mahram [marriageable kin] relative of the child, i.e. this relative is such that nikâh [Ar. of the child] with him is not harâm forever, then the mother forfeits the right of custody over the child. However, if the woman marries a mahram relative of this child, and this relative is such that nikâh with him is not valid (for the child), e.g. she marries the child’s paternal uncle or any other similar relative, then the mother’s right of custody remains.
This is because they ascertain that
This is merely based on the fact that the wife may busy herself in the service of her husband who may lead her to paying little attention to the child’s nurture since the husband feels no responsibility towards the child due to no blood relation. Other matters of the mother which lead to paying little heed to the child’s nurture forfeit the mother’s right such as: 1. her having to leave the home frequently 2. and her involvement in a blameworthy & sinful act, so that the child’s safety is compromised.
(There are variations to this hadith – but all emphasise the same point of the right to children being reduced if the mother re-marries)
No mother would put her children second. They are her first and foremost priority, however that does not mean that she may not wish to have companionship for herself. This should be entitled to her without fear of losing her children if she admits that she cannot live on her own without a life partner. After all, this kind of fear and concern isn’t an issue for the father since regardless of his situation he still has rights to the children (and probably lumps them onto his new wife – how convenient!)
I was under the impression that following marriage of the woman to the man, her children and his become “mahram” to one another – therefore eradicating the entire “non mahram” issue. The only time when this becomes problematic is during fostering or adopting a child that would need to be “breast fed” to remove the mahram issue. But apparently he is mahram by marriage, but not by “blood” which is more “important”
Hence, although the husband does become a mahram in the sense that nikah is haram with him for the daughter once he consummates the marriage with the mother, he is not a mahram by blood to her like a paternal or maternal uncle or grandfather.
This clarification should have been made in the original response. Ibn Abidin has also pointed this out in his footnotes on the al-Durr al-Mukhtarwhich I noticed later. Hence, if the mother marries someone who is not a mahram to her child and also related by blood and decent to her then she loses custody rights.
This places the woman in a fragile position. If she marries someone who is mahram to her children already, then yes she can keep her children however if she does not then although he becomes mahram to them, he isn’t mahram by blood kinship and so she loses custody. Slightly unfair, is that not? If an individual isn’t a “true” mahram through bonds created by institutions (such as marriage) then I suppose the man/wife r’ship is also a “farce” and really the only “real kinship” one has is with their blood relatives (brother, sisters, maternal relations/paternal relations). Deducing what is “real” or “true” kinship is a dangerous game to play and has the potential of belittling and devaluing relationships (blood is thicker than water – but you can’t choose your relatives!).
“custody rulings come into play when the parents themselves are in disagreement. However if they make some agreement, and both agree, the Shariah doesn’t force its rules upon them.
Im not so sure things are so “rosy” and “peachy” as they make it seem. But we can have hope.
Q. Why is it that the mother cannot take custody of the child after boy is seven and girl is 9? It just does not seem fair without and even illogical considering the mother is usually the one that raises her children. Also, if the husband is incapable of taking care of the children, wbhy can”t the mother take custody?
Walaikum assalam wa rahmatullah,
I pray this finds you in the best of health and spirits.
The general rules of custody don’t apply to every particular situation; rather, they are very context-dependent and the consideration of who is objectively more likely to take care of the material and religious upbringing of the child better is very important.
This is why it is imperative (before taking matters to secular court or the like) to take individual cases to reliable scholars of understanding and wisdom.
And Allah alone gives success.
Faraz Rabbani
Lets hope this is the case and isn’t just empty rhetoric. At least they allow the child’s voice to be heard
The custody issue however does unsettle a lot of women who see it as putting them in an unfair situation and gives them an unfair advantage should they wish to re-marry. There may be wisdom behind the rulings – and where the mother/father are incapable of caring for the children keeping them in the family (although those individuals would also need to be vetted and judged to be capable and willing to do this) is a sound method of doing things – but much of the guidelines are general and cannot simply be applied to any given case, but rather would need to be “moulded” accordingly, ultimately ensuring custody is given to those who are able to care for the child properly.
Is the custody issue unfair to women?
Inner Reflections Transcribed 
“Is the custody issue unfair to women?”
Yes! There may be reasons for it but it is still unfair. I was reading Safa’s blog today after a year and was thinking about this whole custody issue. If you have read her blog you’d know that the father is completely incompetent to look after the children yet there is the possibility that the older daughters will go to him. Plus, she can’t remarry out of fear of losing them all.
It is unfair.
I used to read her blog a while ago. If the father is incompetent and indeed if one has detailed and noted instances of this (in diary format) then any sound judge would not appoint custody to such a man.
I have come across instances amongst some Hindu and Sikh women who have married their brother in law following the death of the sister as a replacement mother for their nieces/nephews (and some who have married the older/younger brother of the deceased husband) so its not a completely Islamic phenomenon which makes it even more intriguing.
I think it is shocking because coming from my culture prior to Islam, I never heard any cases of custody going to the father. Seriously, no matter how unfit the mother was, she would get the kids. That is in my opinion even worse. Again, we may hate something but it’s only our likes and dislikes. Some things may be good even though we can’t see the good in them personally while some things can be bad for us while we don’t see the big deal ourselves. Again, it all comes back to having our likes and dislikes in sync with Allah’s, being willing to submit to His Rules and Will and realize our Creator knows what’s best for us.
Sumera, I’ve read about Hindus and Sikhs doing that too but I wonder if it is something out of personal choice/social pressure or if it is done because otherwise the woman will lose custody of the child.
Unless a woman is in love with her BIL which causes her to split with her husband, I wonder exactly how much she will like her former in-laws to want to marry into them again.
Capability and suitability in terms of custody is obviously something that should be taken into account – rather than being unfair and assuming biologically one parent is better than the other and theres no lee-way in the matter.
But I can’t see the “wisdom” behind a woman losing her children if she weds someone who isn’t a blood mahram to her children already. Divorced men with “baggage” usually look for a woman who is willing to raise his children and more often than not they usually find one. But surely he won’t just marry the first thing that comes along – most parents would ensure that the prospective partner is suitable and will treat their children well.
Considering a divorcee doesnt need her wali’s permission to re-marry, which denotes her being capable and “experienced” enough to do it herself – it obviously isn’t seen to be the case if she has children which is a strange assumption to make.
Surah 4: 23 writes:
Prohibited to you (For Marriage) are – your mothers, daughters, sisters, father’s sisters, mother’s sisters, brother’s daughters, sister’s daughters, foster-mothers, foster-sisters, your wives’ mothers, YOUR STEP-DAUGHTERS UNDER YOUR GUARDIANSHIP, born of your wives to whom ye have gone in – no prohibitation if ye have not gone in – wives of your sons proceeding from your loins and two sisters in wedlock at one and the same time, except for that in past, for Allah is Oft-Forgiving, Most Merciful.
Doesn’t it clearly say that the step-daughters are not legitemate for the stepfather to marry, therefore are to him as his own? Which is then more important, the ‘weak’ Hadith or the Holy Quran?
We aren’t speaking of importance here between the two sources, since we know Quran has the “upper”hand so to speak, but the apparent discrepancy and why the various mahram complexities have arisen as a result.