Fatwa No : 90245
Remarried wife concerned about the children being with her ex-husband
Fatwa Date : Jumaadaa Al-Oula 24, 1426 / 30-6-2005
I am a revert to Islam since 1989; all praise to Allah for giving me the true guidance. My question is in regards to family. I have been married to my second husband for 5 years now. Upon divorce from my first husband, (he is Muslim also) we agreed that we would not fight over the placement of the children; however they remained mostly in my home. My ex-husband only lived a few miles away. We were both very active in the children's lives at school and extra curricular activities, as well as within the Muslim community. When I remarried, (with my new husband) I agreed to move to another state; about 5 hours drive from my hometown. All of the children were moving with me also. However, one of my sons did not adjust to the new marriage and my husband forced me to send him to live with his father. It was an extremely difficult situation for both myself and my kids. They had never been separated from me or from each other before that time. After only a few months, my husband decided to move even further away, now totaling about 8-9 hours drive from my hometown. My children did not want to live in this
I've asked my husband to move to my hometown (where my children are) and stay there for about 2 or 3 years; until my children at least reach the high school age and we can share in the responsibility and expenses. There is no problem of employment for myself or for my husband, that part is very workable. My husband feels I'm being unfair to ask this of him and he says that my ex-husband should be the one to move; that he should move to our town so that I can be near the kids. Am I being unfair? What is my right regarding how often I'm allowed to see my children? Does my husband have the right to keep me from my children?
Also, concerning my husband's travels back home; is it proper for him to leave me and our 3year old daughter behind to stay alone in a place with no family or anyone to help us if we are in need while he travels to his country for 1-2 months stay? He is planning a 3rd trip to his country, leaving us behind again; and I'm afraid to stay here in this place without him or family.
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad is His slave and Messenger. We ask Allaah to exalt his mention as well as that of his family and all his companions.
Indeed you and your ex-husband did well by reaching an agreement to nurture the children according to good moral conduct and keeping them from the bad effects that could happen to them because of divorce. This is indeed wisdom in itself and we advise you to continue in this way.
As regards your questions, we summarize them in the following:
1) The mother has more right than the father to foster the children, but if she remarries she loses this right. Then the husband has the right to take the children if there is no female relative who has more right to foster them than their father, such as the grandmother and the like. But if that female relative renounces this right in favour of their father (if he is eligible for this and is not a dissolute person), then this is acceptable. As regards providing for them, this is an obligation on the father as long as they are young and cannot earn their own sustenance.
2) You have the right to visit your children at any time; however, you need the permission of your current husband to go out to visit them. Indeed he has the right to forbid you from visiting them. Nonetheless, your children have the right to come and visit you from time to time and your current husband is not permitted to prohibit you from this right. The jurists stated that if the husband makes an oath on his wife not to go out in order to visit her children, he will not be obliged by Islamic Law to let his wife go out but he will be obliged to let her young children come and visit her once a day, and her grown up children once every week.
3) It is not permissible for your current husband to travel and leave you in circumstances where you are not safe with regards to yourself, your honour and your daughter. So we advise you to talk to him in a nice and good manner and agree with him according to what we have mentioned in this Fatwa in order to achieve what is more beneficial, and not argue with him as this could lead to unpleasant consequences.
Allaah Knows best.
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