Child Custody and Maintenance
Fatwa No: 86053

  • Fatwa Date:13-7-2003 - Jumaadaa Al-Oula 14, 1424
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Question

I and my ex-wife divorced last year through Talaq. We are Sunni of Hanafi sect. Ex-wife has custody of only child who is a boy of 2 years. Please advice or give Fatwa on following:
1. Up to what age can the boy remain with mother?
2. When can I claim custody of the boy?
3. Upon Talaq I paid ex-wife her dower and maintenance for her for three months.
4. I have been paying maintenance to ex-wife for my son every month without fail but ex-wife is claiming money for shelter. Can she claim this money for shelter?
5. Ex-wife is well-off and has a good highly paying job.
6. Currently I am not working.
7. Does it make a difference if ex-wife did not breast feed child for 2 years.
8. Ex-wife refuses to accept any clothes or gifts for my child.
9. Ex-wife does not let me or my family see my son.
10. Ex-wife has filed case against me for allegedly failing to provide any maintenance for my son and now wants me to be excluded from having anything to do with my son. Yet she is also claiming more maintenance for my son.
11. Ex-wife has not remarried.
12. Ex-wife is working most of the day and neglects care of my son.
Case is coming for hearing next week therefore please advice or send Fatwa urgently.

Answer

All perfect praise be to Allah, The Lord of the Worlds. I testify that there is none worthy of worship except Allah, and that Muhammad  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) is His slave and Messenger.

The scholars disagree on when to transfer the custodianship of a child from his or her mother to the father. According to the Hanafi School of jurisprudence, the child should remain under the custodianship of his mother until the male child can do without his mother's custodianship; an age which some scholars estimate to be seven. With regard to the female child, she remains under the custodianship of her mother until she menstruates. When the male or the female child reaches this age, his or her custodianship should be transferred to the father because the child at this age needs education and refinement, and the man is in the better position to give it.

As regards maintenance, the scholars are unanimous that a woman who is revocably divorced is entitled to housing, maintenance, clothing and whatever she needs for her sustenance as long as she is in the waiting period (Iddah) or pregnant. When her Iddah expires, she is no longer entitled to either alimony or shelter.

As for this woman's rejection of the maintenance for this child and other gifts presented by his father, then that is unlawful. The child's father should make people witness her refusal of this and the judge should be informed about this so that he could compel her to do that.

However, we would like to draw the attention of all to the fact that it is the Islamic court that has more right to look into such cases. If Islamic courts are not available, the scholars and rational people should look into the case.

For more benefit on the custody of children, please refer to Fataawa 341287, 84575, and 89832.

Allah knows best.

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