Islamic law puts certain rulings of custody. A child is in the custody of parents, providing their marriage remains in force. If they are divorced, custody is given to either of them, who quality, but women are given priority.
Definition: Child custody means, according to Islamic law, taking care of a child when it cannot look after itself, and to bring the child up, looking after it physically and mentally, protecting it against anything that could cause it harm.
Ruling: Custody is obligatory to be taken by the adult if he or she is the only one to take it, or if there are more than one but the child accepts only one of them. It is obligatory because the child might come to harm or die if no one takes custody of it and to ensure its wellbeing. When there are several potential custodians it becomes a collective duty, which means that when one of them takes it the others are not accountable. Custody is given to either women or men who qualify, but women are always given priority because they are kinder to children, and better carers.
A child is in the custody of its parents, providing their marriage remains in force. If they are divorced the child’s custody is given to the mother, unless she gets married to someone who is unrelated to the child. A woman complained to the Prophet (peace be upon him) that her ex-husband wanted to take her child away from her.
:The Prophet (peace be upon him) said to her
‘You have the right to the child ahead of him, unless you get married’
Related by Ahmad, hadith No. 6,707; Abu Dawud, hadith No. 2,276; al-Hakim, vol. 2, p. 225
When someone is given custody of a child, it becomes the responsibility of that person to protect the child against anything that causes it harm until it grows up. The custodian has to look after the child’s feeding, nourishment, internal and external cleanliness, sleep, play and all its needs and requirements.
- Al-Bahuti, Kashshaf al-Qina', vol. 5, p. 765.
- Al-Nadawi, Al-Fiqh al-Muyassar, p. 334.