Guardians and paternal uncles: who has the greater right to the child?

Muhammad bin Ka'b (may Allah have mercy on him) said: A woman from the desert folk was married to her paternal cousin. (She had a daughter from this husband.) Her husband died, so she married a man from the Ansar. After this marriage the girl's paternal cousins came and said: "We will take our daughter." The woman said: "I adjure you by Allah not to come between me and my daughter. I carried her in my womb and I nursed her. No one has a greater right to this girl than I do." The people refused what she said, so she said: "Come to the Messenger of Allah (peace and blessings be upon him) and have it decided." Then the woman said to her daughter: "When the Messenger of Allah (peace and blessings be upon him) gives you the choice, say: 'I have chosen Allah, faith, and the abode of the Muhajirun and the Ansar.'" When they came before the Messenger of Allah (peace and blessings be upon him), he said: "By the One! As long as I have life in me, you cannot take her away." (After the passing of the Prophet (peace and blessings be upon him)) those people came to Sayyiduna Abu Bakr (may Allah be pleased with him), and he decided the girl's case in favour of her family. At this Sayyiduna Bilal (may Allah be pleased with him) said: "O Caliph of the Messenger of Allah! These people came to the Messenger of Allah (peace and blessings be upon him) in my presence, and this woman too was present before the Messenger of Allah (peace and blessings be upon him). The Messenger of Allah (peace and blessings be upon him) decided this girl's case in the woman's favour." At this Sayyiduna Abu Bakr (may Allah be pleased with him) said: "By the One in Whose hand is my soul! As long as I am alive, you cannot take this girl away." Then he gave the girl to her mother.

A case was brought to al-Sha'bi (may Allah have mercy on him) concerning a woman who wanted to take her daughter out of Kufah. He said: "If the mother wants to take the girl out of the city, then the girl's agnatic relatives ('asabah) have a greater right to her."

Umarah bin Rabi'ah al-Jarmi (may Allah have mercy on him) said: My father was martyred in a sea campaign. My paternal uncle came to take me. My mother brought the case before Sayyiduna Ali (may Allah be pleased with him). My younger brother was also with me. Sayyiduna Ali (may Allah be pleased with him) gave me the choice three times, and I chose my mother. My uncle refused to accept this decision, so Sayyiduna Ali (may Allah be pleased with him) struck him with his fist, hit him with his whip, and said: "This one (the younger brother) too, when he reaches the age, will be given the choice."

Mughirah (may Allah have mercy on him) said: Shurayh (may Allah have mercy on him) gave the choice to an orphan boy and an orphan girl. The girl chose her mawali (patrons), and the boy chose his paternal aunt, and Shurayh upheld it.

Al-Sha'bi (may Allah have mercy on him) said concerning the nursing of a child: "If his mother is in the same city, she has the greater right; and if she wants to leave the city, then the guardians have the greater right to this arrangement."