Nasai

If one of the spouses (husband or wife) becomes Muslim and the child has reached the age of discernment, then in whose custody should the child be placed? There is a difference of opinion on this matter. According to the scholars of opinion (Ashab al-Ra’y), the right of custody (hadanah) is established for the disbeliever. However, the correct view is that this is guardianship (wilayah). And when the guardianship of a disbeliever is not established in matters of marriage and wealth, then it is even less likely to be established in custody, because the harm in this case is far greater than in the other two. This is because when a disbeliever raises the child, it is obvious that he will desire for the child to be upon his religion; thus, he will raise and educate the child according to his own religion and teach him his own beliefs. As a result, the child will become a disbeliever, because a child becomes whatever he is taught. The Prophetic statement is: “Every child is born upon the natural disposition (fitrah) of Islam; later, his parents make him a Jew, a Christian, or a Magian.” (Sahih al-Bukhari, al-Jana’iz, Hadith: 1358; and Sahih Muslim, al-Qadar, Hadith: 2658) Later, for the child to return to Islam will be very difficult, because the knowledge acquired in childhood is like an inscription on stone. And this is a very great harm. The statement of Allah, the Exalted, is: ﴿وَلَنْ يَجْعَلَ اللَّهُ لِلْكَافِرِينَ عَلَى الْمُؤْمِنِينَ سَبِيلًا﴾ () Therefore, the child will be given into the custody of the Muslim. From this hadith, it is also understood that for the child to go to the disbeliever is against the will of Allah, because Allah intends guidance for His servants. As for the question as to why the Prophet (sallallahu alayhi wa sallam) gave the choice in the mentioned case when the mother was a disbeliever, the answer given is that the Prophet (sallallahu alayhi wa sallam) was certain that his supplication would be accepted and the child would definitely go to the father; thus, he did so to console the mother. Even if this explanation is not accepted, and the granting of choice in the mentioned situation is considered correct, as the Messenger of Allah (sallallahu alayhi wa sallam) did, then even in the case of the child inclining towards the disbeliever, the child will be given into his custody on the condition that he raises the child according to Islam. Imposing this condition is not contrary to the hadith, because the hadith does not negate the imposition of a condition (since in the hadith, the situation of the child actually going to the disbeliever does not arise). Rather, this condition is in complete accordance with religious interests, and thus all evidences are reconciled, and there is no need (we seek refuge with Allah) to reject any verse or hadith. And Allah knows best.

Benefits and Issues:
If separation occurs between the parents and the boy or girl is of discerning age, then the child will be given the choice to select either one of them.
Regarding the period before this capability, the jurists have different opinions.
For example, the boy should remain in the mother’s custody until the age of seven, and the girl until the age of nine; after that, they should be given to the father, and so on.
(Zad al-Ma'ad, Volume Four, His ﷺ Ruling Regarding Custody.
Nayl al-Awtar, Book of Maintenance)

Takhrij:
«أخرجه أبوداود، الطلاق، باب إذا أسلم أحمدالأبوين لمن يكون الولد، حديث:2244، والنسائي، الطلاق، حديث:3525، والحاكم:2 /206.»©Explanation:
➊ The context of the hadith indicates that this child was young and could not yet distinguish (between things). The word صَبِيٌّ (sabi, child) itself implies this.
➋ In the narration of Abu Dawud, it is mentioned that this dispute was about a girl who had already weaned or was about to wean. (Sunan Abi Dawud, Book of Divorce, Hadith: 2244)
➌ Once it is established that the child was young and did not possess the ability or capacity to distinguish, then the dispute and quarrel was regarding the upbringing (tarbiyyah) of the child, not about guardianship (wilayah) or custodianship.
➍ This hadith is evidence that the right of upbringing is established for a non-Muslim mother; however, it does not provide evidence that after the child attains the ability to distinguish, he or she will be given the choice to select between the parents if one of them is Muslim and the other is non-Muslim.

© Narrator of the Hadith:
«حضرت رافع بن سنان رضی اللہ عنہ » Abu’l-Hakam Ansari Awsi Madani radi Allahu anhu.
He is a well-known Companion (sahabi).
Abu’l-Qasim ibn Sallam said in al-Ansab regarding him: He is from the descendants of ‘Atbūn, that is, ‘Amir ibn Thalabah.