As-Salam-alaikum, My sister is divorced and has a 7 year old daughter. She got remarried and is now living here in the USA, while her prior husband is still in Egypt.The father wants to see his daughter but she does not trust sending the daughter even for a vacation lest he forcibly keep her. What is the ruling on custody? Does she lose custody according to Maliki Fiqh? If that is the case, does it go to the father, or to her mother?
Please clarify. Also, I believe, that she should be able to keep her daughter until she is married, right? Thanks.
As Salamu ‘alaykum wa rahmatullah,
Custody rights are extended to those legally entitled in the case of the male child until he reaches puberty and to the female child until she is married. When a mother divorces and is remarried and has a child (be it male or female), she loses right to custody of the child. The next person in line of entitlement is the child’s maternal grandmother; not the father. However, this transfer of custody to the maternal grandmother is only valid when the grandmother lives in a separate residence from the residence of the child’s mother. Otherwise, the grandmother retains her right to custody.
In this particular scenario where a 7 year old girl is taken by her mother from one town beyond the normal distance of travel allowing for one to shorten prayers (48 hashimite miles) away from the girls father, such a decision invalidates the mother’s right to custody for two reasons: Firstly because she has remarried. Secondly because of the abrupt decision to travel without the father’s permission, knowledge, and/or approval such that his daughter is now at an inconveniencing distance from him. The fact that one fears that he may keep her is no legal justification for this. Consequently, and in light of these factors, the child’s mother is disqualified as a legal custodian at this point, and the right to custody is transfered to her next of kin in the father’s home country in the following order:
1- the maternal grandmother, then
2- the mother of one’s maternal grandmother, then
3- the mother’s father’s mother, then
4- the maternal aunt of the child, then
5- the mother’s aunt, then
6- the maternal aunt’s maternal aunt
This list is incomplete, of course, but it should serve the purposes of the question.
Barak Allahu Feek Ya Shaykh Abdullah for your prompt response.
Could you please enlighten me on the reason why my sister would lose custody if she got remarried? I know this is not the only reason why she should lose custody.
Is it because she will not have time to take care of the child? I know the stepfather is very caring and loving to the child.
The reason is that according to the standard view in the Maliki madhhab, a custodian’s right to custody is voided if he/she travels with the child to a town outside the proximity of the father’s homeland unless the distance is less than 48 hashimite miles. As for the fact that the new father is caring, this has no bearing on the situation. The fact is he is still not the girl’s father. So this is no valid excuse to deny the natural father his right to see and spend time with his daughter. The second thing is that once a woman remarries, her right to custody is transferred to the next in line of priority. So this is a second reason her custody rights are voided. Islam seeks to protect the ward. A particular wisdom that can be inferred from the ruling of disqualifying the mother who remarries from consideration is the protection of the ward. In other words, while outwardly caring, stepfathers typically do not have the same compassion that natural parents do. This opens the ward up to certain abuses that a natural child would not be opened up to. If that ward is a girl, it could also happen that the stepfather might possibly sexual abuse the girl due to her not being as close as her natural father is.
I want to get more clarification on the question you answered for a sister on child custody. Suppose – the mother’s mother and next of kin are not available on the mother’s side and the father is an abusive father who abused his wife to a point where he tried to kill her?
Does Islam allow in such cases an exception? Meaning for the mother to have child custody. I have a relative whose ex-husband either was mentally ill or just violent. He chased her with a butcher’s knife down the street while She was pregnant to try and kill her. She survived. She divorced him due to his abusive ways. Later on She got remarried and moved to another state which is 450 miles away. He wanted custody – and we helped her to not give him custody.
It was not that She was thinking ‘my daughters’ but She was afraid that he would hurt the kids. He has tried to take them away more than once. At one point when he took them through fraudulent petitions filed in the court – he told the child to claim her step father sexually abused her.
We want to create a relationship where he can establish his rights as a parent and still be a father. We tried but he is has psychological issues. In this case we tried supervised visits which he refused, and the mother had no problem that if over time he displays a change and goes through counseling and heals – to transfer custody.
But he has not. His next wife left him for abuse, and his third wife is on the brink of leaving him for abuse.
In such a situation – are we sinful?
Firstly, the custodians are of four general classes: i) the maternal grandmother and her female progeny; ii) the female progeny of the maternal grandfather; iii) the child’s father, his testamentary guardian, the executor of his testamentary guardian, and the female progeny of the father; and iv) the male relatives of the family starting with those of the mother’s family as in the order stipulated in the laws of inheritance.
In other words, the father’s rights are not effective until the matter reaches stage three (iii) after all of the female relatives of the mother’s family are exhausted. If we imagine a case when none of those women are alive or fit for custody, then we would have reason to be concerned about the father.
As for denying a father his rights to see his children, mere suspicion is not enough justification for such a depriving. What I’m saying is that because someone “might” be violent or “might” be insane especially coming from one of his antagonists without him being given an opportunity to defend himself before a judge, this does not constitute sufficient reason to rule that the family has not committed a sin by denying him access to his children. If he is declared medically to be insane and a potential detriment to himself and to others by an objective and neutral physician, this would perhaps give us reason to keep the children away from him. Short of that, I am in no position to pass judgment in your favor and against the child’s/children’s father. Such a matter can only be resolved through appropriate arbitration with a fair, judicious, and neutral judge or council.
In addition, “abuse” would also have to be defined. In other words, I’m not sure that if it happens that a man has stricken his wife ‘once’ in a fit of rage that we can consider it abuse according to Islamic legal standards, although western legal methodology might classify it as such. To declare a person an abusive husband takes a little more proof than just speaking of a single incident (especially without speaking of the manner of attack: where he hit? how hard he hit? how much damage was cause?); just as the person’s mental state and the possible offense of the wife that led to the transgression needs to be ascertained according to all appropriate legal criteria (Let’s say the husband, perhaps, catches his wife in bed with another man). Usually, when a person tries to kill another, the one committing such an act is usually charged with “attempted murder.” And most attempted murderers I know usually spend a lot of time in prison or atleast in a mental institution if they are found to be incompetent to stand trial.
I hope this all helps you with your situation.