Source: Fatāwā Amunpūrī by Shaykh Ghulām Muṣṭafā Ẓahīr Amunpūrī
If the father is capable of doing so, then he has the right. Otherwise, whichever family member possesses this capability will be entitled to the child’s custody.
❀ ʿAllāmah Ibn al-Qayyim رحمه الله states:
In the ḥadīth of Abū Hurayrah رضي الله عنه, it is established that the Prophet ﷺ gave the child the choice. The practice of the Rightly Guided Caliphs and Sayyidunā Abū Hurayrah رضي الله عنه also reflects this, and none of the Companions opposed or rejected it.
The scholars say that this is the highest level of justice. A woman is given precedence during the child’s early years because, at that age, the child needs to be carried, breastfed, nurtured, and cared for—matters that only women can adequately perform. Otherwise, since the mother is only one of the parents, how could she be preferred over the father?
When the child reaches an age at which he can take care of himself, does not need assistance in sitting or standing, and is no longer dependent on a woman’s care, then the rights of the mother and father become equal, and the reason for giving preference to the mother ceases to exist. Thus, the parents’ rights become equal, and preference will be given to one over the other based on an indicator (qarīnah).
This indicator may be external, such as drawing lots, or internal, such as granting the child a choice—both methods are established from the Sunnah. In the narration of Sayyidunā Abū Hurayrah رضي الله عنه, both methods are combined. We consider both to be valid and do not reject one in favor of the other.
We give precedence to whom the Prophet ﷺ gave precedence and delay whom he ﷺ delayed. Therefore, the child’s choice will be given priority, because drawing lots is only considered when all rights are equal and no other solution exists. The procedure will be that the child is given the choice between the parents. If the child chooses one, that parent will be preferred. If the child chooses neither or chooses both, then drawing lots will be done.
In matters where there is no explicit Sunnah, drawing lots is the best, most just, and mutually agreeable way to resolve disputes.
According to Imām Aḥmad ibn Ḥanbal and Imām al-Shāfiʿī رحمهما الله, there is another view: if the child does not choose either parent, the child will remain with the mother without drawing lots, because custody is fundamentally the mother’s right, and it can only transfer through the child’s choice. If the child makes no choice, then in all cases the child remains with the mother.
Question
A husband and wife have divorced, and they have a young daughter. Who will have the right of custody when the girl’s mother is immoral (fāḥishah)?Answer
Between the mother and father, the right of custody belongs to the mother only if she possesses the ability to provide good upbringing to the child. In the mentioned situation, since the mother is immoral, granting her the right of custody would itself be harmful for the girl. Therefore, it is necessary that the right of custody be given to the one who has the capability to raise and educate the child upon Islamic principles.If the father is capable of doing so, then he has the right. Otherwise, whichever family member possesses this capability will be entitled to the child’s custody.
❀ ʿAllāmah Ibn al-Qayyim رحمه الله states:
In the ḥadīth of Abū Hurayrah رضي الله عنه, it is established that the Prophet ﷺ gave the child the choice. The practice of the Rightly Guided Caliphs and Sayyidunā Abū Hurayrah رضي الله عنه also reflects this, and none of the Companions opposed or rejected it.
The scholars say that this is the highest level of justice. A woman is given precedence during the child’s early years because, at that age, the child needs to be carried, breastfed, nurtured, and cared for—matters that only women can adequately perform. Otherwise, since the mother is only one of the parents, how could she be preferred over the father?
When the child reaches an age at which he can take care of himself, does not need assistance in sitting or standing, and is no longer dependent on a woman’s care, then the rights of the mother and father become equal, and the reason for giving preference to the mother ceases to exist. Thus, the parents’ rights become equal, and preference will be given to one over the other based on an indicator (qarīnah).
This indicator may be external, such as drawing lots, or internal, such as granting the child a choice—both methods are established from the Sunnah. In the narration of Sayyidunā Abū Hurayrah رضي الله عنه, both methods are combined. We consider both to be valid and do not reject one in favor of the other.
We give precedence to whom the Prophet ﷺ gave precedence and delay whom he ﷺ delayed. Therefore, the child’s choice will be given priority, because drawing lots is only considered when all rights are equal and no other solution exists. The procedure will be that the child is given the choice between the parents. If the child chooses one, that parent will be preferred. If the child chooses neither or chooses both, then drawing lots will be done.
In matters where there is no explicit Sunnah, drawing lots is the best, most just, and mutually agreeable way to resolve disputes.
According to Imām Aḥmad ibn Ḥanbal and Imām al-Shāfiʿī رحمهما الله, there is another view: if the child does not choose either parent, the child will remain with the mother without drawing lots, because custody is fundamentally the mother’s right, and it can only transfer through the child’s choice. If the child makes no choice, then in all cases the child remains with the mother.
Reference: Zād al-Maʿād fī Hady Khayr al-ʿIbād: 5/468
