Divorcing couple disagree about custody of the children
Fatwa No: 88331

  • Fatwa Date:21-7-2004 - Jumaadaa Al-Aakhir 4, 1425
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Question

My husband and I are in process of divorce. We have 2 young daughters (9, 8). He refuses to let me raise them and have them with me. I am a practicing Muslimah and try every day to get closer to Allah, InshaAllah. As for my husband, he is also practicing Islam and only Allah knows what really is in his heart. I really do believe that my children will be better off with me. I am planning on moving closer to my family (who are also Muslims) and give my girls an Islamic environment. My husband's family is not Muslims or do they care about Islam or the girls. I really would like to know what is the ruling according to the Qur'an and the teaching of our beloved Prophet Mohammed (sallali wa salam). My intention is to raise my daughters in the manners that will please Allah. May Allah reward you for your site and for your efforts to help all of us.

Answer

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  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) is His slave and Messenger.

The stability of marital life and the spread of affection, love and intimacy are all among the noble objectives for which Islam has legislated marriage.

So, both the husband and the wife should endeavor to fulfill such objectives and avoid anything that could affect their achievement.

So, we advise you both to be patient and weigh the matter in a reasonable and rational way. You should avoid decision based on simple emotions and think about the consequences. Divorce is not always a solution; it is rather adding more complications to a situation that is already difficult. Divorce results in splitting a family and spoiling the children. So, make the interest of your children a priority.

Now, if there is no other way except divorce, then Islam initially gives the right of custody and fostering of the children to the mother.

However, the Muslim jurist have different opinions in regard to the age at which the right of the mother to foster the children expires. The most preponderant opinion is that when the children reach the age where they become able to distinguish and choose, they are given the chance to choose the parent they prefer to stay with.

Nevertheless, if it is feared that their religion might get affected if they live with their father, then they should stay with their mother as long as necessary, provided there is no impediment to their staying with her.

Since in most cases such issues lead to dissension and dispute, we suggest that you take this matter to Islamic courts or Centers in your area to study the matter and give you the appropriate opinion and best solution.

Allaah Knows best.

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