Islamic Fiqh > Marriage and family > Hadana (child custody) > Does custody lapse if the mother remarries?
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Updated on 25 September 2026 at 3:23 PM
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The jurists differed about the mother who is divorced and then remarries, the father being present: does her right of custody lapse or not? The majority of the people of knowledge, the Hanafis, the Malikis, the Shafi'is and the Hanbalis within the school (and Ibn al-Mundhir and others even report consensus on it), hold that when the mother remarries, her custody lapses, by the hadith already cited: "You have more right to him so long as you do not marry"; and because once remarried she is taken up with the husband's rights to the detriment of custody, to the father's advantage; and because her services become the property of another: she then resembles the slave woman.
Imam Ibn al-Mundhir (may Allah have mercy on him): all those whose opinions we retain among the people of knowledge agreed that the mother has no right over the child when she remarries (al-Ishraf, 5/171; al-Ijma', 394). Imam Ibn Hubayra (may Allah have mercy on him): they agreed that the mother's custody lapses when her husband consummates the marriage with her (al-Ifsah, 2/214). Imam al-Khattabi (may Allah have mercy on him): they did not differ over the fact that the mother has more right to the young child than the father so long as she does not remarry; once remarried, she has no right to custody at all; if she has a mother, the child's grandmother takes her place, then the maternal grandmothers so long as any of them remains (Ma'alim al-Sunan, 3/283).
Imam Ahmad, in a narration, holds that the right of custody over the daughter alone does not lapse even if the mother remarries, whereas for the boy, the mother's right lapses if she remarries. The narration about the little girl then differs: until the age of seven, according to one narration, and until menstruation or otherwise, according to a second. Such is also the view of al-Hasan al-Basri and Ibn Hazm without restriction: custody neither passes nor lapses from the mother by her marriage, whether the child is a boy or a girl; and they cite as evidence what Nafi' ibn 'Ujayr narrated from his father from Ali (may Allah be pleased with him):
Zayd ibn Haritha set out for Mecca and returned with the daughter of Hamza. Ja'far said: I will take her, I have more right to her: she is my paternal uncle's daughter and her aunt is with me, and the aunt is like a mother. Ali said: I have more right to her: she is my paternal uncle's daughter and the daughter of the Messenger of Allah (peace and blessings of Allah be upon him) is with me, and she has more right to her. Zayd said: I have more right to her: I set out to her, I traveled and I brought her back. The Prophet (peace and blessings of Allah be upon him) came out and, after mentioning a hadith, said: as for the little girl, I judge her for Ja'far: she will be with her aunt, and the aunt is like a mother.Authentic hadith narrated by Abu Dawud (2278)
He therefore judged her to the aunt while she was married, and said: "The aunt is like a mother": proof that the mother does not lose her right of custody over the little girl by remarrying (al-Mughni, 8/194).
Allah the Most High also said:
"The mothers suckle their children two full years."
Surah Al-Baqarah, 233
The bearing of the verse: it establishes that the mother has the right to nurse her young child, and no authentic text has ever come stating that her right of custody lapses if she marries. Likewise His word:
"Your stepdaughters who are in your care, born of your wives."
Surah An-Nisa, 23
And the hadith narrated by Bukhari from Anas (may Allah be pleased with him), who said:
The Messenger of Allah (peace and blessings of Allah be upon him) arrived in Medina and had no servant. Abu Talha took me by the hand and led me to the Messenger of Allah (peace and blessings of Allah be upon him) and said: O Messenger of Allah, Anas is an intelligent boy, let him serve you. I served him then on journeys and at home: he never said to me of anything I had done: why did you do it this way? nor of anything I had not done: why did you not do it?Narrated by Bukhari (2616)
There is no difference, in watching over and protecting, between the wife's stepson and the husband's stepdaughter; the stepson is even, in most cases, more compassionate and less harmful than the stepdaughter; what is considered in all of this is first the religion, then the good of this world. When the Messenger of Allah (peace and blessings of Allah be upon him) married Umm Salama, he confirmed her daughter Zaynab in her custody, and assigned the custody of Hamza's daughter to her aunt, whom he married to Ja'far ibn Abi Talib (may Allah be pleased with him), as has preceded (al-Mabsut, 5/207; al-Mudawwana al-Kubra, 5/361; Bidayat al-Mujtahid, 2/43; al-Hawi al-Kabir, 11/504; al-Muhadhdhab, 2/169; al-Bayan, 11/276-277; al-Muhalla, 10/504; al-Mughni, 8/194-195).
Ibn Qudama (may Allah have mercy on him) said: when the mother remarries, her custody lapses. Ibn al-Mundhir said: all those whose opinions we retain among the people of knowledge agreed on this; Shurayh judged accordingly, and it is the view of Malik, of al-Shafi'i and of the people of opinion; it was narrated from al-Hasan that marriage does not cause it to lapse. Muhanna narrated from Ahmad: if the mother remarries while her son is young, he is taken from her; he was asked: is the little girl like the boy? He said: no, the little girl remains with her until the age of seven. The apparent sense of this statement is that the mother's remarriage does not remove custody of the little girl, though it removes it from the boy. The reason goes back to what was narrated about Ali, Ja'far and Zayd ibn Haritha disputing the custody of Hamza's daughter: Ali said: she is my paternal uncle's daughter and I took her; Zayd said: she is my brother's daughter, for the Messenger of Allah (peace and blessings of Allah be upon him) had established brotherhood between Zayd and Hamza; Ja'far said: she is my paternal uncle's daughter and her aunt is with me. The Messenger of Allah (peace and blessings of Allah be upon him) said: "The aunt is like a mother," and handed her over to him: Abu Dawud narrated it in terms close to this meaning; he thus assigned custody to her while she was married. The first narration is the correct one, and Ibn Abi Musa said that it is acted upon, by the word of the Messenger of Allah (peace and blessings of Allah be upon him) to the woman: "You have more right to him so long as you do not marry": for once remarried, she is taken up with the husband's rights to the detriment of custody, to the father's advantage, and her services become the property of another: she resembles the slave woman. As for Hamza's daughter, he judged her for the aunt only because the latter's husband was among the people of custody, and no one matched him in entitlement except Ali; and Ja'far was given precedence because his wife was among the people of custody: he was therefore prior. Hence, any woman married to a man among the people of custody, like the grandmother married to the grandfather, does not lose her custody: the husband indeed shares parenthood and compassion for the child, and thus resembles the mother married to the father. If two paternal uncles dispute custody and one of them is married to the mother or the aunt, he has precedence, by the hadith of Hamza's daughter; and likewise for two equal agnates, one of whom is married to a woman among the people of custody: the latter is given precedence for that reason (al-Mughni, 8/194-195; Manar al-Sabil, 3/208-209).
They then differed: does custody lapse from the moment of the contract or upon consummation? The Hanafis, the Shafi'is and the Hanbalis within the school hold that the mother's custody lapses from the moment of the contract, by the word of the Prophet (peace and blessings of Allah be upon him): "You have more right to him so long as you do not marry," and the marriage already existed before consummation; for by the contract, the husband acquires the benefits of his wife and becomes entitled to prevent her from keeping his child: her right therefore vanishes as if she had been consummated with. The Malikis (and it is a possibility mentioned by Ibn Qudama) hold that her custody lapses upon consummation: it is that indeed which keeps her occupied to the detriment of custody. Ibn al-Qayyim (may Allah have mercy on him) said: his words "so long as you do not marry" were disputed: do they mean the mere contract, or the contract along with consummation? There are two views on this. The first: by the mere contract her custody lapses, the view of al-Shafi'i and Abu Hanifa: for by the contract the husband acquires the benefits of enjoyment and the right to prevent her from keeping the child. The second: her custody does not lapse except by consummation, the view of Malik: for it is consummation that realizes her preoccupation to the detriment of custody. The hadith admits both, and the more apparent is the lapse of her custody at the contract: she then stands in the position of being occupied away from the child and of preparing for consummation, and her situation is judged accordingly. This is the view of the majority (Zad al-Ma'ad, 5/454; al-Mughni, 8/194-195; al-Fawa'ih al-Dawani, 2/66, and the preceding sources).
The Malikis first: if the guardian of the child in custody knows that the custodian has remarried and that her husband has consummated the marriage, and remains silent about it for a year or more, he can no longer take back the child and has no right to remove him from her: he is indeed thereby counted as having waived his right, for his silence, with knowledge, over this period is proof that he relinquished that right (al-Taj wa-l-Iklil, 3/262; Sharh Mukhtasar Khalil, 4/213; al-Sharh al-Kabir with al-Dasuqi, 3/513; Tahrir al-Mukhtasar, 3/445).
Secondly: that the mother marry a relative of the child whose marriage to her is unlawful (a blood mahram). The generality of the jurists, the Hanafis, the Malikis within the school, the Shafi'is in the soundest view, and the Hanbalis, state that if the mother marries a blood mahram relative of the child, such as the boy's paternal uncle or his paternal cousin, or the grandfather marrying the grandmother, her right of custody does not lapse: the man she married indeed has a right to custody, and his compassion for the child moves him to watch over him, so that both cooperate in his care, as in the father's marriage: no estrangement can come from either of them, the obstacle being the kinship itself, the source of compassion. The Prophet (peace and blessings of Allah be upon him) moreover judged Hamza's daughter for her aunt while the latter was married to her father's paternal cousin, by the hadith of Nafi' ibn 'Ujayr cited above (an authentic hadith narrated by Abu Dawud, 2278).
The Shafi'is against the soundest view, and some Malikis, hold that her right is void, she being occupied with her husband: she then has no right to custody at present and resembles a stranger. Al-Khatib al-Shirbini (may Allah have mercy on him) said: the point of dispute arises when the husband she married agrees to her keeping the child; otherwise her custody lapses categorically: he has the right to prevent her from it (Mughni al-Muhtaj, 5/195-196; see also Bada'i' al-Sana'i', 4/42; al-Ikhtiyar, 4/17; al-Taj wa-l-Iklil, 3/262; Sharh Mukhtasar Khalil, 4/213; al-Sharh al-Kabir with al-Dasuqi, 3/513; Tahrir al-Mukhtasar, 3/445; al-Najm al-Wahhaj, 8/302; Tuhfat al-Muhtaj, 10/252-253; al-Mughni, 8/194; al-Kafi, 3/384; al-Mubdi', 8/235).
The Malikis added cases in which custody does not lapse. They state that the custody of a mother married to a stranger does not lapse in the following cases:
The generality of the jurists state that whoever is among the people of custody and entitled to it, whose custody lapsed on account of an obstacle, or through the waiver of the right-holder, regains custody when the obstacle, such as madness or immorality, disappears, or when the custodian waived her right and then returned to claim it: the cause of custody indeed subsists, and it was only suspended by an obstacle; once the obstacle is gone, the right returns through the original cause. This is an agreed point among the generality of the jurists, except for one Maliki view that will be explained.
Ibn Qudama (may Allah have mercy on him) said: every kinship through which custody is acquired, if an obstacle barred it, such as slavery, disbelief, immorality, madness or minority, has its right restored once the obstacle is removed: the slave once freed, the disbeliever once converted, the immoral once made upright, the mad once restored to reason, the minor once grown, regain their right of custody; the cause indeed subsists, and it was only suspended by an obstacle: the obstacle gone, the right returns through the original cause that accompanies it, like the divorced wife whose right returns (al-Mughni, 8/198).
They nevertheless differed on the following question.
The mother's custody lapses through remarriage; the jurists then differed: if she divorces or her husband dies, does custody return to her a second time? This case has two scenarios, according to whether the divorce is irrevocable or revocable. First scenario: the irrevocable divorce. The jurists differed: if the mother is irrevocably divorced, does custody return to her a second time? The majority of the jurists, the Hanafis, the Shafi'is, the Hanbalis and some Malikis, hold that custody returns to her when she divorces or her husband dies. The Prophet (peace and blessings of Allah be upon him) indeed tied the lapse of her custody to its cause, saying: "You have more right to him so long as you do not marry": custody therefore returns through divorce, for a ruling established through a cause disappears with the disappearance of that cause; the cause of the lapse of custody is marriage: when she divorces, the cause disappears and the ruling disappears with it, the obstacle being gone, the prohibition ceases and her right returns: she again becomes prior to the one who was less entitled than she, as she was before.
What grounds her right of custody is indeed her specific kinship; the obstacle of marriage was only added to it for what it entails: the loss of the child, his being taken up with the rights of the foreign husband to the detriment of his interests, and the child's being fed and raised amid the well-being of strangers to his kin, with fault and reproach upon them. Once the marital bond is cut by death or separation, the obstacle disappears, the cause subsists, and its effect follows. The lapse of her custody through marriage is moreover like its lapse through madness or immorality: she returns to her right through the recovery from madness and the return to uprightness after immorality; likewise she returns through divorce after marriage, a ruling tied to a cause entailing its lapse through the disappearance of that cause. Thus it is for every man among the people of custody affected by an obstacle, such as disbelief, slavery, immorality or Bedouin life: he has no custody; if the obstacles disappear, their right of custody returns, and so it is with marriage and dissolution (Bada'i' al-Sana'i', 4/42; al-Ikhtiyar, 4/17; al-Bahr al-Ra'iq, 4/183; Hashiyat Ibn Abidin, 3/566; al-Hawi al-Kabir, 11/509-510; al-Bayan, 11/277-278; al-Najm al-Wahhaj, 8/304-305; Mughni al-Muhtaj, 5/196-197; al-Mughni, 8/189; Sharh al-Zarkashi, 2/574; Zad al-Ma'ad, 5/452-453; al-Insaf, 9/425).
The Malikis, in the famous view, hold that custody does not return to the mother if she divorces or her husband dies; likewise if she had married through an invalid contract later annulled, or if she had waived her right of custody: the right of custody does not return to her and custody lapses definitively. The basis of this is that the Prophet's words (peace and blessings of Allah be upon him) "so long as you do not marry" express a time limit: your right to custody is limited until the time of your marriage; when she marries, the term of custody expires, and it does not return after its term has run out, as when the term ends through the child's maturity and his independence from her (al-Taj wa-l-Iklil, 3/265-266; Sharh Mukhtasar Khalil, 4/216-217; al-Sharh al-Kabir with al-Dasuqi, 3/517-518; Tahrir al-Mukhtasar, 3/449; Hashiyat al-Sawi, 6/188; Tafsir al-Qurtubi, 3/166; al-Qawanin al-Fiqhiyya, 1/149).
The jurists differed: if the wife is revocably divorced, does the right of custody return to her even before her waiting period ends, or only after its term? The Shafi'is and the Hanbalis within the school hold that there is no difference between the revocable divorce and the irrevocable one: by divorcing, she has indeed freed herself before any taking back, and has thereby become, regarding entitlement to custody, like the woman free of any bond, just as she became like her regarding the lawfulness of disposing of herself; if the husband takes her back during the waiting period, her custody lapses through his taking her back.
She is moreover divorced: her right of custody has therefore returned as in the irrevocable divorce; he has indeed separated her from his bed, with no division remaining for him and no occupation on her part, and the cause of the marriage's dissolution has begun: she therefore resembles the irrevocably divorced woman during her waiting period. If, however, he returns to her (by taking her back) or takes the oath of abstention (ila'), she is no longer entitled to custody, the marital bond remaining for her, unlike the revocably divorced woman.
The Hanafis, al-Muzani among the Shafi'is, and the Hanbalis in one view, hold that in a revocable divorce, custody returns only at the end of the waiting period: the taking back, indeed, not being forbidden, the rulings of the marital bond apply to her (Bada'i' al-Sana'i', 4/42; al-Ikhtiyar, 4/17; al-Bahr al-Ra'iq, 4/183; Hashiyat Ibn Abidin, 3/566; al-Hawi al-Kabir, 11/509-510; al-Bayan, 11/277-278; al-Najm al-Wahhaj, 8/304-305; Mughni al-Muhtaj, 5/196-197; al-Mughni, 8/189; Sharh al-Zarkashi, 2/574; Zad al-Ma'ad, 5/452-453; al-Insaf, 9/425).
There is no disagreement among the jurists, as has preceded, that the mother divorced from her husband and not remarried has more right to the child. They also agree that the young boy is not given the choice between his parents before reaching the age of discernment, which is seven years; and the mother's right of custody is established until the age of discernment without disagreement among them (Jami' Masa'il, 3/426). They then differ about the child, boy or girl, who reaches seven years, when the parents dispute his custody: is he given the choice between his father and his mother, so that he goes to whichever he wants, or is he not, the child remaining then with his mother until maturity, or until marriage in the case of the girl? This is a point of disagreement among them.
The Hanafis and the Malikis hold that the child remains with his mother and is not given the choice before maturity. The Malikis said: the boy remains with his mother until he reaches maturity, and the little girl until she marries and her husband consummates the marriage: the daughter indeed needs to be protected and treated with care more than the son, and her maturity does not remove this need, for she is exposed to suitors, and at the very moment of maturity she does not know her own interests; moreover, husbands prefer the one whom her father and mother protect and who has not left their custody and care, over the one left to herself: her interest therefore lies in the right of custody continuing over her (al-Ma'una, 1/642; al-Taj wa-l-Iklil, 3/258; al-Sharh al-Kabir with al-Dasuqi, 3/508; Tahrir al-Mukhtasar, 3/437).
The Hanafis said: the boy remains with his mother or grandmother until he becomes self-sufficient, eating alone, drinking alone, dressing alone and performing his ablutions alone; once self-sufficient indeed, he needs to be disciplined and formed to the manners and morals of men, and the father is more capable of disciplining and forming. The mother and the grandmother have more right to the little girl until she reaches maturity: after self-sufficiency indeed, she needs to know the ways of women, and the woman is more capable of that; after maturity, she needs to be protected and preserved, and the father is stronger and more directing in that. According to Muhammad, the girl is handed over to the father when she reaches the age of desire, in view of the realized need for protection. Others than the mother and the grandmother have more right to the little girl until she reaches an age when she is desired: the right of these is not indeed acquired through parenthood, but only so long as the child needs custody; once he is independent of it, that meaning disappears (al-Hidaya, 2/38; al-Jawhara al-Nayyira, 5/77-79; Tabyin al-Haqa'iq, 3/48; al-'Inaya, 6/185-186).
The Hanafis and the Malikis argued against the choice by what 'Amr ibn Shu'ayb narrated from his father from his grandfather Abdallah ibn 'Amr, mentioned above: the Prophet (peace and blessings of Allah be upon him) did not give him the choice. Choosing for the young child is moreover not wise: dominated by his whim, he inclines toward the immediate pleasure of idleness, laziness, fleeing study and the learning of personal morals and the essentials of religion, and he chooses the worse of the two parents, the one who neglects him without disciplining him. It is moreover established that the Prophet (peace and blessings of Allah be upon him) judged Hamza's daughter for the aunt without any choice, though the mother has more right than she; and the meaning supports it: the son has indeed grown attached to her, and moving him away from her harms him.
As for the hadith of Abu Hurayra (may Allah be pleased with him) cited for the choice, what it means is the choice in favor of the adult: the woman said: "he benefited me and watered me from my father's well at Abi 'Inaba." The meaning of "he benefited me" is: he earned for me; and the adult is the one capable of earning: proof that the hadith concerns the choice in favor of the adult, and on this we say too: the child, once grown, chooses. He did not mention separation in it either: she was apparently living with them, do you not see her words: "my husband intends"; she would not have said that were she not living with them. And nothing in the hadith proves that he chooses at seven: his age is not mentioned in it (Bada'i' al-Sana'i', 4/43-44; al-Jawhara al-Nayyira, 5/78; Sharh Fath al-Qadir, 4/373; Tabyin al-Haqa'iq, 3/49; Ahkam al-Qur'an of Ibn al-'Arabi, 1/277-278; al-Istidhkar, 7/292).
The Shafi'is hold that when a woman separates from her husband during his lifetime while there is between them a child of seven years or more, who is discerning, and the two parents dispute his custody, the child chooses between them; whichever of them he chooses, he stays with him, the boy and the girl being equal in this, by what Abu Hurayra (may Allah be pleased with him) narrated:
A woman came to the Messenger of Allah (peace and blessings of Allah be upon him) and said: may my father and mother be ransomed for you: my husband intends to take my son, who has benefited me and watered me from my father's well at Abi 'Inaba. Her husband came and said: who will dispute my son with me? The Prophet said: O boy, this is your father and this is your mother, take the hand of whichever you wish. He took his mother's hand, and she went off with him.Authentic hadith narrated by al-Nasa'i (3496)
The choice between them is nevertheless established only if each of the two is fit for custody: if one of them is a slave, impaired, immoral or a disbeliever, there is no choice between him and the other, for he has no right to his care. If he chooses both of them, they are decided between by drawing lots: they cannot indeed join together in keeping him, and neither has precedence over the other, so drawing lots becomes obligatory. And if he chooses neither, they are also decided by lot: he cannot indeed be left alone before reaching maturity, for he would be lost, and neither has precedence over the other: the lot therefore becomes obligatory. If he chooses one of them, one looks: if he chooses his mother, he is with her by night, and the father takes him by day and places him in school or in a trade, for the aim is the child's share, and this is his share. If he chooses his father, he is with him by night and day, without his mother being prevented from visiting him: preventing that would indeed tempt toward disobedience and the severing of kinship. If he falls ill, the mother has more right to nurse him in her home: when ill indeed, he is like the young child, needing someone to attend to him, so the mother is prior to him. If it is a little girl who chooses one of them, she is with him night and day, and the other is not prevented from visiting her, without lingering or taking up residence: the separation of the spouses indeed prevents either from taking up residence in the other's home. If she falls ill, the mother has more right to nurse her in her own house; and if one of the parents falls ill while the child is with the other, he is not prevented from visiting him nor from being present at his death. If he chooses one of them and is handed over to him, then chooses the other, he is transferred to him; and if he then returns to the first, he is returned to him: his choice indeed follows his whim, and he may wish to stay with one of them at one time and with the other at another: one follows what he wishes, as one follows what he wishes to eat and drink. And if he has no father, but a mother and a grandfather, he is given the choice: the grandfather is indeed like the father in the custody of the young child, so he is like the father in the choice of guardianship (al-Muhadhdhab, 2/171-172; al-Bayan, 287, 290; al-Najm al-Wahhaj, 8/304-305; Mughni al-Muhtaj, 5/197).
The madhhab of the Hanbalis is like the madhhab of the Shafi'is concerning the boy: he is given the choice if he reaches seven or eight years and is discerning, when his two parents dispute his custody; as for the little girl, she is not given the choice and remains with her father. The proof of the boy's choice at seven years is the hadith of Abu Hurayra (may Allah be pleased with him) cited above, and the consensus of the Companions: it was narrated that Umar (may Allah be pleased with him) gave a boy the choice between his father and his mother (Ibn Abi Shaybah in al-Musannaf, 2/236, no. 19456, authentic hadith). 'Amara al-Jurmi said: Ali let me choose between my mother and my uncle, and I was seven or eight years old (Ibn Abi Shaybah in al-Musannaf, 2/239, no. 19468, authentic hadith). These accounts are widely known and were not objected to: they therefore amount to consensus. Precedence in custody indeed attaches to the child, and priority is given to the most compassionate, for the child's share with him is greater; we considered compassion according to its manifestations, so long as it is not considered in itself: when the boy reaches a degree at which he expresses his inclination and distinguishes between honor and its opposite, if he inclines toward one of the two parents, it is proof that this one is gentler and more compassionate toward him, and precedence is therefore given to him. We limited it to seven years, for it is the first state in which the Law commanded confronting him with the command of prayer; and the mother was given precedence during early childhood, for the need to carry him and attend to his care, for she is more expert and more accomplished in that; once he is independent of that, his two parents become equal through their nearness to him, and his choice prevails.
If he chooses his father, he is with him night and day, to be protected, taught and disciplined, without his mother being prevented from visiting him, nor he from visiting her: that would indeed tempt toward disobedience and the severing of kinship. If he chooses his mother, he is with her by night, for it is the time of returning to the dwellings, and with his father by day, to be disciplined and taught so as not to be lost: the day is indeed the time of affairs and the practice of trades. When he chooses one of them and is handed over to him, then chooses the other, he is returned to him; and if he then returns to the first, he is returned to him, and so on every time he chooses one of them: it is indeed a choice of whim for what soothes his own desire, and one follows what he wishes, as one follows what he wishes to eat and drink; he may wish to stay with one of them at one time and with the other at another, or wish for parity between them without being separated from either. And if he is given the choice and chooses neither of them, or chooses them both, they are decided between by lot: neither indeed has precedence over the other, and they cannot join in his custody; once decided by lot, if he then chooses the other, he is returned to him: we have indeed given his second choice precedence over the first, the lot being only a substitute.
As for the girl who reaches seven years, she is with her father by obligation until she marries: he is indeed more protective of her and more entitled to her guardianship, being near the age that makes her fit for marriage, and it is from her father that she is sought in marriage: he is her guardian and the most knowledgeable about the kuf' (a match of equal standing); the Law, finally, did not go so far as to give her a choice, and the analogy with the boy is not valid: he has no need of what the girl needs. Her father, and whoever stands in his place, prevent her from being alone, out of fear for her: one cannot indeed guarantee that corrupters will not enter upon her; her mother is not prevented from visiting her, nor she from visiting her mother, so long as no corruption is feared; and she is prevented from being alone with her if there is fear for her heart. Ibn Qudama (may Allah have mercy on him) said: the little girl with her mother or her father is with him night and day: her training and formation take place indeed inside the house, such as teaching her spinning, cooking and the like, and she has no need to leave it; neither of them is prevented from visiting her at the other's home, without the husband being alone with her mother, without lingering or taking up residence: the separation between them indeed prevents either from taking up residence in the other's home; and if she falls ill, the mother has more right to nurse her in her own house (al-Mughni, 8/191, 193; al-Kafi, 3/358; Sharh al-Zarkashi, 5/571; al-Mubdi', 8/237; Kashshaf al-Qina', 5/589, 591; Matalib Uli al-Nuha, 5/569-570; Manar al-Sabil, 3/212-213).
The Shaykh of Islam Ibn Taymiyya (may Allah have mercy on him) said: if the father is unable to protect her, or neglects her through being occupied away from her or through weak religion, while the mother attends to her protection, the latter is given precedence; likewise if he leaves her with the co-wife of her mother, who does not attend to her interest but harms her, while her mother attends to her interest without harming her: custody here belongs to the mother categorically; and were it granted that the choice is instituted and that she chose her mother, what would it be, other than this? It should be known that the Lawgiver gave no general text granting precedence to one of the two parents unconditionally, nor a choice given to one of the two parents unconditionally; and the scholars agree that the hostile, the neglectful, the corrupt and the harmful are not given precedence over the kind, the upright, the benevolent one who fulfills his duty (Majmu' al-Fatawa, 34/130, 132; al-Mustadrak 'ala Majmu' al-Fatawa, 5/85; Manar al-Sabil, 3/213-214).
The jurists differed about the boy or girl who has reached maturity: where do they live? Do they have the right to live alone, to reside wherever they wish without being compelled to remain with one of their parents, or are they compelled to? What the jurists of the four schools hold is that the mature, sane young person lives alone, apart from his two parents, without being compelled to reside with either of them. As for the girl, she is, according to the Hanafis, the Malikis and the Hanbalis, compelled to reside with one of her two parents according to the following detail; and according to the Shafi'is, she lives alone if she is trustworthy. As for the thayyib (a previously married woman), the majority permit her to live alone if she is trustworthy and there is no fear concerning her.
The Hanafis said: the boy, once mature and sane, may live alone: his father cannot attach him to himself without his consent, unless he is a corrupter and he is feared for: the father may then attach him to himself without his consent, out of regard for his own person and property, for once he has become mature and sane, the father has no hold left over his property, nor over his person; if he becomes prodigal, the father has the protective guardianship of his property, and likewise he may attach him to himself, either to ward off temptation, or to ward off disgrace from his own person, for a son's corruption exposes one to blame. As for the virgin girl, it is permissible for her father to attach her to himself after maturity, even without her knowledge and against her will, even if she is trustworthy: she has not indeed known men nor known their cunning, so deception on their part is feared for her. As for the thayyib, if she is trustworthy and temptation is not feared for her, he cannot attach her to himself: she has indeed known men and known their cunning, so one is reassured about her regarding deception, and his guardianship ceased with maturity: there is no need to detain her; if she is feared for, he may attach her to himself, as was said for the boy. The grandfather is like the father in this; and if she has neither father nor grandfather, but a brother or an uncle, the latter may attach her to himself if he is not a corrupter; if he is a corrupter, this is not allowed to him; and such is the ruling for every agnate who is a close mahram relative of hers. Likewise the virgin advanced in age: if she has reason and judgment and one is reassured about her regarding corruption, no one other than the father and the grandfather may attach her to himself; and if she is feared for, it falls to the brother, the uncle and their like among the agnates to attach her to themselves if they are not corrupters; and if she has neither father nor grandfather nor any other among the agnates, or there is a corrupting agnate, it falls to the judge to examine her situation: if she is trustworthy, he lets her live alone, whether she is a virgin or a thayyib; otherwise he places her with a trustworthy and reliable woman capable of protecting her: he is indeed appointed overseer of the Muslims (al-Mabsut, 5/212-213; Sharh Fath al-Qadir, 4/374; Tabyin al-Haqa'iq, 3/49-50; al-Jawhara al-Nayyira, 5/78; al-Bahr al-Ra'iq, 4/186).
The Malikis said: the girl is with her mother until she marries and her husband consummates the marriage, and she does not live alone; as for the boy, he has that right once he has become sane (al-Ma'una, 1/642; al-Taj wa-l-Iklil, 3/258; al-Sharh al-Kabir with al-Dasuqi, 3/508; Tahrir al-Mukhtasar, 3/437).
The Shafi'is said: when the boy becomes mature and sane and is self-sufficient, he is not obliged to reside with each of his parents, just as he is not obliged to be maintained: residence indeed follows maintenance; if they ask him to reside with them or with one of them, residence is not binding on him: he has indeed acquired the disposal of his own person; but it is recommended that he not separate from them, out of fidelity to their kindness and wariness of ingratitude toward them, and his residing with his father takes precedence over his residing with his mother, through kinship of nature and mutual aid in disposal and cooperation. If he refuses to remain with one of them, he is not compelled and commits no sin, so long as he does not pass from the degree of kindness to that of ingratitude. As for the girl who has come of age, her ruling is weightier: she is indeed an intimacy (awra) that gazes pursue and that suspicion precedes; it therefore devolves upon her and her parents to ward off slander from her, which is not incumbent upon them for the son. It is thus preferable that she not separate from either of her parents if they are kind, and her residing with her mother takes precedence over her residing with her father: the latter is indeed more capable of protecting her and more expert in managing her affairs, women knowing better than men the ways of women, as men know better than women the ways of men, through kinship of nature and likeness of morals. If she separates from her parents, her situation is examined: if suspicion vanishes from her through her separation, they may not object, though it is preferable that she not leave a kind father and mother; if suspicion is directed at her, it falls to her two parents, for her protection, to keep her from what dispels suspicion, by having her reside with one of them or with a trusted person of her family, women being preferable to men in that, out of abundant caution. If she asks to reside with one of her parents and he refuses, one looks: if it is for fear of her ingratitude toward him, she is compelled to reside with one of them; if it is to be relieved of the cost of residence, neither of them may be compelled to it, just as he cannot be compelled to her maintenance, while it is disapproved of them to abandon her. Once married, the father becomes more entitled over her than both. Widowed by the husband's death or by divorce, her situation regarding living apart from her parents, after widowhood, becomes lighter: she has indeed known and passed out of the state of the first time (virginity), so solitary living is no longer disapproved for her; and if suspicion appears concerning her after widowhood, the two parents attend to dispelling it (al-Hawi al-Kabir, 11/511; al-Bayan, 10/274).
The Hanbalis said: if the child is mature and sane, there is no custody over him: he has indeed become self-sufficient and able to set his affairs right by himself, so the restriction upon him must be dissolved, and the choice is his to reside with whichever of his parents he wishes, no guardianship having been established over him for either. If he is a male, he has the right to live alone, independent of them, while it is recommended that he not separate from them nor cut off his kindness toward them. If it is a girl, she has no right to live alone, and her father has the right to prevent her from it: one cannot indeed guarantee that those who would corrupt her and bring disgrace upon her and her family will not enter upon her; and if she has no father, it falls to her guardian and her family to prevent her from it (al-Mughni, 8/191; al-Kafi, 3/386-387; Kashshaf al-Qina', 5/588).
Ibn Taymiyya says further: she is maintained to the extent of her custody, if in her absence they would have no substitute custodian: in this second view, nothing less than maintenance is given to her. It has been said: if she became widowed on their account and she is the custodian attending to them, the whole maintenance is due to her, even if it exceeds the rent: if she were indeed to leave them to marry, someone would come who would maintain her; the children's remaining within her sight and her care is therefore counted among the child's rights. And if she did not become widowed on their account, or is of an age when one no longer marries, she has only the rent, even if it is less than her maintenance. And according to the famous view, the custodian, whether the mother or another, receives the child's food, clothing and needs from his father, by the judge's estimation or another's, in view of his situation: by the day, the week, the month, in kind or in price. The father may not say to the custodian: "send him back to me, that he may eat with me and then return to you": in this there is harm to the child and a failing in his protection, and she need not accept it (al-Taj wa-l-Iklil, 3/267; Mawahib al-Jalil, 5/477-478; Sharh Mukhtasar Khalil, 4/219; al-Sharh al-Kabir with al-Dasuqi, 3/520; Tahrir al-Mukhtasar, 3/451; Hashiyat al-Sawi on al-Sharh al-Saghir, 6/191).
The jurists differed about the mother who is custodian: is the rent of the custody lodging due from the child's property, from his father's property, or from whoever owes his maintenance? Or is nothing due to her, it being on the mother? Or is it due if the mother has no lodging, and not due if she has one? Or is each one's rent due proportionally: the kept child's lodging from his own property or his father's, and hers from her own? They made a detailed ruling on this.
The Hanafi jurists differed over upon whom the rent of the lodging falls. Some said: the custodian's lodging falls upon the father. Abu Hafs was asked about the woman who keeps the child while having no lodging of her own: does the father owe her lodging and her child's lodging? He said: yes, he owes the two lodgings. Najm al-A'imma al-Bukhari was asked about the preferred view in this question, and said: the preferred view is that lodging is due to her for the custody, and Ibn al-Shihna relied upon it. Another view among them: the rent is due if the child has property, otherwise it falls upon whoever owes his maintenance. Ibn Wahban and his teacher al-Tarsusi preferred that no lodging is due to the custodian. Ibn Abidin (may Allah have mercy on him) said: the conclusion is that the sound view is the obligation of the lodging's rent, otherwise the child would be lost if the custodian has no lodging; but if she has a lodging in which she can keep the child, who resides there following her, the rent is not due to her, for lack of the child's need. Nothing is more considerate of both sides: let this view therefore be followed (Hashiyat Ibn Abidin, 3/562; Tanqih al-Fatawa al-Hamidiyya, 1/408; al-Bahr al-Ra'iq, 4/183).
Imam Abu Ja'far al-Tahawi (may Allah have mercy on him) treated of the rent of the lodging of the one who has custody of the young child, and said: what we learned from those of our companions who hold that the woman entitled to the young child's custody has no rent of lodging to receive from his property for the house in which she keeps him; and such is the view of Malik: the rent of lodging is due to her only if she has maintenance from the man, whereas this one, the irrevocably divorced woman, has none; al-Layth said the same. Others said: the rent of the custody lodging falls upon the young child if he has property, otherwise upon whoever owes his maintenance; this was narrated from al-Shafi'i, though we find no narration of it (Mukhtasar Ikhtilaf al-'Ulama', 2/460-461).
The Malikis said: the lodging of the child in custody falls upon his father unanimously; they differed over the mother's lodging: does it fall upon the father or upon her? The view of the Mudawwana is that the mother's lodging falls upon the father as well: it is the view of Imam Malik; the lodging of the custodian and of the child in custody together therefore falls upon the father, without estimation, according to the madhhab of the Mudawwana. Sahnun said: the child's lodging falls upon his father; and the custodian bears what concerns her own person, by the judge's estimation, meaning that he distributes it between them: he sets, for example, half the rent of the lodging upon the father of the kept child and the other half upon the custodian, or a third upon the father and two thirds upon the custodian, or the reverse: what concerns the child weighs upon his property or his father, and what concerns her upon her. It has also been said: the distribution is made by heads, the child in custody possibly being more than one.
As for the Shafi'is, Imam Ibn Hajar al-Haytami (may Allah have mercy on him) was asked about the custodian mother who claims the rent of the lodging in which she keeps her children: must the father rent the lodging or not? Does her custody lapse if she has no lodging, or not? Does the lodging's rent fall within the burden of custody, or not? He answered: the custodian mother, if she is within the marital protection of the husband father, the lodging is upon him; otherwise she has only the wage of custody, from which she rents a lodging if she wishes; and her custody does not lapse for lack of owning a lodging or the like (al-Fatawa al-Fiqhiyya al-Kubra, 4/216).
The Shaykh of Islam Ibn Taymiyya (may Allah have mercy on him) was asked about a man unable to maintain his daughter, absent from her: she is with her mother and her grandmother, who maintain her though they are well-off, with no duty upon him. May they recover the maintenance for the period during which he was unable to maintain? And does the ruling follow, regarding his insolvency, his word if no property is known for him, or the claimant's? And if he resides in the country where his daughter's property is and intends to take his daughter with him on a journey of relocation, custody then belonging to her mother? He answered: as for the period during which he was unable to maintain, no maintenance weighs upon him, and whoever spent during that period without his permission recovers nothing, without dispute among the scholars. The dispute concerns only one who spends without permission while maintenance is obligatory upon the father: it is then said that the non-gratuitous spender recovers what he spent, as in the madhhab of Abu Hanifa, al-Shafi'i and Ahmad in one view; and he may not be detained for this maintenance, nor for its recovery, so long as the obligation is not proven through his solvency; if they differ over his solvency and no property is known for him, the ruling is his word with his oath. If he resides in a country other than the mother's, custody belongs to him and not to the mother, though the mother has more right to custody in a single country: and this too is the madhhab of the four imams, and Allah knows best (Majmu' al-Fatawa, 34/103).
The Shaykh of Islam Ibn Taymiyya (may Allah have mercy on him) was also asked about a divorced man who had by his wife a child who had reached seven years of age, whose religious duties they wanted to instill in him; the mother had remarried, the grandmother took him into custody, equipped the keeper, and they traveled with him to Alexandria, keeping him hidden for seven years; he was then demanded the religious duties of the past years. He answered: if a judge has ruled for him, his mother may not hide him from him; having hidden him in this state, she cannot claim the imposed religious duties, nor what was spent on him in this state; and Allah knows best (Majmu' al-Fatawa, 34/104).