Custodial Rights
QUESTION:
I have three daughters (aged 3, 5 and 8) whom I share with my ex-wife. If she remarries someone who is not a Mahram to my daughters, how would custody of the children be ruled?
ANSWER:
As per Islamic law, custody of a child, in the case of separation between the spouses, revolves around both parents, depending on the age and gender of the child. In the case of a boy, the mother is entitled to custody until he reaches the age of seven, and thereafter, the right of custody is transferred to the father. As for a girl, the mother is entitled to custody until she becomes Baaligh, which is subsequently transferred to the father.
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 ( وَالْأُمُّ وَالْجَدَّةُ ) لِأُمٍّ ، أَوْ لِأَبٍ ( أَحَقُّ بِهَا ) بِالصَّغِيرَةِ ( حَتَّى تَحِيضَ ) أَيْ تَبْلُغَ فِي ظَاهِرِ الرِّوَايَةِ )الدر المختار و حاشية ابن عابدين 6/566)
However, if the mother, who is entitled to custody of the child, marries someone who is not a Mahram to the child, then she will lose custody of the child. In this case, the maternal grandmother is afforded the right of custody until the child reaches such an age when custody is transferred to the father of the child. In the absence of the maternal grandmother, it goes to maternal great grandmother and so on and so forth. In the absence of the above-mentioned sequence, the right of custody will go to the paternal grandmother and so on and so forth. In the absence of both the grandmothers in the sequence mentioned above, then the right of custody will go to the biological sister. In her absence, it will go to the uterine sister (same mother but different father), then to the consanguine sister (same father but different mother), then to the biological niece, then the uterine niece, then to the consanguine niece. (Re: – Ahsanul Fataawa; pg.459 vol.5)
ALLAH TA’ALA ALONE IN HIS INFINITE KNOWLEDGE KNOWS BEST!
ANSWERED BY:
Mufti Abdul Kader Fazlani
Date: 15 Muharram 1447 / 11 July 2025
CHECKED AND APPROVED BY:
Mufti Yacoob Vally Saheb