Aslam

Praise be to Allah.Women

have more right to custody of children than men; in principle custody

belongs to them, because they are more compassionate and more kind,

and they know better how to raise small children, and they are more

patient in dealing with the difficulties involved. The mother has more

right to custody of her child, whether it is a boy or a girl, so long

as she does not re-marry and so long as she meets the conditions of

custody. This is according to scholarly consensus.

The

conditions of custody are: being accountable (i.e., an adult of sound

mind etc.), being free (as opposed to being a slave), being of good

character, being a Muslim if the child concerned is a Muslim, and being

able to fulfil all obligations towards the child. The mother should

not be married to a person who is a stranger (i.e., not related) to

the child. If one of these conditions is not fulfilled and there is

an impediment such as insanity or having remarried, etc., the woman

forfeits the right to custody, but if that impediment is removed, then

the right to custody is restored. But it is best to pay attention to

the interests of the child, because his rights come first.

The

period of custody lasts until the age of discretion and independence,

i.e., until the child is able to discern what is what and is independent

in the sense that he can eat by himself, drink by himself, and clean

himself after using the toilet, etc.

When

the child reaches this age, the period of custody ends, whether the

child is a boy or a girl. That is usually at the age of seven or eight.

With

regard to the effect of travelling on transferring custody, if the parents

have separated and are disputing custody, any of the following scenarios

may apply to their travelling:

1

– If one of the parents wants to travel without moving, i.e., he or

she intends to come back, then the parent who is staying put has more

right to the child.

2

– If one of them wants to travel for the purpose of settling there,

and the new city or the route is dangerous, then the parent who is staying

put has more right to the child.

3

– If one of them wants to move and settle within the same city, and

the city and the route is safe,the father has right to the child than

the mother, regardless of whether the one who is moving is the father

or the mother.

4

– If both parents want to travel to the same place, then the mother

should retain custody.

5

– If the place is nearby so that the father and child may see one another

every day, then the mother should retain custody.

When

the child reaches the age of independence, the period of custody comes

to an end, and the period of kafaalah or sponsorship of the young begins,

which lasts until the child reaches adolescence or in the case of a

girls, starts her periods. Then the period of sponsorship ends and the

child is free to make his own choices.

Women’s rights to sponsor

children. It appears from the comments of the fuqaha’ that women have

the right to sponsor children in general, and that mothers and grandmothers

in particular have this right.  But the scholars differed as to

who has more right to sponsorship if the parents are in dispute and

are both qualified to sponsor the child. The Maalikis and Zaahiris think

that the mother has more right to sponsorship of the child, whether

it is a boy or a girl. The Hanbalis think that boys should be given

a choice, but the father has more right in the case of a girl. The Hanafis

think that the father has more right in the case of a boy and the mother

has more right in the case of a girl. Perhaps the correct view is that

the child should be given a choice if the parents are disputing and

they both fulfil the conditions for sponsorship.