Source: Aḥkām wa Masāʾil Kitāb wa Sunnat kī Roshnī meṅ by Shaykh Mubashar Ahmad Rabbānī
My daughter was divorced by her husband about a year ago. At the time of divorce, she had a one-year-old daughter. Now, one year has passed — the remaining period of breastfeeding has been completed, and the child is now around two years old. Who will the child stay with now — the mother or the father? And if she stays with the mother, who is responsible for her expenses? Kindly explain in the light of the Qur’an and Sunnah.
When a man divorces his wife and young children are involved, then the children shall remain with the mother until they reach an age of discernment (i.e., when they can independently decide). After that, both parents will be present and the child will be given the option to choose either parent.
Narrated by Abū Maymūnah:
"I was sitting with Abū Hurayrah رضي الله عنه when a Persian woman approached with her son. Both parents were in dispute over custody — the woman had already been divorced by her husband.
The woman spoke to Abū Hurayrah in Persian, saying:
‘O Abū Hurayrah, my ex-husband wants to take my son away from me.’
Abū Hurayrah responded in Persian:
‘You both should cast lots over him.’
When her ex-husband came, he objected, saying:
‘Who dares dispute my right over my child?’
Abū Hurayrah رضي الله عنه said:
‘O Allah, I am giving this ruling because I was present with the Messenger of Allah ﷺ when a woman came to him and said: “O Messenger of Allah, my husband wants to take away my son, while he gives me water from Abu ʿUtbah’s well and he has benefitted me greatly.”’
The Prophet ﷺ then said:
‘This is your father, and this is your mother — take hold of whichever hand you wish.’
The child grabbed his mother’s hand, so she took him away."
Sunan Abī Dāwūd, Kitāb al-Ṭalāq, Ḥadīth 2277 / 2351
Musnad Aḥmad: 2/447, Ḥadīth 9770
Jāmiʿ al-Tirmidhī, Kitāb al-Aḥkām, Ḥadīth 1357
Imām al-Tirmidhī رحمه الله commented:
"According to some of the scholars among the companions of the Prophet ﷺ and others, when there is a dispute between the parents, the child is given the choice."
This is also the opinion of:
They said:
"Until the child is small, the mother is more entitled to custody. Once the child reaches about seven years of age, they are given the choice between the parents."
“If a man separates from his wife and they have young children under seven, then if the mother is willing, she is more entitled to their upbringing, and the father is responsible for the expenses.
However, if the mother is unwilling, then the father must hire another woman (for example, a wet nurse or caretaker) and the cost is on the father to ensure proper care for the child.”
As long as the child is young and has not reached the age of discernment, the custody remains with the mother — provided she is suitable and willing — because:
Among the Companions of the Prophet ﷺ, there was no disagreement on this issue.
See: Zād al-Maʿād by Ibn al-Qayyim (5/436)
For more details, see the author’s book:
"Aap ke Masāʾil aur Un kā Ḥal" – Volume 3
وَاللهُ أَعْلَمُ
✦ Question:
My daughter was divorced by her husband about a year ago. At the time of divorce, she had a one-year-old daughter. Now, one year has passed — the remaining period of breastfeeding has been completed, and the child is now around two years old. Who will the child stay with now — the mother or the father? And if she stays with the mother, who is responsible for her expenses? Kindly explain in the light of the Qur’an and Sunnah.
✦ Answer:
When a man divorces his wife and young children are involved, then the children shall remain with the mother until they reach an age of discernment (i.e., when they can independently decide). After that, both parents will be present and the child will be given the option to choose either parent.
- If the child chooses the father, they may stay with him — but the mother’s visitation rights must be honored.
- If the child chooses the mother, they may stay with her — but the father must not be prevented from visiting.
❖ Evidences from the Sunnah:
Narrated by Abū Maymūnah:
"I was sitting with Abū Hurayrah رضي الله عنه when a Persian woman approached with her son. Both parents were in dispute over custody — the woman had already been divorced by her husband.
The woman spoke to Abū Hurayrah in Persian, saying:
‘O Abū Hurayrah, my ex-husband wants to take my son away from me.’
Abū Hurayrah responded in Persian:
‘You both should cast lots over him.’
When her ex-husband came, he objected, saying:
‘Who dares dispute my right over my child?’
Abū Hurayrah رضي الله عنه said:
‘O Allah, I am giving this ruling because I was present with the Messenger of Allah ﷺ when a woman came to him and said: “O Messenger of Allah, my husband wants to take away my son, while he gives me water from Abu ʿUtbah’s well and he has benefitted me greatly.”’
The Prophet ﷺ then said:
‘This is your father, and this is your mother — take hold of whichever hand you wish.’
The child grabbed his mother’s hand, so she took him away."
Sunan Abī Dāwūd, Kitāb al-Ṭalāq, Ḥadīth 2277 / 2351 Musnad Aḥmad: 2/447, Ḥadīth 9770 Jāmiʿ al-Tirmidhī, Kitāb al-Aḥkām, Ḥadīth 1357❖ Scholarly Commentary:
Imām al-Tirmidhī رحمه الله commented:
"According to some of the scholars among the companions of the Prophet ﷺ and others, when there is a dispute between the parents, the child is given the choice."
This is also the opinion of:
- Imām Aḥmad ibn Ḥanbal
- Imām Isḥāq ibn Rāhwayh
They said:
"Until the child is small, the mother is more entitled to custody. Once the child reaches about seven years of age, they are given the choice between the parents."
❖ Imām al-Baghawī رحمه الله said in
“If a man separates from his wife and they have young children under seven, then if the mother is willing, she is more entitled to their upbringing, and the father is responsible for the expenses.
However, if the mother is unwilling, then the father must hire another woman (for example, a wet nurse or caretaker) and the cost is on the father to ensure proper care for the child.”
❖ Further Clarification:
As long as the child is young and has not reached the age of discernment, the custody remains with the mother — provided she is suitable and willing — because:
- The mother is more nurturing and compassionate.
- She is more gentle and attentive to the child’s emotional and physical needs.
Among the Companions of the Prophet ﷺ, there was no disagreement on this issue.
See: Zād al-Maʿād by Ibn al-Qayyim (5/436)
Final Ruling:
- The child remains with the mother until the age of discernment.
- The father bears the financial responsibility of the child’s upbringing.
- Once the child reaches an appropriate age (around 7), he or she will be given the choice to live with either parent, and both parents' visitation rights must be upheld.
For more details, see the author’s book:
"Aap ke Masāʾil aur Un kā Ḥal" – Volume 3
وَاللهُ أَعْلَمُ
