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Exceptions in custody cases must be handled by an Islamic judge

Published: 23/08/2011 07:45:00 PM GMT
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I am a young widow with two minor girls who are in school. My husband's parents are not alive while mine are and my daughters are solely under my protection and care. Nobody from my husband’s side ever offered to take responsibility for the children. His elder brother, who looks after the company, has always been true and prompt in giving my husband's share of the profit in the company to us. Now, I have come across a very nice person whom I wish to marry. He likes the cildren and they too are very fond of him. He has no reservations on the children staying with us after our marriage and is glad to take up their responsibility. When I mentioned this to my husband's elder brother, he said that he wants to be the guardian of the children’s property. In Islam, is it necessary for a woman to forfeit custody of her children upon getting remarried? Can I not continue to be their natural guardian? Secondly, is there anything that prevents me from being the guardian to their property? I am well educated and my children’s well-being is of the highest priority to me.

Answered by

Sheikh Mûhammad al-Ghâmidî, professor at King Khâlid University

The mother is entitled to the custody of her children unless she gets remarried. Our Prophet (peace be upon him) told a woman: “You are more worthy for the custody of your child unless you get married” [Musnad Ahmad and Mustadrak al-Hâkim]

If the mother gets remarried and custody becomes an issue, then the right of custody transfers to her mother, then to the baby’s father, then to his mother, then to his father’s father, then to the sisters of the child, then to the child’s aunts.

Such is the order of priority for guardians. However, in some cases, custody will be awarded in consideration of the best interest of the child without any consideration to the above system. In this case, the child may stay with his mother even if she gets married, but all this can only be decided by the judge.

If the uncle of your daughters insists on being the guardian of your daughters, you must consult the proper Islamic judge in your area. The same thing applies to the guardianship of their properties. The whole matter is up to the judge.

Source: Islam Today

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