Visitation rights when a divorce happens

Answered according to Hanafi Fiqh by DarulIftaBirmingham


Answered by: Maulana Muhammad Afzal Hussain​


Question


Assalamualaikum


I divorced my wife when our first son was 2 months old.

 


She lives in London and I live in Leicester. She says she is ok with visitation if I come every other weekend.

 


I strongly feel when the baby is 1 that as I am rotating weekends throughout the year this would lead to inconsistencies on my part which would be detrimental to a baby’s psychological needs of a father.


I proposed from when the baby is 1 and a half or more she could have the child 3 weeks and me 1 week.

 


Because if I have for a weekend one day would be on the motorway there and back and the dropping of the day would also be mostly traveling.


She feels that 3 weeks her and 1 week I am not Islamically justified.


 


بِسْمِ اللهِ الرَّحْمنِ الرَّحِيْم


In the name of Allah, the Most Gracious, the Most Merciful 


 


Answer:


 


If a separation occurs between the spouses, then the mother has a superior right to the custody of the child, due to the report that a woman said, ‘O Messenger of Allah, this child of mine, for him my belly is like a cradle, my lap like a tent, and my breast like a beaker, but now his father wants to separate him from me.’ The Prophet said, ‘You have a superior right to him, as long as you do not wed.’ (Abu Dawud 2276) (Al-Hidayah, vol: 2, page: 79)


 


If a divorced woman wishes to leave the city along with her child, then she does not have the right to so, due to the injury in this to the father, unless she is going with the child to her hometown, where the husband married her. If, however, she decides to move to a town that is not her hometown, but the marriage took place there then she does have such a right. All these apply when there is between the two towns a sufficient distance. If the two are so close by that it is possible for the father to see his child and then be able to spend the night at his own house there is no harm for her to move there. (See: Al-Hidayah, vol: 2, page: 82-83)


 


If the distance between the city where the divorce has taken place and from where she came from is that the father of the child can travel to see the child and return back before the night, then the mother of the child has the choice to live in that city even if the city is other than the city of where the marriage was solemnized. [See: FatawaAlamghiri, vol: 3, page: 201, Publisher: Bangladesh Taj Company]


 


The conclusion we can come to is if London is her hometown, it is her right to live there with the child. Likewise, if the marriage was solemnized in London then it is her choice to live in London with the child.


 


In terms of visitation rights, there isn’t a particular period of time stipulated in the Shariah. It is based on what is convenient for the parents. It will be best if you request a family member who can contact your ex-wife family or a local Imam to come to a fair and convenient resolution for both parties.


 


Only Allah Knows Best


Written by Maulana Muhammad Afzal Hussain


Checked and approved by Mufti Mohammed Tosir Miah


Darul Ifta Birmingham


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