Waleed Basyouni – If A Person Files For Divorce First Does That Parent Get Custody Automatically- Ask The
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As-salamu alaykum wa rahmatullah, welcome to a
new episode of Ask the Imam, a program
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All right, as-salamu alaykum Shaykh Waleed.
Wa alaykum as-salamu alaykum wa rahmatullah.
We have an easy question here.
The sister is asking about the custody, the
ruling on child custody in Islam.
And is there a difference if the man
is requesting the divorce or the woman initiating
the divorce?
Oh, that's easy because we can say, you
have to go ask a judge, you know,
Nazir Fatwa to ask the Shaykh of Allah.
No, with all seriousness, what's the ruling when
it comes to custody, if the man initiated
divorce or woman initiated divorce?
That will not be a factor taken into
consideration.
So it will not affect the ruling in
regard to custody.
Custody is an issue that's related to qadaa,
which means each case has to be looked
upon separately by itself.
And that's something interesting because the cardinal rule
when it comes to custody is what's the
best interest for the child?
That's what we look at first thing.
What is the best interest for a child?
We make sure that we provide the child
with the best interest, boy, girls, okay?
So if this been said, Al-Ulama Rahim
Allah said that the custody of a child
in a case of death, okay, if there
is a person who was assigned to be
the custodian, like in the wasiyyah, in the
will.
The guardian.
The guardian for the child, that person will
be the custodian.
That's number one.
So in case of divorce or case of
death of the husband, in this case, the
mother is the custodian of the child, okay?
And if for whatever reason she cannot be,
the majority of the fuqaha, Rahim Allah, except
the former that I will say, it goes
to her mother.
Oh, wow.
Okay.
Her mother.
Her mother.
Not his mother.
Not his mother.
Her mother.
Then after that, there is a debate among
the fuqaha.
Some said it continue in the mother's side,
like her khala.
And some said no, to go to the
husband's mother after that.
Then after that, go some said to the
husband.
Some said no, to his mother, or obviously,
mother, it means a mother or a grandmother
growing up, or her khala.
So there will be a debate after this
level.
But the fuqaha, Rahim Allah, agreed that it
goes to the mother, her mother, then the
majority said to his mother after that.
To what age?
Also, you will find a debate.
But there is an agreement, this will be
the case until the age of seven, okay?
Some of the fuqaha said when it comes
to female, no, until the age, some of
them nine.
Some of them said, like Malikiya said, until
she get married, she stay with her mom.
Not puberty.
No, not puberty.
Some of the malikiya said, some of the
fuqaha, she get married.
Because she always need her mom to teach
her, to prepare her, blah, blah.
And some of like the hanabila said, no,
she go to the father after she reach
the age of tamiz, or like nine years
old, or seven years old, she goes to
the father.
So there's a difference between tamiz and puberty,
which is like maturity and puberty.
Yeah.
So, you will find some of the shafi
'iya said, no, when she reach the age
of puberty, or she reach the age of
seven, or some said nine, she will be
asked, which one you want to go with?
The father or the mother?
Okay.
The hanabila said, no, she go with the
father.
So, you'll find a debate here.
But the bottom line of this debate is
actually in the end of the day, the
judge who going to look, or the person,
the arbitrator, or the person who going to
look into this case will see what's the
best interest for the shafi'iya.
Like Umar radiyallahu anhu, asked the boy, who
you want to go with?
He said, I want to go with my
father, not with my mother.
Then the mother said, ask him why?
He said, because my father let me play,
and my mother forced me to go to
the kutab, to learn.
He said, you go with your mother.
So, it is not about choice, because that's
the best interest for the child.
Also, there is an issue, like a lot
of people ask about it, what if she
get married?
Because in Nabi salallahu alayhi wa sallam, in
the hadith of Abu Shuaib, that he said,
the child is yours until you get married.
Is that a condition?
The majority of fuqaha said that the mother
keep the custody of the child until she
get married.
If she get married, the custody go to
her mother, or the second person in line.
Ibn al-Qayyim, Rahimahullah, pushed back into this,
and he wrote a beautiful paper or research
or defended his position, saying that this is
not necessarily true.
He actually believes that even if she get
married, she can keep the custody, if this
is to be the best interest for the
child, and the stepfather is trusted.
He argued a lot about this hadith, the
authenticity of it, what it really means, is
it in relation to this particular accident, or
can you take a general evidence, that's not
the place to go to the details of
his opinion, but he mentioned that in Zad
al-Ma'ad and others, if somebody is
interested to read more about it.
And I lean toward that position, that really
we have to look at the best interest
of the child.
And with this been said, I hope that
any parents who have a dispute over custody,
they always keep in mind what's the best
interest for the child, and also make sure
that you provide the support that your child
needs, which is the child support, that you
must be providing.
Child support is not only finance, it's also
being there, talking to them, you know, being
their life, even if you're not part of
the marriage anymore.
Alright, Jazakallah Khair, that was not an easy
question after all, Barakallah for you.
Thank you very much for your questions, we'll
see you next episode.