All Praise be to Allah Alone. May peace and blessings be upon the Last Prophet. The Permanent Committee for Scholarly Research and Ifta' reviewed what was sent to His Eminence the President of the Permanent Committee for Scholarly Research and Ifta' from His Excellency the undersecretary of the Foreign Ministry for political affairs raised to the Committee by the General Secretary of the Council of Senior Scholars, number (3748) dated 10/9/1411 A.H. He posed a question stating:The embassy of the Kingdom of Saudi Arabia in
reported that Dar Al-Ifta' (the House of Fatwa) in the north of
informed it that an argument arose between a husband and his wife, which led to divorce. The couple has three children including a girl (who is five years old) and a boy (who is nine months old). The father wants to be given the custody of the children, but the mother and her parents see that the children are still underage and that it is better for them to stay with their mother. This is because their father is always busy with his job and his business in selling and buying real estate. Also, he spends the evenings with his colleagues and returns home late at night. Moreover, he treats his children badly. Therefore, giving custody of the children to their father is not beneficial at all to the children. The mother works in a nursery and receives (Part No. 21; Page No. 194) a salary. Also, her children go to the same nursery where she works. She has cared for them and provided them with their needs since she left the marital house. Dar Al-Ifta' asks for a clear Fatwa showing
the period of custody as for both male and female children.
Is it legal for the mother to raise the children instead of their father as she is more beneficial to them than their father who has not asked about them, seen them or participated in meeting their needs such as costs of living, clothes, medical treatment and education for more than a year and a half? Dar Al-Ifta' would like the Fatwa to be in accordance with the Madh-hab (School of Jurisprudence) set by Imam
Ahmad ibn Hanbal
(may Allah be Merciful to him) to be a fixed Fatwa by which Dar Al-Ifta' can be guided in the present time and in the future. Let us benefit by your knowledge. With my best regards.
After reviewing the Fatwa request, the Permanent Committee for Scholarly Research and Ifta` gives the following Fatwa: The person who has more right to be given the custody of the child is its mother in case the couple separated. If the mother gets married to another man, the custody of the child is given to the mother's mother. In case the mother's mother is not alive, the custody is given to the father's mother as custody is better given to women. The child's mother is more merciful to the child than others. It is related by
Abu Dawud that the Prophet (peace be upon him) said to one mother:
You have more right to him as long as you do not marry.
When a male child reaches the age of seven, he will be given the option either to live with his mother or to live with his father. He lives with the part he chooses. (Part No. 21; Page No. 195) If the child is a female and reaches the age of seven, her father has more right to her, as she needs protection and care. The mother herself needs a person who can protect her. However, the custody of a child should not be given to any party that can not protect or reform it. This is the Fatwa we can offer according to the Mad-hab set by Imam Ahmad (may Allah be Merciful to him). May Allah grant us success. May peace and blessings be upon our Prophet Muhammad, his family, and Companions.