Darul Ifta Ibn Masood

Custody Of A Child

· 27 Safar 1448 AH1 min readEnglish

Question

I am separated from my husband and we share a two year old daughter. My daughter’s father is requesting that she spends a minimum of two nights every week with him. What is the Shar’i ruling of custodial rights in this case?

Answer

As per Islamic law, custody of a child in the case of separation between the spouses, revolves around both parents depending on the age and gender of the child. In the case of a boy, the mother is entitled to custody until the age of seven, and thereafter, the right of custody is transferred to the father. As for a girl, the mother is entitled to custody until she becomes Baaligh, whereupon she is subsequently transferred to the father.

Hence, in the queried scenario, the daughter must stay with you and the father does not have the authority to keep her for two nights. Yes, if he wishes to meet his daughter during the day, then he may do so.

References (Arabic / Urdu sources)

وَالْحَاضِنَةُ أُمًّا ، أَوْ غَيْرَهَا ( أَحَقُّ بِهِ ) أَيْ بِالْغُلَامِ حَتَّى يَسْتَغْنِيَ عَنْ النِّسَاءِ وَقُدِّرَ بِسَبْعٍ وَبِهِ يُفْتَى لِأَنَّهُ الْغَالِبُ .وَلَوْ اخْتَلَفَا فِي سِنِّهِ ، فَإِنْ أَكَلَ وَشَرِبَ وَلَبِسَ وَاسْتَنْجَى وَحْدَهُ دُفِعَ إلَيْهِ وَلَوْ جَبْرًا وَإِلَّا لَا ( وَالْأُمُّ وَالْجَدَّةُ ) لِأُمٍّ ، أَوْ لِأَبٍ ( أَحَقُّ بِهَا ) بِالصَّغِيرَةِ ( حَتَّى تَحِيضَ ) أَيْ تَبْلُغَ فِي ظَاهِرِ الرِّوَايَةِ )الدر المختار و حاشية ابن عابدين 6/566)

Answered by
Mufti Abdul Kader Fazlani
Checked & approved by
Mufti Yacoob Vally Saheb
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Questions about this ruling, answered only from the archive with sources.

Where scholars differ, it’s safer to take the more cautious view.

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Source: Darul Ifta Ibn Masood — https://fataawa.co.za/custody-of-a-child/
Fatawa SA: https://fatawa.co.za/fatwa/ibnmasood-44689

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