Until When Does a Divorced Mother Have Custody Rights?

Source: Fatāwā Amunpūrī by Shaykh Ghulām Muṣṭafā Ẓahīr Amunpūrī

Question​

Until when does a divorced mother retain the right of upbringing (custody)?

Answer​

When divorce occurs between husband and wife, the mother has a greater right to the upbringing of minor children, unless the mother’s custody is not better for the child’s welfare—in that case, this right transfers to the father. However, if the divorced mother remarries elsewhere, she no longer retains the right of custody.

❀ ʿAllāmah al-Khaṭṭābī رحمه الله (d. 388 AH) said:

“There is no difference of opinion among the scholars that the mother has more right to the young child than the father so long as she does not remarry. When she remarries, she has no right to custody. If the mother is absent, then the maternal grandmother has the right, followed by the upper maternal grandmothers.”

Reference: Maʿālim al-Sunan: 3/282

This is an issue of consensus (ijmāʿ).

❀ ʿAllāmah Abū Bakr Ibn al-ʿArabī رحمه الله (d. 543 AH) said:

اتفق العلماء على ذلك

“The scholars are unanimously agreed upon this.”

Reference: al-Masālik Sharḥ Muwaṭṭaʾ Mālik: 6/489; al-Qabas fī Sharḥ Muwaṭṭaʾ Mālik ibn Anas: p. 954