Maliki Fiqh QA

Islamic Questions & Answers according to the Maliki School

Child Custody part. 2 – Shaykh Abdullah Bin Hamid Ali

Question: Asalaamu alaikum,

I want to get more clarification on the question you answered for a sister on child custody. Suppose – the mother’s mother and next of kin are not available on the mother’s side and the father is an abusive father who abused his wife to a point where he tried to kill her?

Does Islam allow in such cases an exception? Meaning for the mother to have child custody. I have a relative whose ex-husband either was mentally ill or just violent. He chased her with a butcher’s knife down the street while She was pregnant to try and kill her. She survived. She divorced him due to his abusive ways. Later on She got remarried and moved to another state which is 450 miles away. He wanted custody – and we helped her to not give him custody.

It was not that She was thinking ‘my daughters’ but She was afraid that he would hurt the kids. He has tried to take them away more than once. At one point when he took them through fraudulent petitions filed in the court – he told the child to claim her step father sexually abused her.

We want to create a relationship where he can establish his rights as a parent and still be a father. We tried but he is has psychological issues. In this case we tried supervised visits which he refused, and the mother had no problem that if over time he displays a change and goes throughcounseling and heals – to transfer custody.

But he has not. His next wife left him for abuse, and his third wife is on the brink of leaving him for abuse.
In such a situation – are we sinful?

Was salaam.

Answer: Firstly, the custodians are of four general classes: i) the maternal grandmother and her female progeny; ii) the female progeny of the maternal grandfather; iii) the child’s father, his testamentary guardian, the executor of his testamentary guardian, and the female progeny of the father; and iv) the male relatives of the family starting with those of the mother’s family as in the order stipulated in the laws of inheritance.

In other words, the father’s rights are not effective until the matter reaches stage three (iii) after all of the female relatives of the mother’s family are exhausted. If we imagine a case when none of those women are alive or fit for custody, then we would have reason to be concerned about the father.

As for denying a father his rights to see his children, mere suspicion is not enough justification for such a depriving. What I’m saying is that because someone “might” be violent or “might” be insane especially coming from one of his antagonists without him being given an opportunity to defend himself before a judge, this does not constitute sufficient reason to rule that the family has not committed a sin by denying him access to his children. If he is declared medically to be insane and a potential detriment to himself and to others by an objective and neutral physician, this would perhaps give us reason to keep the children away from him. Short of that, I am in no position to pass judgment in your favor and against the child’s/children’s father. Such a matter can only be resolved through appropriate arbitration with a fair, judicious, and neutral judge or council.

In addition, “abuse” would also have to be defined. In other words, I’m not sure that if it happens that a man has stricken his wife ‘once’ in a fit of rage that we can consider it abuse according to Islamic legal standards, although western legal methodology might classify it as such. To declare a person an abusive husband takes a little more proof than just speaking of a single incident (especially without speaking of the manner of attack: where he hit? how hard he hit? how much damage was cause?); just as the person’s mental state and the possible offense of the wife that led to the transgression needs to be ascertained according to all appropriate legal criteria (Let’s say the husband, perhaps, catches his wife in bed with another man). Usually, when a person tries to kill another, the one committing such an act is usually charged with “attempted murder.” And most attempted murderers I know usually spend a lot of time in prison or atleast in a mental institution if they are found to be incompetent to stand trial.

I hope this all helps you with your situation.

was Salam
Abdullah

source : http://www.lamppostproductions.com/child-custody-part-ii-2/

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