Source: Fatāwā Amunpuri by Shaykh Ghulam Mustafa Zaheer Amunpuri
Who is entitled to the custody (upbringing and care) of the child after divorce?
Islam has not exclusively granted custody rights to either the mother or the father. Instead, the criterion is the ability of the parent — whether mother or father — to provide proper upbringing, fulfilling the child's religious, spiritual, physical, and intellectual needs.
If the mother possesses these qualities, then custody will be granted to her, and if the father is more capable, then custody will be granted to him.
❖ Imām Ibn al-Qayyim رحمه الله said:
"Our precedence by choice or by drawing lots is based on what is in the best interest of the child. If the mother is more caring and protective than the father, she will be given preference, and in such a case, no regard will be given to drawing lots or the child’s choice — because the child is immature and tends to prefer play and entertainment."
If the child chooses the one who helps him indulge in frivolities, such a choice will be invalid. Custody will be given to the one who, from a Sharʿī perspective, ensures the child’s welfare and protection, for this is what the Shariʿah mandates.
The Prophet ﷺ said:
أمروا أولادكم بالصلاة إذا بلغوا سبعا واضربوهم عليها إذا بلغوا عشرا وفرقوا بينهم في المضاجع
“Command your children to pray at the age of seven, and beat them (lightly) if they do not pray at ten, and separate them in beds.”
(Sunan Abī Dāwūd: 495, chain is authentic)
يَا أَيُّهَا الَّذِينَ آمَنُوا قُوا أَنْفُسَكُمْ وَأَهْلِيكُمْ نَارًا
“O you who believe! Save yourselves and your families from a Fire...”
(Surah al-Taḥrīm: 6)
❖ Imām Ḥasan al-Baṣrī رحمه الله said:
“Take care of your children’s education and upbringing.”
If the mother enrolls the child in a school, teaches him the Qur’an, and he still prefers playing — while the father is also capable of fulfilling these duties — the father has more right without the need for drawing lots.
If the opposite is true, the same ruling applies.
If one parent is negligent in enforcing Allah’s and the Prophet’s commands while the other upholds them, custody will be granted to the one who enforces those commands.
Imām Ibn al-Qayyim رحمه الله reported from his teacher, Imām Ibn Taymiyyah رحمه الله:
“A couple disputed over the custody of a child before a judge. When the child was asked, he chose the father. The mother requested the judge to ask the reason. The child replied: ‘My mother sends me to the scribe daily and the teacher beats me, while my father lets me play.’
The judge ruled in favor of the mother and said: ‘You are more deserving.’”
Our respected teacher used to say:
“If either parent neglects the child’s religious duties and education, they are sinful and lose their custodial rights. Custody is not for the one who neglects the child’s religious obligations.”
Custody may either be taken away and handed to someone suitable, or shared with someone who ensures proper Islamic upbringing — since the goal is to nurture obedience to Allah and His Messenger as far as possible.”
Our Shaykh further explained:
“Custody is not a hereditary or lineage-based right obtained via kinship, marriage, or guardianship — whether the guardian is pious or immoral. Rather, custody is a Sharʿī responsibility granted to one who knows and upholds Islamic obligations.”
“For example, if a man marries another woman and she fails to care for his daughter or recognize her interests, whereas the biological mother is better suited for her upbringing and welfare — then the mother has the right to custody.”
He also said:
“It must be understood that the Sharīʿah has not given unconditional preference to either parent, nor absolute choice to the child.”
The scholars agree that:
“There is no unconditional precedence in custody for any individual. A negligent or immoral parent cannot be preferred over a righteous and just one.”
Zād al-Maʿād fī Hady Khayr al-ʿIbād: 4/475
He said:
“Custody is a type of guardianship based on affection, nurturing, kindness, and care. The one most entitled to it is the one closest to the child and most endowed with these traits. Generally, this includes close relatives — and among them, the one more qualified is given preference.”
If two or more relatives are equally qualified, females are preferred over males:
If there are two males or two females equally qualified, a decision will be made by drawing lots.
If one has a closer degree of relationship, then preference will go as follows:
There is also a view that the maternal half-brother is given preference as he has a stronger share in inheritance than the grandfather.
Imām Aḥmad ibn Ḥanbal’s رحمه الله school accommodates both views.
Zād al-Maʿād: 5/50
◈ Custody depends on who can best fulfill the religious, intellectual, and emotional needs of the child.
◈ It is not an inherited or fixed right — but is based on capability and piety.
◈ Neither parent is absolutely preferred; each case is judged by Sharʿī criteria of welfare.
◈ If both are competent, the mother is generally given preference, especially in early years.
◈ If neither is suitable, custody may be taken away or shared with someone responsible for proper upbringing.
❖ Question:
Who is entitled to the custody (upbringing and care) of the child after divorce?
✿ Answer:
Islam has not exclusively granted custody rights to either the mother or the father. Instead, the criterion is the ability of the parent — whether mother or father — to provide proper upbringing, fulfilling the child's religious, spiritual, physical, and intellectual needs.
If the mother possesses these qualities, then custody will be granted to her, and if the father is more capable, then custody will be granted to him.
Statements of Scholars
❖ Imām Ibn al-Qayyim رحمه الله said:
"Our precedence by choice or by drawing lots is based on what is in the best interest of the child. If the mother is more caring and protective than the father, she will be given preference, and in such a case, no regard will be given to drawing lots or the child’s choice — because the child is immature and tends to prefer play and entertainment."
If the child chooses the one who helps him indulge in frivolities, such a choice will be invalid. Custody will be given to the one who, from a Sharʿī perspective, ensures the child’s welfare and protection, for this is what the Shariʿah mandates.
Prophetic Guidance:
The Prophet ﷺ said:
أمروا أولادكم بالصلاة إذا بلغوا سبعا واضربوهم عليها إذا بلغوا عشرا وفرقوا بينهم في المضاجع
“Command your children to pray at the age of seven, and beat them (lightly) if they do not pray at ten, and separate them in beds.”
(Sunan Abī Dāwūd: 495, chain is authentic)
Qur’anic Guidance:
يَا أَيُّهَا الَّذِينَ آمَنُوا قُوا أَنْفُسَكُمْ وَأَهْلِيكُمْ نَارًا
“O you who believe! Save yourselves and your families from a Fire...”
(Surah al-Taḥrīm: 6)
❖ Imām Ḥasan al-Baṣrī رحمه الله said:
“Take care of your children’s education and upbringing.”
✦ Whoever is More Diligent in Islamic Upbringing Deserves Custody
If the mother enrolls the child in a school, teaches him the Qur’an, and he still prefers playing — while the father is also capable of fulfilling these duties — the father has more right without the need for drawing lots.
If the opposite is true, the same ruling applies.
If one parent is negligent in enforcing Allah’s and the Prophet’s commands while the other upholds them, custody will be granted to the one who enforces those commands.
A Case Cited by Imām Ibn Taymiyyah رحمه الله
Imām Ibn al-Qayyim رحمه الله reported from his teacher, Imām Ibn Taymiyyah رحمه الله:
“A couple disputed over the custody of a child before a judge. When the child was asked, he chose the father. The mother requested the judge to ask the reason. The child replied: ‘My mother sends me to the scribe daily and the teacher beats me, while my father lets me play.’
The judge ruled in favor of the mother and said: ‘You are more deserving.’”
❖ Neglecting Obligations Nullifies Custody Rights
Our respected teacher used to say:
“If either parent neglects the child’s religious duties and education, they are sinful and lose their custodial rights. Custody is not for the one who neglects the child’s religious obligations.”
Custody may either be taken away and handed to someone suitable, or shared with someone who ensures proper Islamic upbringing — since the goal is to nurture obedience to Allah and His Messenger as far as possible.”
❖ Custody is Not an Inherited Right
Our Shaykh further explained:
“Custody is not a hereditary or lineage-based right obtained via kinship, marriage, or guardianship — whether the guardian is pious or immoral. Rather, custody is a Sharʿī responsibility granted to one who knows and upholds Islamic obligations.”
“For example, if a man marries another woman and she fails to care for his daughter or recognize her interests, whereas the biological mother is better suited for her upbringing and welfare — then the mother has the right to custody.”
❖ No Absolute Preference to Either Parent
He also said:
“It must be understood that the Sharīʿah has not given unconditional preference to either parent, nor absolute choice to the child.”
The scholars agree that:
“There is no unconditional precedence in custody for any individual. A negligent or immoral parent cannot be preferred over a righteous and just one.”
Zād al-Maʿād fī Hady Khayr al-ʿIbād: 4/475❖ General Guideline by Imām Ibn Taymiyyah رحمه الله
He said:
“Custody is a type of guardianship based on affection, nurturing, kindness, and care. The one most entitled to it is the one closest to the child and most endowed with these traits. Generally, this includes close relatives — and among them, the one more qualified is given preference.”
If two or more relatives are equally qualified, females are preferred over males:
- Mother over father
- Maternal grandmother over paternal grandfather
- Maternal aunt over maternal uncle
- Paternal aunt over paternal uncle
- Sister over brother
If there are two males or two females equally qualified, a decision will be made by drawing lots.
If one has a closer degree of relationship, then preference will go as follows:
- Sister over daughter
- Child’s maternal aunt over parent’s maternal aunt
- Parent’s maternal aunt over grandfather’s maternal aunt
- Maternal grandfather/mother over maternal half-brother
There is also a view that the maternal half-brother is given preference as he has a stronger share in inheritance than the grandfather.
Imām Aḥmad ibn Ḥanbal’s رحمه الله school accommodates both views.
Zād al-Maʿād: 5/50
Conclusion Summary:
◈ Custody depends on who can best fulfill the religious, intellectual, and emotional needs of the child.
◈ It is not an inherited or fixed right — but is based on capability and piety.
◈ Neither parent is absolutely preferred; each case is judged by Sharʿī criteria of welfare.
◈ If both are competent, the mother is generally given preference, especially in early years.
◈ If neither is suitable, custody may be taken away or shared with someone responsible for proper upbringing.
