Who Has the Right to Custody?

Written by: Shaykh Hafiz Abdul Sattar Al-Hammad (May Allah preserve him)

"The maternal aunt is in the position of the mother."

"The maternal aunt is like the mother."
[Sahih al-Bukhari, Book of Reconciliation: Hadith 2699]

Benefits:​

The context of this Hadith is as follows: According to the terms of the Treaty of Hudaybiyyah, when the Prophet Muhammad (صلى الله عليه وسلم) came to Makkah for Umrah the following year, Sayyidina Ali (رضي الله عنہ) handed over the daughter of Sayyidina Hamza (رضي الله عنہ) to Sayyida Fatima (رضي الله عنها). There was a dispute among Sayyidina Ali, Sayyidina Zaid, and Sayyidina Jafar (رضي الله عنهم) regarding this girl. The Prophet (صلى الله عليه وسلم) then gave her to Sayyidina Jafar (رضي الله عنہ) and said that her maternal aunt was in the house, and the maternal aunt is like a mother.
[Sahih al-Bukhari, Book of Reconciliation: Hadith 2699]

Based on this Hadith, the Prophet Muhammad (صلى الله عليه وسلم) delegated the right of nurturing and upbringing of the child to the maternal aunt. In this matter, the well-being of the newborn must be considered, as children are often less rational and short-sighted. If the mother is better suited to raise the child than the father, then the mother should be preferred over the father.

For instance, a mother approached the Prophet Muhammad (صلى الله عليه وسلم) regarding the custody of her child. She said: "O Messenger of Allah, my husband has divorced me and wishes to take the child from me, although my womb was the vessel for the child, my breast is its container, and my lap is its resting place." The Prophet (صلى الله عليه وسلم) replied:

"As long as you do not remarry, you have the right to the child."
[Sunan Abu Dawood, Book of Divorce: Hadith 2276]

It is important to note that this right of the mother is valid only until she remarries. Once she enters into a new marriage, her responsibilities may hinder her ability to care for and nurture the child. This clarification indicates that if the mother's environment is not conducive to proper upbringing and the child is at risk of negative influences, then she may not be granted custody.
 
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