Child custody

Q.
A widow with a minor son (3 years) married a man who is not a close relative of the child. It is understood that in this case the mother loses custody of the child. The paternal grandfather demands that the boy be handed over to him as he is the rightful guardian in this case. The mother who is a practising Muslim, observing Hijaab and abstaining from evils such as television, etc., refuses to hand over the child. She argues that the grandfather is a faasiq. He shaves his beard. He spends hours viewing television. There is no proper purdah in his home. Males and females of prohibited categories mingle freely in his home. The grandfather as well as the other inmates of the house visit casinos, game centres and the like. He, his sons and daughters are thorough modernists. Islam is not their guiding light. Does the mother have any right to retain custody in such a situation? Will she be sinning by denying the grandfather custody of the child?

A.
On the contrary, she will gain thawaab for denying custody. It should be well understood that the Shariah’s law of Hidhaanah (Custody and Guardianship) is regulated by the welfare and interests of the child. The prime basis underlying this Law is the welfare of the child, not the emotional feelings of the guardians. In the Shariah, the first demand of ‘welfare’ is the safety and development of the Imaan and Akhlaaq of the child. If these Waajib requirements
are denied to the child as a consequence of the un-Islamic conduct (the fisq and fujoor) of the rightful guardian, the purpose of Hidhaanah is defeated and negated. Hence, if the rightful guardian, the paternal grandfather in this case, poses a threat to the Imaan and morals of the child, as he most certainly is, then it is Waajib for the mother to deny him custody. It is not permissible for the mother to sacrifice her child’s Imaan and Akhlaaq so callously by handing over the child to a reckless faasiq, faajir even if he is the legal guardian. To safeguard her child, the mother may even resort to the secular court to confirm her custody if this becomes necessary.