Custody of a Muslim Child by a non-Muslim Woman
The mother has the first right of custody even if she is following an earlier divine religion until the child is 7. In case it is feared that the child will be leaning towards disbelief, it will be taken from his mother.
Custody of a Muslim Child by a non-Muslim Woman
- Can a mother who follows a divine religion other than Islam be given custody of her child?
- Custody given to a woman following a divine religion;
- Custody when religions differ.
When a marriage breaks up through the husband’s death or divorce, or through the death of the wife who is a follower of a divine religion, and there is a young child, who takes custody of the child? Does the difference in religion preclude child custody?
The difference in religion does not remove the mother’s right of custody until the child becomes aware of religion, unless it is feared that the mother will instil in her child her disbelief. Only in this case is the child removed from her.
The Assembly of Muslim Jurists of America
Being the child’s mother, a follower of an earlier divine religion has the right of custody until the child is seven years of age, unless such custody could cause harm to the child regarding its faith, as happens if the mother tries to instil in the child some errant beliefs. When the child is seven, custody goes to the father because at this age the child is ready to learn and attend to education. In principle, custody is granted to ensure the interests of the child and protect it against what causes harm or detriment. If a non-Muslim is given custody of a child custody during this stage, this could lead to a great loss. Whoever is married to a follower of another divine religion should make clear to her that their children follow his faith, Islam, and that should the marriage be terminated, then their custody belongs to him.
The person who has the first right of custody of a child, whether boy or girl, is its natural mother, not its mother through breastfeeding, as long as the child is young and needs custody. She is the most caring and compassionate. She is the one who worries when the child is ill and takes good care of it. This is what God has placed in human nature. A difference in religion does not affect the right of custody, because custody relates to the care of the child and this is something that is not affected by a difference in religion. Therefore, a non-Muslim mother, whether she is Jewish, Christian, pagan or Zoroastrian, has the first claim to the child’s custody until the child is aware of religion or unless it is feared that the child will be leaning towards disbelief, even though it does not yet understand the meaning of faith. Thus, if it is feared that the child might be leaning to disbelief it is taken away from its mother, even though it does not understand what belief and faith means.
In conclusion: ‘If it is feared that the mother will give the child wine or feed him with pork and bacon, the child is taken away and its custody is given to a Muslim.’ It is clear that the mother’s custody is removed by a judge.
To sum up: a non-Muslim mother has the first claim to the custody of her child until it can understand religion and there is no fear that the child will beome familiar with the beliefs and habits of non-Muslims. If there is such a fear, then the non-Muslim woman loses her right to custody of the child. The decision on custody is then left to the judge, unless there is a woman who can take custody and no fear of the child becoming familiar with the beliefs and habits of non-Muslims is associated with her. Custody of a Muslim child is given to one from whom there is no fear with regard to the child’s person, faith, moral values and behaviour.
With regard to a particular question, custody of a young girl is given to her mother, unless it is feared that the girl will become familiar with the beliefs and habits of non-Muslims. If this is feared, then custody is transferred to her paternal grandmother.
Majallat al-Buhuth al-Islamiyyah, published by the Permanent Committee for Research and Fatwa
Al-Nawawi wrote in Rawdat al-Talibin: Custody of a child belongs to the child’s mother if she wants it, but there are some conditions. One of these is that she should be a Muslim, if the child is considered Muslim because its father was a Muslim. No unbeliever may take custody of a Muslim child. However, al-Istakhri says that she may. It is also said that a mother who follows a divine religion has a stronger claim to the child’s custody than its Muslim father until the child is seven years of age. Its custody is then transferred to the father. Our scholars say that the first view is the correct one.
In light of this, the child’s custody belongs to its Muslim relatives, according to their order. If none of these is available, then its custody belongs to the Muslim community. If a non-Muslim child describes Islam it is taken away from non-Muslims, whether we ascertain its belonging to Islam or not. They are not allowed to take custody of the child. The custody of an unbeliever or insane child is given to its Muslim relative, because the child benefits by that.
Shaikh Ibraheem al-Naifar
The question says: a Muslim man married a Jewish-French woman, and she gave birth to several children. He passed away and the children were in their mother’s custody. She wanted to take them to France, but their paternal uncle objected and wanted to take custody away from her. To do so he applied to a French court. What is the Islamic view?
The answer is that women have the best claim to custody, because they are more caring and compassionate to children. Furthermore, they are better able to attend to the children’s needs and they show great patience with them. Al-Qarafi said: ‘The general Islamic rule is that everything is given to those who are better able to attend to it and can understand it better. Therefore, army command is given to those who know the strategy of war and can keep the army in discipline and work out a battle plan. In the legal system, judicial posts are given to those who know the law and its rules, and how to apply to these. In custody, preference is given to those who are better able to take care of the child and ensure its cleanliness in body and clothes, etc.’
The woman who has the strongest claim to custody is the child’s mother, because she is very compassionate to her own child. None is more compassionate than a mother except God. Therefore, He has forbidden separating a child from its mother. In an authentic hadith it is written:
‘Whoever separates a mother from her child, God will separate him from his loved ones on the Day of Judgement.’
In another hadith:
‘No mother should be left in worry about her child.’ [Abdullah ibn 'Amr reported: ‘A woman said: “I have born this son of mine in my tummy and reared him close to me, and I nursed him on my breast. Yet his father wants to take him away from me.” The Prophet said: “You have better claim to him unless you get married.”’
(Related by Ahmad, hadith No. 6,707; Abu Dawud, hadith No. 2,276)
The hadith makes clear that unless the child’s mother marries another husband, she is more entitled to its custody. When she is married to another husband she will be preoccupied with her new duties and her husband may not allow her to take proper care of the child, whom he may not love. He may, for example, not let her keep the child close to her at night. He will not have the same emotional attachment towards the child that its own father has.
Just like she loses her right to custody of the child when she gets married, she also loses it if she is not a Muslim. She may give it wine or feed it with pork and bacon, or bring it up as a non-Muslim, while the child should actually be brought up to follow its father’s faith. If this is feared, then she has no right of custody, unless she is placed with Muslims who will ensure that nothing of this happens and the child is brought up as a Muslim. If she agrees to this and stays with Muslims she retains her right of custody; otherwise the child is taken away from her and given to the next one who meets the conditions of custody.
In conclusion we may say in answer to the question that this Jewish woman may well bring her children up as non-Muslims and teach them values and manners that are different from those of Muslims. She has refused to live with Muslims and as such she has no right of custody. On the point of the right of custody of a non-Muslim woman, Khalil said: ‘If this is feared she is joined to Muslims, even though she may be a Zoroastrian whose husband converted to Islam.’ However, she is not denied the right to visit her children and attend to them in the presence of Muslims.
- Al-Zaitoona Magazine.
- The Egyptian Dar al-Ifta.
- The Assembly of Muslim Jurists of America.
- Majallat al-Buhuth al-Islamyyah published by the Permanent Committee for Research and Fatwa in Saudi Arabia.
- Published in Majallat al-Buhuth al-Islamyyah, No. 53, p. 168.
- Al-Zaitoona Magazine, 9/15.