❖ Extracted from Fatāwā Amunpuri by Shaykh Ghulām Mustafa Zaheer Amunpuri ❖
✿ Until When Does a Divorced Mother Retain Custody Rights in Islam? ✿
Islamic Ruling on Post-Divorce Custody (Ḥaḍānah)
If divorce takes place between husband and wife, then the right to the custody and upbringing of young children primarily belongs to the mother, provided that her care is in the best interests of the child.However, if the mother’s custody proves harmful or inadequate, then the father becomes more deserving of the child’s care.
If the mother remarries, her right to custody ends according to Islamic jurisprudence.
Scholarly Consensus on the Issue
❀ Imām al-Khaṭṭābī رحمه الله (d. 388H) said:“There is no difference of opinion among scholars that a mother has more right over a small child than the father—
as long as she does not remarry. Once she remarries, she loses her right to custody.
If the mother is not present, then the grandmother (nānī), and then the maternal ancestors have the right.”**
Maʿālim al-Sunan 3/282
This ruling is based on scholarly consensus.❀ Imām Abū Bakr Ibn al-ʿArabī رحمه الله (d. 543H) said:
“The scholars are unanimously agreed upon this ruling.”
Al-Masālik Sharḥ Muwaṭṭaʾ Mālik 6/489 Al-Qabas fī Sharḥ Muwaṭṭaʾ Mālik ibn Anas, p. 954◈ Summary of Key Points:
① A divorced mother has the primary right to custody of her young children, unless proven unfit.② If she remarries, her custody right automatically ends.
③ In such a case, custody is transferred to the next eligible female relative—usually the maternal grandmother.
④ This is a matter of scholarly consensus (ijmāʿ) and is rooted in concern for the child’s welfare and religious upbringing.
