13. CHILD CARE AND CUSTODY
CHILD CARE AND CUSTODY
(The meaning of child care in Sacred Law is the protection of someone who does not possess discernment and cannot manage for himself, whether a child or a mentally ill adult, by seeing to his interests through such things as bathing him, washing his clothes, or grooming him; or securing an infant in the cradle, turning him over to sleep, and protecting him from death or harm. It entails a kind of authority and control and may be possessed by either men or women, though women have a better right to it, since they are tenderer towards children, more patient in carrying out the demands of the task, more discerning in raising children, and more steadfast in staying with them. The following discussion first centers on who best deserves the custody of a child, in order of precedence, and then treats the characteristics of the guardian and ward.)
The person with best right to custody of a child (in order) (when there is a dispute concerning who should have it) is:
1. the mother;
2. the mother’s mother, mother’s mother’s mother, and on up, such that the one of the generation closest to the child takes precedence;
3. the father;
4. the father’s mother, father’s mother’s mother, and on up, where again, the one of the generation closest to the child takes precedence;
5. the father’s father;
6. the father’s father’s mother, her mother, and on up, where the one of the generations that is closest takes precedence;
7. full sister;
8. full brother (though when the siblings are all male or all female and there is a disagreement over who should have custody, they draw lots to see who will get it. When both males and females exist, females take precedence);
9. the child’s half brothers or sisters from the same father;
10. the half brothers or sisters from the same mother;
11. the mother’s sister;
12. the daughters of the full brothers;
13. the sons of the full brothers;
14. the daughters of the half-brothers from the same father;
15. the sons of the half-brothers from the same father;
16. the daughters of the half-brothers from the same mother;
17. the sons of the half-brothers {rom the same mother;
18. the father’s sister;
19. the father’s brother;
20. the daughters of the mother’s sister;
21. the daughters of the father’s brother;
22. and then the son of the father’s brother.
The necessary conditions for a person to have custody of a child are:
a) uprightness (a corrupt person may not be a guardian, because child care is a position of authority, and the corrupt are unqualified for it. Mawardi and Ruyani hold that outward uprightness 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 (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 (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).
(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 (in a way that threatens the students’ belief in Islam).)
A woman has no right to custody (of her child from a previous marriage) when she remarries (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 (new) husband agrees or not (since the child’s custody in such a case automatically devolves to the next most eligible on the list), unless the person she marries is someone (on the list) who is entitled to the child’s custody anyway (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).
When a child reaches the age of discrimination (which generally occurs around seven or eight years of age) he is given a choice as to which of his parents he wants to stay with (since the Prophet (Allah bless him and give him peace) gave a young boy the choice between his father and his mother. The child is only given such a choice when the necessary conditions for child custody exist in both parents. If one of them lacks a single condition, then the child is not given a choice, because someone lacking one of the conditions is as though nonexistent).
If the child chooses one of the parents, he is given to the care of that one, though if a son chooses his mother, he is left with his father during the day so the father can teach him and train him. (Other possible outcomes of such a choice are when the child chooses both parents, in which case they draw lots to See who receives custody of him; or when he chooses neither, in which case the mother takes precedence since the custody is hers, and the child has not chosen someone else.) If the child subsequently chooses the other parent, he is given to the care of them (for he might want to stay with one of them at one time and with the other at another, just as one desires food at one time but not another. Or the child’s intention might be to maintain good relations with both sides. The author restricts the permissibility of such cases of transferring the child’s custody from one to another by saying:) unless it is apparent that the child is merely enamored with going back and forth or is weak minded (indicating his lack of discernment. In such cases his choice is not followed, and he remains with whomever he was with before reaching the age of discernment).
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