Source: Fatāwā Amunpūrī by Shaykh Ghulām Muṣṭafā Ẓahīr Amunpūrī
“Our respected teacher, ʿAllāmah Ibn Taymiyyah رحمه الله, mentioned another principle and said: In matters of custody (ḥaḍānah), it is most appropriate to say that it is a form of guardianship in which affection, upbringing, kindness, and care are taken into consideration. The one most entitled to it is the person who is closest to the child and most endowed with these qualities. Such individuals are from the child’s close relatives.
Among them, the one who is closer in relationship and more characterized by these qualities is given precedence. If two or more individuals possessing these qualities are equal in rank, then a female is preferred over a male. Thus, the mother is preferred over the father, the grandmother over the grandfather, the maternal aunt (khālah) over the maternal uncle (khāl), the paternal aunt (phuppī) over the paternal uncle (chāchā), and the sister over the brother.
If two equal males or two equal females are present, then precedence will be determined by drawing lots.
If their ranks with respect to the child differ, and the relationship is from the same side, then the sister is preferred over the daughter, the child’s maternal aunt over the parents’ maternal aunt, the parents’ maternal aunt over the paternal grandfather’s maternal aunt, and the maternal grandmother over the uterine brother, because in matters of custody, the line of the father and paternal uncle is stronger than the line of brothers.
It has also been said that the uterine brother should be given precedence, because in inheritance he is stronger than the maternal grandfather. Both views exist within the school of Imām Aḥmad ibn Ḥanbal رحمه الله.”
Question
What is the order of priority in the right of upbringing (custody)?Answer
ʿAllāmah Ibn al-Qayyim رحمه الله (d. 751 AH) states:“Our respected teacher, ʿAllāmah Ibn Taymiyyah رحمه الله, mentioned another principle and said: In matters of custody (ḥaḍānah), it is most appropriate to say that it is a form of guardianship in which affection, upbringing, kindness, and care are taken into consideration. The one most entitled to it is the person who is closest to the child and most endowed with these qualities. Such individuals are from the child’s close relatives.
Among them, the one who is closer in relationship and more characterized by these qualities is given precedence. If two or more individuals possessing these qualities are equal in rank, then a female is preferred over a male. Thus, the mother is preferred over the father, the grandmother over the grandfather, the maternal aunt (khālah) over the maternal uncle (khāl), the paternal aunt (phuppī) over the paternal uncle (chāchā), and the sister over the brother.
If two equal males or two equal females are present, then precedence will be determined by drawing lots.
If their ranks with respect to the child differ, and the relationship is from the same side, then the sister is preferred over the daughter, the child’s maternal aunt over the parents’ maternal aunt, the parents’ maternal aunt over the paternal grandfather’s maternal aunt, and the maternal grandmother over the uterine brother, because in matters of custody, the line of the father and paternal uncle is stronger than the line of brothers.
It has also been said that the uterine brother should be given precedence, because in inheritance he is stronger than the maternal grandfather. Both views exist within the school of Imām Aḥmad ibn Ḥanbal رحمه الله.”
Reference: Zād al-Maʿād fī Hady Khayr al-ʿIbād: 5/50
