Salam all.

I am asking this question because of a Muslim sister who is having issues in her marriage.

Her husband fails to provide for the family and he is hardly even around for days, the last time he showed up he disappeared again for a month and then sent a text to his wife saying she can leave if she is tired of the marriage but she must leave the children behind, she cannot take them with her.

She didn't do court marriage so she cannot fight for custody with Nigerian laws so what is she supposed to do regarding custody of the kids?

In Islam who keeps the kids after divorce, the man or woman?

Thanks for your help.

@ Abuheekmat, lukgaf, empiree, lanrexlan, Rashduct4luv and everyone else

nahzyla:
Salam all.

I am asking this question because of a Muslim sister who is having issues in her marriage.

Her husband fails to provide for the family and he is hardly even around for days, the last time he showed up he disappeared again for a month and then sent a text to his wife saying she can leave if she is tired of the marriage but she must leave the children behind, she cannot take them with her.

She didn't do court marriage so she cannot fight for custody with Nigerian laws so what is she supposed to do regarding custody of the kids?

In Islam who keeps the kids after divorce, the man or woman?

Thanks for your help.

@ Abuheekmat, lukgaf, empiree, lanrexlan, Rashduct4luv and everyone else

she can leave if she's tired of the marriage doesn't mean the husband has divorced her.

.
only if she wants to leave, she will do kulhu and she will return the mahr her husband gave her then..
..
she won't do idah..


Hadith

وَعَنِ ابْنِ أَبِي تَمِيمَةَ، عَنْ عِكْرِمَةَ، عَنِ ابْنِ عَبَّاسٍ، أَنَّهُ قَالَ جَاءَتِ امْرَأَةُ ثَابِتِ بْنِ قَيْسٍ إِلَى رَسُولِ اللَّهِ صلى الله عليه وسلم فَقَالَتْ يَا رَسُولَ اللَّهِ إِنِّي لاَ أَعْتُبُ عَلَى ثَابِتٍ فِي دِينٍ وَلاَ خُلُقٍ، وَلَكِنِّي لاَ أُطِيقُهُ‏.‏ فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم ‏

‏ فَتَرُدِّينَ عَلَيْهِ حَدِيقَتَهُ ‏"

‏‏‏ قَالَتْ نَعَمْ‏‏

Narrated Ibn `Abbas:

The wife of Thabit bin Qais came to Allah's Messenger (ﷺ) and said, "O Allah's Messenger (ﷺ)! I do not blame Thabit for any defects in his character or his religion, but I cannot endure to live with him." On that Allah's Messenger (ﷺ) said, "Will you return his garden to him?" She said, "Yes."



Sahih al-Bukhari 5275
In-book : Book 68, Hadith 24
USC-MSA web (English) : Vol. 7, Book 63, Hadith 198  (deprecated)


..

concerning who owns the kids.

the kids will be with the Mother until she remarries or he re marries..


I am still finding the hadith.. but that's the fact about the judgement.

..this is the hadith..

Hadith

حَدَّثَنَا مَحْمُودُ بْنُ خَالِدٍ السُّلَمِيُّ، حَدَّثَنَا الْوَلِيدُ، عَنْ أَبِي عَمْرٍو، - يَعْنِي الأَوْزَاعِيَّ - حَدَّثَنِي عَمْرُو بْنُ شُعَيْبٍ، عَنْ أَبِيهِ، عَنْ جَدِّهِ عَبْدِ اللَّهِ بْنِ عَمْرٍو، أَنَّ امْرَأَةً، قَالَتْ يَا رَسُولَ اللَّهِ إِنَّ ابْنِي هَذَا كَانَ بَطْنِي لَهُ وِعَاءً وَثَدْيِي لَهُ سِقَاءً وَحِجْرِي لَهُ حِوَاءً وَإِنَّ أَبَاهُ طَلَّقَنِي وَأَرَادَ أَنْ يَنْتَزِعَهُ مِنِّي فَقَالَ لَهَا رَسُولُ اللَّهِ صلى الله عليه وسلم ‏

‏ أَنْتِ أَحَقُّ بِهِ مَا لَمْ تَنْكِحِي ‏"

‏ ‏‏ ‏‏

Amr b. Shu'aib on his father's authority said that his grandfather (Abdullah ibn Amr ibn al-'As) reported:

A woman said: Messenger of Allah, my womb is a vessel to this son of mine, my breasts, a water-skin for him, and my lap a guard for him, yet his father has divorced me, and wants to take him away from me. The Messenger of Allah (ﷺ) said: You have more right to him as long as you do not marry.

Hasan (Al-Albani)

Sunan Abi Dawud 2276
In-book : Book 13, Hadith 102
English translation : Book 12, Hadith 2269

Get Hadith Collection (All in one)

....



Hadith

حَدَّثَنَا الْحُمَيْدِيُّ، حَدَّثَنَا الْوَلِيدُ، حَدَّثَنَا الأَوْزَاعِيُّ، قَالَ سَأَلْتُ الزُّهْرِيَّ أَىُّ أَزْوَاجِ النَّبِيِّ صلى الله عليه وسلم اسْتَعَاذَتْ مِنْهُ قَالَ أَخْبَرَنِي عُرْوَةُ عَنْ عَائِشَةَ ـ رضى الله عنها ـ أَنَّ ابْنَةَ الْجَوْنِ لَمَّا أُدْخِلَتْ عَلَى رَسُولِ اللَّهِ صلى الله عليه وسلم وَدَنَا مِنْهَا قَالَتْ أَعُوذُ بِاللَّهِ مِنْكَ‏.‏ فَقَالَ لَهَا ‏

‏ لَقَدْ عُذْتِ بِعَظِيمٍ، الْحَقِي بِأَهْلِكِ ‏"

‏‏‏ قَالَ أَبُو عَبْدِ اللَّهِ رَوَاهُ حَجَّاجُ بْنُ أَبِي مَنِيعٍ عَنْ جَدِّهِ عَنِ الزُّهْرِيِّ أَنَّ عُرْوَةَ أَخْبَرَهُ أَنَّ عَائِشَةَ قَالَتْ‏‏

Narrated Al-Awza:

I asked Az-Zuhri, "Which of the wives of the Prophet (ﷺ) sought refuge with Allah from him?" He said "I was told by 'Urwa that `Aisha said, 'When the daughter of Al-Jaun was brought to Allah's Messenger (ﷺ) (as his bride) and he went near her, she said, "I seek refuge with Allah from you." He said, "You have sought refuge with The Great; return to your family."



Sahih al-Bukhari 5254
In-book : Book 68, Hadith 4
USC-MSA web (English) : Vol. 7, Book 63, Hadith 181  (deprecated)

if her husband wants to divorce her, he must say it to her face to face.






NOTE : her husband cannot divorce her nor she can divorce her husband except she is clean NOT impure (mensurating)

Hadith

حَدَّثَنَا هَنَّادٌ، حَدَّثَنَا وَكِيعٌ، عَنْ سُفْيَانَ، عَنْ مُحَمَّدِ بْنِ عَبْدِ الرَّحْمَنِ، مَوْلَى آلِ طَلْحَةَ عَنْ سَالِمٍ، عَنْ أَبِيهِ، أَنَّهُ طَلَّقَ امْرَأَتَهُ فِي الْحَيْضِ فَسَأَلَ عُمَرُ النَّبِيَّ صلى الله عليه وسلم فَقَالَ ‏

‏ مُرْهُ فَلْيُرَاجِعْهَا ثُمَّ لْيُطَلِّقْهَا طَاهِرًا أَوْ حَامِلاً ‏"

‏ ‏‏ قَالَ أَبُو عِيسَى حَدِيثُ يُونُسَ بْنِ جُبَيْرٍ عَنِ ابْنِ عُمَرَ حَدِيثٌ حَسَنٌ صَحِيحٌ وَكَذَلِكَ حَدِيثُ سَالِمٍ عَنِ ابْنِ عُمَرَ وَقَدْ رُوِيَ هَذَا الْحَدِيثُ مِنْ غَيْرِ وَجْهٍ عَنِ ابْنِ عُمَرَ عَنِ النَّبِيِّ صلى الله عليه وسلم ‏‏ وَالْعَمَلُ عَلَى هَذَا عِنْدَ أَهْلِ الْعِلْمِ مِنْ أَصْحَابِ النَّبِيِّ صلى الله عليه وسلم وَغَيْرِهِمْ أَنَّ طَلاَقَ السُّنَّةِ أَنْ يُطَلِّقَهَا طَاهِرًا مِنْ غَيْرِ جِمَاعٍ ‏‏ وَقَالَ بَعْضُهُمْ إِنْ طَلَّقَهَا ثَلاَثًا وَهِيَ طَاهِرٌ فَإِنَّهُ يَكُونُ لِلسُّنَّةِ أَيْضًا ‏‏ وَهُوَ قَوْلُ الشَّافِعِيِّ وَأَحْمَدَ بْنِ حَنْبَلٍ ‏‏ وَقَالَ بَعْضُهُمْ لاَ تَكُونُ ثَلاَثًا لِلسُّنَّةِ إِلاَّ أَنْ يُطَلِّقَهَا وَاحِدَةً وَاحِدَةً ‏‏ وَهُوَ قَوْلُ سُفْيَانَ الثَّوْرِيِّ وَإِسْحَاقَ ‏‏ وَقَالُوا فِي طَلاَقِ الْحَامِلِ يُطَلِّقُهَا مَتَى شَاءَ ‏‏ وَهُوَ قَوْلُ الشَّافِعِيِّ وَأَحْمَدَ وَإِسْحَاقَ ‏‏ وَقَالَ بَعْضُهُمْ يُطَلِّقُهَا عِنْدَ كُلِّ شَهْرٍ تَطْلِيقَةً ‏‏

Salim narrated that:

His father divorced his wife during her menses, so Umar asked the Prophet about that and he said: "Tell him to take her back, then let him divorce her while she is pure or pregnant."

Sahih (Darussalam)

Jami` at-Tirmidhi 1176
In-book : Book 13, Hadith 2
English translation : Vol. 2, Book 8, Hadith 1176

One of the matters on which there is scholarly consensus is that the woman is more entitled to custody of the child so long as he has not reached the age of discernment, as the child at that stage needs the kind of compassion and care that only women can give, but this right is forfeited if the woman remarries, because she will be distracted by her new husband from taking care of her child, and because there is a conflict of interest between the child and the new husband. Ibn al-Mundhir (may Allaah have mercy on him) narrated that there was scholarly consensus that the mother’s right to custody is forfeited if she remarries. 

See: al-Kaafi by Ibn ‘Abd al-Barr (1/296); al-Mughni (8/194). 

This is indicated by the hadeeth of ‘Abd-Allaah ibn ‘Amr (may Allaah be pleased with him) according to which a woman said: O Messenger of Allaah, my womb was a vessel for this son of mine, and my breasts gave him to drink, and my lap was a refuge for him, but his father has divorced me and he wants to take him away from me. The Messenger of Allaah (peace and blessings of Allaah be upon him) said to her: “You have more right to him so long as you do not remarry.” Narrated by Ahmad (6707) and Abu Dawood (2276); classed as hasan by al-Albaani in Saheeh Abi Dawood, and classed as saheeh by Ibn Katheer in Irshaad al-Faqeeh (2/250). 


But make sure proper divorce or khullu is done before she leaves.

nahzyla:
Salam all.

I am asking this question because of a Muslim sister who is having issues in her marriage.

Her husband fails to provide for the family and he is hardly even around for days, the last time he showed up he disappeared again for a month and then sent a text to his wife saying she can leave if she is tired of the marriage but she must leave the children behind, she cannot take them with her.

She didn't do court marriage so she cannot fight for custody with Nigerian laws so what is she supposed to do regarding custody of the kids?

In Islam who keeps the kids after divorce, the man or woman?

Thanks for your help.

everyone else

walaikum Salam

I am not familiar with Nigeria family law. What I do know is that, regardless of whether they did court marriage or not, they may take their case to court or family court. I am sure they have such system in place in Nigeria.

Court only decides what's in the best interest of the child. Mind you, both parents are entitled to custody of their child. Again, what is in the best interest of the child is what's at stake. If husband is deemed irresponsible in the eyes of the law, which is detrimental to the child's well being, the mother takes custody base on info you provided (that husband appears to be in and out of his child life). Obviously this is unhealthy for the child.

This is not about who takes custody Islamically. Both parents are entitled but women tend to have more right due to their caring nature, perhaps. In this case, they are still legally married but they are only separated Divorce has yet to take place. Their case may have to be settled within the family if they aren't interesting in legal adjudication.

Again, in any sane court, interest of the child comes first. So taking custody depends on factors affecting either parents. A child can not be in environment that is unhealthy. There is possibility that they may reconcile after they calm their nerves and shun divorce. So Divorce is off the table for now. Telling his wife that she can go if she wants is not divorce or legal process.

Empiree:


This is not about who takes custody Islamically. Both parents are entitled but women tend to have more right due to their caring nature, perhaps. In this case, they are still legally married but they are only separated Divorce has yet to take place. Their case may have to be settled within the family if they aren't interesting in legal adjudication.

Again, in any sane court, interest of the child comes first. So taking custody depends on factors affecting either parents. A child can not be in environment that is unhealthy. There is possibility that they may reconcile after they calm their nerves and shun divorce. So Divorce is off the table for now. .

Thanks so much
The man doesn't want to outrightly pronounce talaq, he is just systematically distancing himself from her so that she will get tired and go and the blame of divorce will be on her not him.

Anyway from your post I think you are saying it is not a must for them to follow Islamic process in determining custody?
I doubt the mans family will let her go with the kids especially since she has no legal court marriage certificate. Her saving grace is to invoke Islamic law and involve imams in her area if they try to take her kids that's why I wanted to know what Islamic law states.

AbdulHakeem44:
One of the matters on which there is scholarly consensus is that the woman is more entitled to custody of the child so long as he has not reached the age of discernment, as the child at that stage needs the kind of compassion and care that only women can give, but this right is forfeited if the woman remarries, because she will be distracted by her new husband from taking care of her child, and because there is a conflict of interest between the child and the new husband. Ibn al-Mundhir (may Allaah have mercy on him) narrated that there was scholarly consensus that the mother’s right to custody is forfeited if she remarries. 


But make sure proper divorce or khullu is done before she leaves.

OK thanks so much.

So the custody of the children will go to the man if she remarries?
What if the man remarries, will she keep the kids because it seems he has a woman outside that he is planning to replace her with.

If she leaves her kids with him the new stepmother might maltreat them.

Abuheekmat:



concerning who owns the kids.

Thanks for the info.

I doubt the man will divorce her, he want her to pronounce the divorce so as to justify his taking the children from her, so that he can say she is the one that wants to end the marriage not him but from his actions he isn't interested in her anymore.

So what you are saying is that she can keep all her kids both male and female as long as she doesn't get married?

Will the man also give the kids to her if he remarries?

nahzyla:


Thanks for the info.

I doubt the man will divorce her, he want her to pronounce the divorce so as to justify his taking the children from her, so that he can say she is the one that wants to end the marriage not him but from his actions he isn't interested in her anymore.

So what you are saying is that she can keep all her kids both male and female as long as she doesn't get married?

Will the man also give the kids to her if he remarries?

if the man remarries.. the woman Will give him all the kid.
if she remarries, she will return the kids back to him.


..
it's best to settle their dispute instead of talaq

nahzyla:


Anyway from your post I think you are saying it is not a must for them to follow Islamic process in determining custody?
I doubt the mans family will let her go with the kids especially since she has no legal court marriage certificate. Her saving grace is to invoke Islamic law and involve imams in her area if they try to take her kids that's why I wanted to know what Islamic law states.

she can definitely seek assistance of Islamic leadership. And what I meant by "it is not necessarily Islamic thing" is about custody. Actually in most divorce cases, the process is identical with Islam and common law. The difference is Islam proceedings make sense in the sense of Will (ogun) than Western one. I think she should seek help from both families and call on local imams to intervene.

This may not resolve the issue permanently as the husband could do as he wishes after meeting. But court is the law. This is why I suggested family court.

Abuheekmat:



if the man remarries.. the woman Will give him all the kid.
if she remarries, she will return the kids back to him.


..
it's best to settle their dispute instead of talaq

Wow, so either way the man gets the kids whether he is the one remarrying or not?

He is not even a responsible person, left his family for a month and only sent text to his wife.

Empiree:
she can definitely seek assistance of Islamic leadership. And what I meant by "it is not necessarily Islamic thing" is about custody. Actually in most divorce cases, the process is identical with Islam and common law. The difference is Islam proceedings make sense in the sense of Will (ogun) than Western one. I think she should seek help from both families and call on local imams to intervene.

This may not resolve the issue permanently as the husband could do as he wishes after meeting. But court is the law. This is why I suggested family court.

Yes I believe family court would be best in this situation
I don't even know anything about family court, I will have to research it to see if it will help her keep the kids.

nahzyla:


Wow, so either way the man gets the kids whether he is the one remarrying or not?

He is not even a responsible person, left his family for a month and only sent text to his wife.

that's how Allah puts it.

Allah knows best..


..
no kid will forget nor not find his or her mother... no matter what the case may be..

the responsibility of taking care of children is for father not Mother..


.. when she remarries, she won't burden the new husband with the responsibility of her children.

Allah knows best.


.

like i said, it's best to settle the case..

let me give you an hadith on it..

unfortunately, I could not find the hadith..

but what's in the hadith is that,

to seek for kulhu from one's husband without any tangible reason forbids paradise fragrance from the lady..

Abuheekmat:


that's how Allah puts it.

Allah knows best..


..
no kid will forget nor not find his or her mother... no matter what the case may be..

the responsibility of taking care of children is for father not Mother..


.. when she remarries, she won't burden the new husband with the responsibility of her children.

Allah knows best.


.

like i said, it's best to settle the case..

let me give you an hadith on it..

@bold, I understand but the man can send money to the woman to cater for the kids right? The man is not ready to continue the marriage and he doesn't care for the kids.


Another thing is the womans daughter might need a female to guide her on everything about being a woman after puberty and the dad is not in a proper position to teach her those things. And fear of maltreatment from his new wife is another issue for the kids.

Can a concession be made in this case for her to keep the kids?

Or can they just separate without divorcing so that she can keep the children

Thanks for your time

Abuheekmat:
unfortunately, I could not find the hadith..

but what's in the hadith is that,

to seek for kulhu from one's husband without any tangible reason forbids paradise fragrance from the lady..

The man is the one seeking a meaningless end to the marriage not his wife.

Is there any punishment for him?

nahzyla:

The man is the one seeking a meaningless end to the marriage not his wife.
Is there any punishment for him?

he is a sinner..

both husband and wife should come together and settle their dispute

nahzyla:


@bold, I understand but the man can send money to the woman to cater for the kids right? The man is not ready to continue the marriage and he doesn't care for the kids.


Another thing is the womans daughter might need a female to guide her on everything about being a woman after puberty and the dad is not in a proper position to teach her those things. And fear of maltreatment from his new wife is another issue for the kids.

Can a concession be made in this case for her to keep the kids?

Or can they just separate without divorcing so that she can keep the children

Thanks for your time

all these things you are saying is very clear.

the only reason the woman would have the custody of the kids ..

is if the father is a kafir..


let me post the hadith

Hadith



حَدَّثَنَا إِبْرَاهِيمُ بْنُ مُوسَى الرَّازِيُّ، أَخْبَرَنَا عِيسَى، حَدَّثَنَا عَبْدُ الْحَمِيدِ بْنُ جَعْفَرٍ، أَخْبَرَنِي أَبِي، عَنْ جَدِّي، رَافِعِ بْنِ سِنَانٍ أَنَّهُ أَسْلَمَ وَأَبَتِ امْرَأَتُهُ أَنْ تُسْلِمَ فَأَتَتِ النَّبِيَّ صلى الله عليه وسلم فَقَالَتِ ابْنَتِي وَهِيَ فَطِيمٌ أَوْ شِبْهُهُ وَقَالَ رَافِعٌ ابْنَتِي ‏.‏ فَقَالَ لَهُ النَّبِيُّ صلى الله عليه وسلم ‏‏ اقْعُدْ نَاحِيَةً ‏"‏ ‏.‏ وَقَالَ لَهَا ‏"‏ اقْعُدِي نَاحِيَةً ‏"‏ ‏.‏ قَالَ وَأَقْعَدَ الصَّبِيَّةَ بَيْنَهُمَا ثُمَّ قَالَ ‏"‏ ادْعُوَاهَا ‏"‏ ‏.‏ فَمَالَتِ الصَّبِيَّةُ إِلَى أُمِّهَا فَقَالَ النَّبِيُّ صلى الله عليه وسلم ‏"‏ اللَّهُمَّ اهْدِهَا ‏"‏ ‏.‏ فَمَالَتِ الصَّبِيَّةُ إِلَى أَبِيهَا فَأَخَذَهَا ‏.‏"



Abd al-Hamid ibn Ja'far reported from his father on the authority of his grandfather Rafi' ibn Sinan that he (Rafi' ibn Sinan) embraced Islam and his wife refused to embrace Islam. She came to the Prophet (ﷺ) and said:

My daughter; she is weaned or about to wean. Rafi' said: My daughter. The Prophet (ﷺ) said to him: Be seated on a side. And he said to her: Be seated on a side. He then seated the girl between them, and said to them: Call her. The girl inclined to her mother. The Prophet (ﷺ) said: O Allah! guide her. The daughter then inclined to her father, and he took her.

Sahih (Al-Albani)

Sunan Abi Dawud 2244
In-book : Book 13, Hadith 70
English translation : Book 12, Hadith 2236

Hadith

حَدَّثَنَا سُلَيْمَانُ بْنُ حَرْبٍ، حَدَّثَنَا حَمَّادٌ، عَنْ أَيُّوبَ، عَنْ أَبِي قِلاَبَةَ، عَنْ أَبِي أَسْمَاءَ، عَنْ ثَوْبَانَ، قَالَ قَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم ‏

‏ أَيُّمَا امْرَأَةٍ سَأَلَتْ زَوْجَهَا طَلاَقًا فِي غَيْرِ مَا بَأْسٍ فَحَرَامٌ عَلَيْهَا رَائِحَةُ الْجَنَّةِ ‏"

‏ ‏‏

Narrated Thawban:

The Prophet (ﷺ) said: If any woman asks her husband for divorce without some strong reason, the odour of Paradise will be forbidden to her.

Sahih (Al-Albani)

Sunan Abi Dawud 2226
In-book : Book 13, Hadith 52
English translation : Book 12, Hadith 2218


this is the hadith on paradise

@Abuheekmat,

Thanks for taking the time to answer me so thoroughly, may Allah reward you.

I think the first thing is to advice the Husband to fear Allaah. Call on the Imams or family members he respects to talk to him.

Also the wife has to be patient. Most of our sisters nowadays are no more patient like the mothers of old. And we brothers of this day have grown more intolerant and harsh towards women! We pray Allaah save us from this cruelty.

The Prophet (Peace & Blessings of Allaah be upon Him) said: "How wonderful is the situation of the believer, for everything is good for him, and this applies only to the believer. If something good happens to him, he gives thanks for it, and this is good for him; if something bad befalls him, he bears it with patience, and this is also good for him." (reported by Muslim, may Allah have mercy on him, in al-Saheeh, no. 2999).

Think about the tragedy of divorce and what would happen to the family in this case. A wise woman may put up with something bad in order to avoid something even worse, because some evils are less than others.

Write him a letter, reminding him of the Prophet’s advice concerning women, e.g., ". . . Be kind to women, for they are your prisoners and you have no rights over them other than that. If they are guilty of clear immoral misconduct, then avoid them in their beds, and beat them, but not severely. If they then obey you, do not seek means of annoying them, for you have rights over your wives and they have rights over you. Your rights over your wives are that they should not allow anyone you dislike in your bed, and they should not let anyone whom you dislike enter your house. Their rights over you are that you should treat them well with regard to clothing and food." (Reported by al-Tirmidhi, no. 1163; he said: this is a saheeh hasan hadith.)

Supplication (du‘aa’) is the refuge of the believer. How many times, I wonder, have you prayed to Allah to reform your husband? Persist in du‘aa’ and seek ways of making Allah respond.

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Who has more right to custody in Islam?
8189

Publication : 02-01-2001

Views : 93136

Aa
Question
After a marriage that lasted for a few years, a man divorced his wife and tried to take the child from her. She is asking who has more right to custody of the child, her or her ex-husband? Especially since she is going to travel to live with her family in another city.
Answer

Praise be to Allaah.

Women have more right to custody of children than men; in principle custody belongs to them, because they are more compassionate and more kind, and they know better how to raise small children, and they are more patient in dealing with the difficulties involved. The mother has more right to custody of her child, whether it is a boy or a girl, so long as she does not re-marry and so long as she meets the conditions of custody. This is according to scholarly consensus.

The conditions of custody are: being accountable (i.e., an adult of sound mind etc.), being free (as opposed to being a slave), being of good character, being a Muslim if the child concerned is a Muslim, and being able to fulfil all obligations towards the child. The mother should not be married to a person who is a stranger (i.e., not related) to the child. If one of these conditions is not fulfilled and there is an impediment such as insanity or having remarried, etc., the woman forfeits the right to custody, but if that impediment is removed, then the right to custody is restored. But it is best to pay attention to the interests of the child, because his rights come first.

The period of custody lasts until the age of discretion and independence, i.e., until the child is able to discern what is what and is independent in the sense that he can eat by himself, drink by himself, and clean himself after using the toilet, etc.

When the child reaches this age, the period of custody ends, whether the child is a boy or a girl. That is usually at the age of seven or eight.

With regard to the effect of travelling on transferring custody, if the parents have separated and are disputing custody, any of the following scenarios may apply to their travelling:

1 – If one of the parents wants to travel without moving, i.e., he or she intends to come back, then the parent who is staying put has more right to the child.

2 – If one of them wants to travel for the purpose of settling there, and the new city or the route is dangerous, then the parent who is staying put has more right to the child.

3 – If one of them wants to move and settle within the same city, and the city and the route is safe,the father has right to the child than the mother, regardless of whether the one who is moving is the father or the mother.

4 – If both parents want to travel to the same place, then the mother should retain custody.

5 – If the place is nearby so that the father and child may see one another every day, then the mother should retain custody.

When the child reaches the age of independence, the period of custody comes to an end, and the period of kafaalah or sponsorship of the young begins, which lasts until the child reaches adolescence or in the case of a girls, starts her periods. Then the period of sponsorship ends and the child is free to make his own choices.

Women’s rights to sponsor children. It appears from the comments of the fuqaha’ that women have the right to sponsor children in general, and that mothers and grandmothers in particular have this right. But the scholars differed as to who has more right to sponsorship if the parents are in dispute and are both qualified to sponsor the child. The Maalikis and Zaahiris think that the mother has more right to sponsorship of the child, whether it is a boy or a girl. The Hanbalis think that boys should be given a choice, but the father has more right in the case of a girl. The Hanafis think that the father has more right in the case of a boy and the mother has more right in the case of a girl. Perhaps the correct view is that the child should be given a choice if the parents are disputing and they both fulfil the conditions for sponsorship.

The op, the commentators, may God bless you all. At least, we've learnt one thing this morning.

nahzyla:
Salam all.

I am asking this question because of a Muslim sister who is having issues in her marriage.

Her husband fails to provide for the family and he is hardly even around for days, the last time he showed up he disappeared again for a month and then sent a text to his wife saying she can leave if she is tired of the marriage but she must leave the children behind, she cannot take them with her.

She didn't do court marriage so she cannot fight for custody with Nigerian laws so what is she supposed to do regarding custody of the kids?

In Islam who keeps the kids after divorce, the man or woman?

Thanks for your help.

@ Abuheekmat, lukgaf, empiree, lanrexlan, Rashduct4luv and everyone else

السَّلاَمُ عَلَيْكُمْ وَرَحْمَةُ اللهِ وَبَرَكَاتُ

I thought there’s a ruling stating if the husband has refused to have sexual relationship with the woman for a period of time that it means they’re islamically divorced.


Kindly shed more light on this maybe the woman can use that avenue as her way out. That is if the Avenue is open to be used. Since the husband has refused to verbally divorce her.


@ Abuheekmat, lukgaf, empiree, lanrexlan, Rashduct4luv and everyone else

jomoh:


السَّلاَمُ عَلَيْكُمْ وَرَحْمَةُ اللهِ وَبَرَكَاتُ

I thought there’s a ruling stating if the husband has refused to have sexual relationship with the woman for a period of time that it means they’re islamically divorced.


Kindly shed more light on this maybe the woman can use that avenue as her way out. That is if the Avenue is open to be used. Since the husband has refused to verbally divorce her.


@ Abuheekmat, lukgaf, empiree, lanrexlan, Rashduct4luv and everyone else

I don't know of any hadith on that.
All I know is that it's sinful for a man to stay away from his wife for 3 days without any reason... Unless he's teaching her lesson ..


Quote and post the hadith here if you know it

jomoh:


السَّلاَمُ عَلَيْكُمْ وَرَحْمَةُ اللهِ وَبَرَكَاتُ

I thought there’s a ruling stating if the husband has refused to have sexual relationship with the woman for a period of time that it means they’re islamically divorced.


Kindly shed more light on this maybe the woman can use that avenue as her way out. That is if the Avenue is open to be used. Since the husband has refused to verbally divorce her.


@ Abuheekmat, lukgaf, empiree, lanrexlan, Rashduct4luv and everyone else

The important thing here is her children
The man wants to take them from her when he himself is not capable of caring for them. She isn't the one looking for divorce, he is the one sending divorce SMS instead of coming back to take care of his family.

nahzyla:


Thanks so much
The man doesn't want to outrightly pronounce talaq, he is just systematically distancing himself from her so that she will get tired and go and the blame of divorce will be on her not him.

Anyway from your post I think you are saying it is not a must for them to follow Islamic process in determining custody?
I doubt the mans family will let her go with the kids especially since she has no legal court marriage certificate. Her saving grace is to invoke Islamic law and involve imams in her area if they try to take her kids that's why I wanted to know what Islamic law states.

She doesn't need court marriage before claiming right for child (ten) custody. She will surely be given the children's custody and the husband will be compelled to pay for their upkeep. Let her approach court if she is no more interested in the marriage.

Housing:


She doesn't need court marriage before claiming right for child (ten) custody. She will surely be given the children's custody and the husband will be compelled to pay for their upkeep. Let her approach court if she is no more interested in the marriage.

Thanks, this is reassuring

The lady should approach the Sharia Council if she's in the southern Nigeria, or Sharia Court if she lives in the North.

Abuheekmat:
unfortunately, I could not find the hadith..

but what's in the hadith is that,

to seek for kulhu from one's husband without any tangible reason forbids paradise fragrance from the lady..

paradise fragrance ko paradise f*cking ni. Mtcheew show me where it is in the Qur'an. Mtcheew.

sarahade:



paradise fragrance ko paradise f*cking ni. Mtcheew show me where it is in the Qur'an. Mtcheew.

Confess, what exactly is your problem