Who has the right of child custody after divorce in Islam?
This is the most concerning issue that cause of fitnah now a days. First of all a man and woman should try to not end their marriage. Divorce should definitely be avoided as much as possible,especially in the case where children are involved.
The Messenger of Allah (Allah bless him & give him peace) said:"Divorce is the most hated of all lawful (halal) things in the sight of Allah"(Sunan Abu Dawud, no. 2178)
Custody of the child:
As a general rule of Islamic shariah, when a divorce takes place the right of custody in the case of minor children is awarded to the mother first if she does not remarry.
This is indicated by the hadeeth of "Abd-Allah ibn'Amr (may Allah be pleased with him) according to which a woman said: O Messenger of Allah, 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 Allah (peace and blessings of Allah 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 inSaheehAbi Dawood, and classed as saheeh by Ibn Katheer inIrshaad al-Faqeeh(2/250).
If mother remarries then her right of custody is there after passed on to her mother, children's maternal grandmother.
Ages of children in Shariah:
This right can be effected in the case of a male up to the age of seven and in the case of a female up to the age of nine.
When the male child reaches seven years of age, he gets to choose between staying with his mother or his father. He will go with whomever he wants to.
A woman came to the Prophet (peace be upon him) and said: "My husband wants to take my son away from me"The Prophet (peace be upon him) said to the child: "This is your father and this your mother, so take the hand of whom you like."The boy took the hand of his mother and they went together. [Sunan al-Tirmidi]
When the male child reaches seven years of age, he gets to choose between staying with his mother or his father. He will go with whomever he wants to.
A woman came to the Prophet (peace be upon him) and said: "My husband wants to take my son away from me"The Prophet (peace be upon him) said to the child: "This is your father and this your mother, so take the hand of whom you like."The boy took the hand of his mother and they went together. [Sunan al-Tirmidi]
On the other hand, when a female child becomes nine years old, she stays with her father until she gets married. If the father cannot handle the responsibility of the girl or he neglects her, or if he is a man of bad character, then the mother will take charge and have custody of the daughter.
And Allah knows best.
And Allah knows best.
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