Child & Custody


m13.2 p 552 The necessary conditions for a person to have custody of a child are:
(a) uprightness (def: o24.4) (O: a corrupt person may not be a guardian, because child care is aposition of authority, and the corrupt are unqualified for it. Mawardi and Ruyani hold that outward uprightness (def: m3.3(f)) is sufficient unless there is open wrongdoing. If the corruptness of a child’s mother consists of her not performing the prayer (salat), she has no right to custody of the child, who might grow up to be like her, ending up in the same vile condition of not praying, for keeping another’s company has its effects);
(b) sanity (O: since a mother uninterruptedly insane has no right to custody, though if her insanity is slight, such as a single day per year, her right to custody is not vitiated by it);
(c) and if the child is Muslim, it is a necessary condition that the person with custody be a Muslim (O: because it is a position of authority, and a non-Muslim has no right to authority and hence no right to raise a Muslim. If a non-Muslim were given charge of the custody and upbringing of the child, the child might acquire the character traits of unbelief (kufr)).

m13.3 p 552 (A: It is offensive to send one’s children to a day-care center run by non-Muslims. It is unlawful to send Muslim children to Christian schools, or those which are designedly atheist, though it is not unlawful to send them to public schools in which religion is not mentioned (N: in a way that threatens the students’ belief is Islam).

m13.4 A woman has no right to custody (A: of her child from a previous marriage) when she remarries (O: because married life will occupy her with fulfilling the rights of her husband and prevent her from tending the child. It makes no difference in such cases if the (A: new) husband agrees or not (N: since the child’s custody in such a case automatically devolves to the next most eligible on the list (dis: m13.1)), unless the person she marries is someone (A: on the list) who is entitled to the child’s custody anyway (O: as opposed to someone unrelated to the child, since such a person, even if willing, does not deserve custody because he lacks the tenderness for the child that a relative would have).

 

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