Question:
As Salaamu Alaikum
If a couple breaks up, how are the kids divided up in a custodial arrangement assuming that boys and girls are involved? And, are there any restrictions on where or how far away from the other parent the4 custodial parent can choose to live? For example, Can the custodial parent take the child to Saudi Arabia while the other parent lives in England?
Answer:
Wa Alaikum As Salaam
Bismillahi Wa Billahi At Tawfeeq
As a general rule in Islam, when a divorce takes place, the right of custody in the case of minor children is awarded to the mother first as long as she does not remarry. This is effective in the case of a male up to the age of seven and in the case of a female up to the age of nine. If she remarries then her right of custody is thereafter passed on to her mother, i.e. the children’s maternal grandmother.
After the respective ages of seven and nine, the father has the right of custody. However, both parents have visitation rights when the children are not in his/her custody. Visitation rights should be mutually agreed. Apart from the general rule, the overwhelming advantage of the children also plays an integral part in determining the rights of custody. (In other words, the well being of the child takes precedence over the general rule).
(Ahsanul Fatwa p458-459 v.5)
It should also be borne in mind that the boy remains in his father’s custody until puberty, at which point he has a choice to whom he wants to live with or perhaps he may wish to live by himself. The girl on the other hand will remain with the father until she gets married. (Fatawa Hindiyyah pg 566 v.1)
The right of custody however, will be taken away from the mother if she leaves Islam or indulges in sins such as adultery and there is a fear of the child being affected. (Fatawa Hindiyyah pg 566 v.1)
A divorced woman is not permitted to travel and leave the city with her child to another city, the distance between them being such that the father could not visit his child and return in the same day unless she is taking him to her homeland, which is permitted on condition that her husband had married her there. Otherwise it would not be permitted.
(Qudoori pg 547 , Lubab pg 219 Vol 2)
In conclusion, both parents should be able to visit their child easily and neither parent should do anything to hinder the visitor rights of the other parent.
And Allah knows best.
Mufti Waheeb Saiyed
25/04/2019