A CHILD CUSTODY UNDER ISLAMIC LAW

In the name of Allah the most compassionate and the most merciful Thanks be to Allah the lord of both worlds, may His peace mercy and blessings be upon His servant and prophet Muhammad p.b.u.h and his family and companions Until the Day of judgment.

Cases of child custody fall under muamlat in compendiums of Islamic Fiqh. Islam lays down general principles as a directive for deciding child custody cases. In a normal circumstances a child brought up between his parents I.e ( mother and father ) but when it comes to the dissolution of marriage, when father and mother no longer leave together the child should be under the custody of the mother and the maintenance with the father.  A boy child remains under his mother until he is matured, and a girl child until she get married. according to the school Jurist, the custody of the child under mother is 7 years for boy and 8 years for a girl. Thereafter the father shall continue with the custody from there.

 before we proceed with the detailed, it is important to distinguish between the terms; ‘Custody’ and ‘Guardianship’. Though these terms are used interchangeably, both have different implications in Law.

In Arabic language guardianship is termed as ‘Wilayat’ and custody as ‘Hidhanat’.Custody means physical or Material possession of the children, whereas its Arabic equivalent Hidhanat literally means ‘training’ or ‘upbringing of the child’. The term guardianship means the constructive possession of the child which deals with Care of his or her person as well as property and its Arabic equivalent ‘Wilayat’ literally means to ‘protect’ or to Defend. Legally the term guardianship is defined as ‘A person having the care of person of minor or of his property or of both his person and property’. The terms custody and Guardianship seems to have similar connotations, but it is often argued that guardianship is a superior right.

 It was reported that a woman came to the prophet ( p.u.h.m ) complaining that her husband had divorced her and wanted to take her child from her and she carried him in her worm, feed him and always look and care for him, the prophet said. "You are more entitle to your child unless you get married".

QUALIFICATION OF THE CUSTODIAN

1. The custodian should be adult and sane.

2. Should be capable of taken care of the child, that is to say an old, ill person, blind person are not qualify for the custody.

3. Should leave in a place where the child should not undergo any risk against child soul and property.

4. Should be trustworthy in religion, faasik or habitual drunkard has no right for custody.

5. Should not be leaving with an infectious disease like leprosy or elephantiasis.

6. Should not  e touching the child's property.

The conditions of custody are: being accountable (i.e., an adult of sound mind etc.), being free (as opposed to being a slave), being of good character, being a Muslim if the child concerned is a Muslim, and being able to fulfil all obligations towards the child. The mother should not be married to a person who is a stranger (i.e., not related) to the child. If one of these conditions is not fulfilled and there is an impediment such as insanity or having remarried, etc., the woman forfeits the right to custody, but if that impediment is removed, then the right to custody is restored. But it is best to pay attention to the interests of the child, because his rights come first.

THOSE WHO HAVE RIGHT OF CUSTODY ACCORDING TO HIERARCHY ARE AS FOLLOWS

1.  Mother ( irrespective of her religion)

2. Mothers mother ( how high so ever )

3. Maternal Aunt

4. The mother's maternal Aunt

5. The father's mother

6. The father

7. The paternal Aunt

8. The child sister

9. The father executer

10.Any one appointed by court

11. The child brother, uncle, and Paternal grandfather.

The period of custody lasts until the age of discretion and independence, i.e., until the child is able to discern what is what and is independent in the sense that he can eat by himself, drink by himself, and clean himself after using the toilet, etc. When the child reaches this age, the period of custody ends, whether the child is a boy or a girl that is usually at the age of seven or eight.

With regard to the effect of travelling on transferring custody, if the parents have separated and are disputing custody, any of the following scenarios may apply to their travelling:

1 – If one of the parents wants to travel without moving, i.e., he or she intends to come back, then the parent who is staying put has more right to the child.

2 – If one of them wants to travel for the purpose of settling there, and the new city or the route is dangerous, then the parent who is staying put has more right to the child.

3 – If one of them wants to move and settle within the same city, and the city and the route is safe, the father has right to the child than the mother, regardless of whether the one who is moving is the father or the mother.

4 – If both parents want to travel to the same place, then the mother should retain custody.

5 – If the place is nearby so that the father and child may see one another every day, then the mother should retain custody.

WAGES  FOR CUSTODY

According to Maliki school, the custodian is not entitle to any wages for the custody, the father will provide only for child mentainace. But in the view of other schools the custodian is entitle to wages in addition to the ordinary mentainace of the child.

Conclusion

Women have more right to custody of children than men; in principle custody belongs to them, because they are more compassionate and more kind, and they know better how to raise small children, and they are more patient in dealing with the difficulties involved. The mother has more right to custody of her child, whether it is a boy or a girl, so long as she does not re-marry and so long as she meets the conditions of custody.

Aisha Jibrin Gunda is a 500L student of the Faculty of Law, Bayero University, Kano. She can be reached via eshajb16@gmail.com