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Custody of child after divorce

Q: Does a divorced woman who has now remarried have a right over her children from the previous marriage? The former husband claims that she waived her custodial rights by remarrying - and that the boys will remain with him. Please provide guidance.

A: Child custody is a sensitive matter since the family unit has already been compromised by the severe impact of divorce. Parents and guardians must be cognisant and considerate of the best interest of children in custody. The jurists have laid down broad principles that entail the best interest of children and also prescribed parameters that would apply in terms of parental rights of custody. According to the Hanafi school, the right of custody for a boy till the age of 7 years and a girl till the age of 9 years is with the mother. If the mother is not capable or she remarries someone who is not a mahram (blood) relative of the children, then the right of custody will be conferred to her mother (maternal grandmother) etc. and accordingly the chain continues.

The father will assume the right of custody of the boy from the age of 8 years and girl from the age of 10 years. If he is incapable, then custody will be conferred to his father (paternal grandparent) and then others in sequence like paternal uncles etc.

It is however best that these issues be resolved mutually between the families and in the best interest of the children. Unfortunately, it is witnessed that the children often become the tokens of defense and disagreement that parties use to achieve their own selfish goals or to exact revenge. In this way the future and character of the children is adversely affected.

In all instances the father is solely responsible for the maintenance of the children.

Parties are advised to conduct themselves Islamically and amicably and to avoid allowing their differences to impact negatively on the innocent children.

And Allah Ta'ala Knows Best

Shafique Jakhura (Mufti) M.D. Mangera (Mufti)

Darul Ihsan Fatwa Dept.

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