Who is more entitled to CUSTODY OF THE CHILD? Father or Mother?!
* Custody is aimed at looking after the child, so it should not be given in a way that will be harmful to his welfare and his religious commitment. Al-Mughni (8/190).
* In the happening of divorce, the mother maintains custody of the children until they are 7 years old, so long as she does not marry again. Ibn ‘Amr radiyallahu ‘anih reported that a woman said: O Messenger of Allah, my womb was a vessel for this son of mine, and my breasts gave him to drink, and my lap was a refuge for him, but his father has divorced me and he wants to take him away from me. The Messenger of Allah salallahu ‘alayhi wasalam said to her: “You have more right to him so long as you do not remarry.” Ahmad (6707) and Abu Dawood (2276); classed as hasan by al-Albaani in Saheeh Abi Dawood, and classed As saheeh by Ibn Katheer in Irshaad Al-Faqeeh (2/250).
* Mother is more entitled to custody of the child so long as the child has not reached the age of discernment (7 years old), as the child at that stage needs the kind of compassion and care that only women can give. And this right is lost if the woman remarries, because she will be sidetracked by her new husband from taking care of her child due to seeming conflict of interest between the child and the new husband. Ibn al-Mundhir rahimahullahu reported that there was scholarly consensus that the mother’s right to custody is surrendered if she remarries. Al-Kaafi by Ibn ‘Abd al-Barr (1/296); Al-Mughni (8/194).
* Upkeep of children is obligatory upon the father according to scholarly consensus, whether he keeps his wife or divorces her, and whether the wife is poor or rich. Upkeep of children includes accommodation, food, drink, clothing and education, and everything that the child needs, in fact, the mother who has custody of a child who is still breastfeeding has the right to ask for payment for nursing the child. al-Mughni (11/430) Fataawa al-Kubra (3/347) Rawdat al-Taalibeen (9/98), Al-Rawd al-Murbi’ (3/251). At-Talaaq (65: 6-7).
* If the husband is rich then he must spend according to his wealth, and if he is poor or of moderate means, then he must also spend according to his means. If the parents agree upon a specific amount on money, whether it is great or small, then that is up to them. But in the case of dispute, the one who should decide about that is the qaadi (judge) Talaaq (65: 6-7).
* Shaykh ‘Abd al-Rahmaan al-Sa’di rahimahullahu said: But if one of them (mother or father) neglects their duties with regard to custody and care of the child, then he forfeits his guardianship and the other should be appointed instead. Al-Fataawa al-Sa’diyyah (p. 535).
* If she remarries, custody passes to the one who comes after her. There is a difference of opinion among the fuqaha’ concerning that. Some of them think that it passes to the maternal grandmother and this is the opinion of the majority of the four madhhabs. Some think that it passes to the father, and this is the view favored by Shaykh al-Islam Ibn Taymiyah and Ibn al-Qayyim. See al-Masoo‘ah al-Fiqhiyyah, 17/303; ash-Sharh al-Mumti‘, 13/535, Islam question and answer.
* If the mother has not remarried and the child has reached the age of seven years:
If the child is MALE, he should be given the choice between his father and mother and then live with the one he choose. A woman came to the Messenger of Allah salallahu ‘alayhi wasalam and said: May my father and mother be sacrificed for you. My husband wants to take my son away even though he benefits me and brings me water from the well of Abu ‘Anbah. Her husband came and said: Who is disputing with me concerning my son? The Prophet salallahu ‘alayhi wasalam said: “O boy, this is your father and this is your mother, take the hand of whichever of them you want.” And he took his mother’s hand and she went away with him. An-Nasaa’i (3496) and Abu Dawood (2277) this hadeeth was classed As saheeh by Al-Albaani in Saheeh Abi Dawood.
* If the child is FEMALE: According to Ash-Shaafa‘i she should be given the choice to choose between them; according to Haneefah the mother is more entitled to custody until the girl gets married or starts to menstruate; according to Maalik the mother is more entitled to custody until she gets married and the husband consummates the marriage with her; and according to Ahmad the father is more entitled to custody, because it is more appropriate for the father to take care of her. Al-Mawsoo‘ah Al-Fiqhiyyah, 17/314-317. So, this is subject to Qadi (Judge) decision in your community.
Islam is our religion, cultural practices are allowed whenever it does not contradict the Islamic rulings. These are Islamic rulings, who entitled to child guardianship may not be the aforementioned in your culture, your culture cannot supersede Islamic rulings if you’re a believer.
May Allah grant us benefiting understanding of His religion.