Waleed Basyouni – If A Person Files For Divorce First Does That Parent Get Custody Automatically- Ask The

Waleed Basyouni
AI: Summary ©
The host of a show called " bye bye," discusses the custody of children in cases of death and divorce. They explain that custody is not a factor in the ruling of custody, and that there is a debate about the best interest for a child. The host also discusses the importance of providing support to children in case of death and divorce.
AI: Transcript ©
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As-salamu alaykum wa rahmatullah, welcome to a

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new episode of Ask the Imam, a program

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that we host at the Clear Lake Islamic

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Center.

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You can see the answers to your questions

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on our YouTube channel.

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If you want to ask a question, send

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us an email at asktheimam, one word, at

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themasjid.org.

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That is asktheimam at themasjid.org.

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All right, as-salamu alaykum Shaykh Waleed.

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Wa alaykum as-salamu alaykum wa rahmatullah.

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We have an easy question here.

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The sister is asking about the custody, the

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ruling on child custody in Islam.

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And is there a difference if the man

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is requesting the divorce or the woman initiating

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the divorce?

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Oh, that's easy because we can say, you

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have to go ask a judge, you know,

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Nazir Fatwa to ask the Shaykh of Allah.

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No, with all seriousness, what's the ruling when

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it comes to custody, if the man initiated

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divorce or woman initiated divorce?

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That will not be a factor taken into

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consideration.

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So it will not affect the ruling in

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regard to custody.

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Custody is an issue that's related to qadaa,

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which means each case has to be looked

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upon separately by itself.

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And that's something interesting because the cardinal rule

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when it comes to custody is what's the

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best interest for the child?

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That's what we look at first thing.

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What is the best interest for a child?

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We make sure that we provide the child

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with the best interest, boy, girls, okay?

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So if this been said, Al-Ulama Rahim

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Allah said that the custody of a child

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in a case of death, okay, if there

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is a person who was assigned to be

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the custodian, like in the wasiyyah, in the

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will.

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The guardian.

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The guardian for the child, that person will

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be the custodian.

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That's number one.

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So in case of divorce or case of

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death of the husband, in this case, the

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mother is the custodian of the child, okay?

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And if for whatever reason she cannot be,

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the majority of the fuqaha, Rahim Allah, except

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the former that I will say, it goes

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to her mother.

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Oh, wow.

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Okay.

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Her mother.

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Her mother.

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Not his mother.

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Not his mother.

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Her mother.

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Then after that, there is a debate among

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the fuqaha.

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Some said it continue in the mother's side,

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like her khala.

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And some said no, to go to the

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husband's mother after that.

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Then after that, go some said to the

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husband.

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Some said no, to his mother, or obviously,

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mother, it means a mother or a grandmother

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growing up, or her khala.

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So there will be a debate after this

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level.

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But the fuqaha, Rahim Allah, agreed that it

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goes to the mother, her mother, then the

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majority said to his mother after that.

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To what age?

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Also, you will find a debate.

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But there is an agreement, this will be

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the case until the age of seven, okay?

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Some of the fuqaha said when it comes

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to female, no, until the age, some of

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them nine.

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Some of them said, like Malikiya said, until

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she get married, she stay with her mom.

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Not puberty.

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No, not puberty.

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Some of the malikiya said, some of the

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fuqaha, she get married.

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Because she always need her mom to teach

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her, to prepare her, blah, blah.

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And some of like the hanabila said, no,

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she go to the father after she reach

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the age of tamiz, or like nine years

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old, or seven years old, she goes to

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the father.

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So there's a difference between tamiz and puberty,

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which is like maturity and puberty.

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Yeah.

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So, you will find some of the shafi

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'iya said, no, when she reach the age

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of puberty, or she reach the age of

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seven, or some said nine, she will be

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asked, which one you want to go with?

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The father or the mother?

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Okay.

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The hanabila said, no, she go with the

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father.

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So, you'll find a debate here.

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But the bottom line of this debate is

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actually in the end of the day, the

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judge who going to look, or the person,

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the arbitrator, or the person who going to

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look into this case will see what's the

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best interest for the shafi'iya.

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Like Umar radiyallahu anhu, asked the boy, who

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you want to go with?

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He said, I want to go with my

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father, not with my mother.

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Then the mother said, ask him why?

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He said, because my father let me play,

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and my mother forced me to go to

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the kutab, to learn.

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He said, you go with your mother.

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So, it is not about choice, because that's

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the best interest for the child.

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Also, there is an issue, like a lot

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of people ask about it, what if she

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get married?

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Because in Nabi salallahu alayhi wa sallam, in

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the hadith of Abu Shuaib, that he said,

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the child is yours until you get married.

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Is that a condition?

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The majority of fuqaha said that the mother

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keep the custody of the child until she

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get married.

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If she get married, the custody go to

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her mother, or the second person in line.

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Ibn al-Qayyim, Rahimahullah, pushed back into this,

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and he wrote a beautiful paper or research

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or defended his position, saying that this is

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not necessarily true.

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He actually believes that even if she get

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married, she can keep the custody, if this

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is to be the best interest for the

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child, and the stepfather is trusted.

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He argued a lot about this hadith, the

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authenticity of it, what it really means, is

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it in relation to this particular accident, or

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can you take a general evidence, that's not

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the place to go to the details of

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his opinion, but he mentioned that in Zad

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al-Ma'ad and others, if somebody is

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interested to read more about it.

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And I lean toward that position, that really

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we have to look at the best interest

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of the child.

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And with this been said, I hope that

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any parents who have a dispute over custody,

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they always keep in mind what's the best

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interest for the child, and also make sure

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that you provide the support that your child

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needs, which is the child support, that you

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must be providing.

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Child support is not only finance, it's also

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being there, talking to them, you know, being

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their life, even if you're not part of

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the marriage anymore.

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Alright, Jazakallah Khair, that was not an easy

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question after all, Barakallah for you.

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Thank you very much for your questions, we'll

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see you next episode.

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