My sister is divorced and has a 7 year old daughter. She got remarried and is now living here in the USA, while her prior husband is still in Egypt.The father wants to see his daughter but she does not trust sending the daughter even for a vacation lest he forcibly keep her. What is the ruling on custody? Does she lose custody according to Maliki Fiqh? If that is the case, does it go to the father, or to her mother?
Please clarify. Also, I believe, that she should be able to keep her daughter until she is married, right? Thanks.
Answer: As Salamu ‘alaykum wa rahmatullah,
Custody rights are extended to those legally entitled in the case of the male child until he reaches puberty and to the female child until she is married. When a mother divorces and is remarried and has a child (be it male or female), she loses right to custody of the child. The next person in line of entitlement is the child’s maternal grandmother; not the father. However, this transfer of custody to the maternal grandmother is only valid when the grandmother lives in a separate residence from the residence of the child’s mother. Otherwise, the grandmother retains her right to custody.
In this particular scenario where a 7 year old girl is taken by her mother from one town beyond the normal distance of travel allowing for one to shorten prayers (48 hashimite miles) away from the girls father, such a decision invalidates the mother’s right to custody for two reasons: Firstly because she has remarried. Secondly because of the abrupt decision to travel without the father’s permission, knowledge, and/or approval such that his daughter is now at an inconveniencing distance from him. The fact that one fears that he may keep her is no legal justification for this. Consequently, and in light of these factors, the child’s mother is disqualified as a legal custodian at this point, and the right to custody is transfered to her next of kin in the father’s home country in the following order:
1- the maternal grandmother, then
2- the mother of one’s maternal grandmother, then
3- the mother’s father’s mother, then
4- the maternal aunt of the child, then
5- the mother’s aunt, then
6- the maternal aunt’s maternal aunt
This list is incomplete, of course, but it should serve the purposes of the question.
Follow-up question: As-Salam alaikum,
Barak Allahu Feek Ya Shaykh Abdullah for your prompt response.
Could you please enlighten me on the reason why my sister would lose custody if she got remarried? I know this is not the only reason why she should lose custody.
Is it because she will not have time to take care of the child? I know the stepfather is very caring and loving to the child.
Answer to Followup Question: The reason is that according to the standard view in the Maliki madhhab, a custodian’s right to custody is voided if he/she travels with the child to a town outside the proximity of the father’s homeland unless the distance is less than 48 hashimite miles. As for the fact that the new father is caring, this has no bearing on the situation. The fact is he is still not the girl’s father. So this is no valid excuse to deny the natural father his right to see and spend time with his daughter. The second thing is that once a woman remarries, her right to custody is transferred to the next in line of priority. So this is a second reason her custody rights are voided. Islam seeks to protect the ward. A particular wisdom that can be inferred from the ruling of disqualifying the mother who remarries from consideration is the protection of the ward. In other words, while outwardly caring, stepfathers typically do not have the same compassion that natural parents do. This opens the ward up to certain abuses that a natural child would not be opened up to. If that ward is a girl, it could also happen that the stepfather might possibly sexual abuse the girl due to her not being as close as her natural father is.
source : http://www.lamppostproductions.com/child-custody-part-i/