Allah’s Messenger Sallallaahu Alayhi Wa Sallam said, “Divorce is the most hated of all lawful (halaal) things in the sight of Allah” (Sunan Abu Dawud, no. 2178).
Q. Could I please have more information with regards to Shariah around the custody of children if a couple has gone through Talaaq and western divorce?
(Questions published as received)
A. If and when a marriage unfortunately comes to an end, the problems of the parties involved should not in any way affect the children. Children are a trust (amanah) from Allah and they should be treated and looked after in a proper manner.
They have many rights, of which two are of utmost importance: to receive proper care and love, and the other proper upbringing (tarbiyah). These rights of a child cannot be fulfilled except with the joint endeavour of the parents. The love, care and attention of the mother is just as important as the upbringing and training of the father.
In light of the above, divorce should definitely be avoided as much as possible, especially in the case where children are involved.
However, if divorce did take place, and both parties demand their rights, then the right of custody will be in the following way. In should be remembered here that there is nothing wrong in making a mutual arrangement, as long as there is no objection from those who have a right to custody.
The mother has a right of custody for a male child until the child is capable of taking care of his own basic bodily functions and needs, such as eating, dressing and cleaning himself. This has been recognized at seven years of age. (Shaami)
In the case of a female, the mother has this right of custody until she reaches puberty. This has been declared at nine years of age. (al-Mawsili, al-Ikhtiyar li ta’lil al-mukhtar)
The reason for this is that, in the early years, the mother is more suitable for raising the young child (regardless of sex) with love, mercy, attention, and motherly care. The male child after reaching the age of understanding (7) is in need of education and acquiring masculine traits, which is why he is then transferred to the father. The female child, after reaching the age of understanding is in need of being inculcated with female traits, which she receives by living with her mother. After reaching puberty, she is in need of protection which the father offers.
However, the custody of either of the parents can be revoked should staying with him/her be detrimental to the child’s upbringing.
It should also be remembered that after the transferral of custody from the mother to the father, the boy remains in the custody of the father until puberty, at which point, if he is mature and wise, he is free to choose with whom to live, or to live on his own. As for the girl, custody remains with the father until she marries.
Irrespective of who (mother/father) has the rights of custody, the other party has visitation rights according to mutual understanding and consent. Generally, the party having the rights of custody uses the child as a weapon to punish the other party by depriving them of visitation rights. This is totally against the concept of Islam and a grave sin. It is also very harmful to the child.
At all times, the father of the child is responsible for maintaining the child; in the case of a female, until she marries; while in the case of a healthy male, until he reaches maturity. In the case of a disabled child (male or female) the father is permanently responsible.
When the mother has the rights of custody but does not have a shelter to stay in with the child, the father must provide shelter for both. (Shaami)
And Allah Knows Best
Jamiatul Ulama (KZN)
Council of Muslim Theologians