In a situation of separation of husband and wife whether by divorce or death of one spouse, custody of the minor children is assigned by the Shariah to certain close relatives. In this regard there is an order of priority.
The right of custody firstly devolves on the mother of the children. It is her right to keep her daughters until the age of 10, and the boys until the age of 7 years. Thereafter this right passes to the children’s father.
If for some reason the mother is disqualified by the Shariah, then the right of custody passes to the maternal grandmother. In her absence, to the adult sisters of the minor children. In their absence, to the maternal aunts.
A woman loses her right of custody if she marries a man who is not a Thu rahm mahram (close relative) of the children. Such close relatives are the uncles of the minors, for example. When the mother loses her right of custody it does not follow that she is not allowed to retain custody even with the consent of those whose right it is. With the consent of the rightful guardian, the mother may retain custody provided that the welfare and Deeni interests of the children are not compromised on account of her marriage.
When the mother loses custody, the next in line is the maternal grandmother, not the children’s father nor the paternal grandmother or paternal grandfather as is mistakenly understood in some quarters.
A vital requisite of custody is the welfare and interests of the minors. The interests of the children are not confined to their worldly and physical needs such as food, clothing and shelter. Of greater importance is the Deeni welfare of the children. Thus, if a rightful guardian is a bid’ati, faasiq or faajir, a modernist or one with corrupt beliefs, custody should be denied to such a person notwithstanding his right. In cases of this nature, the Shariah makes exceptions. In fact, it is not permissible to consign the minors to such people who constitute a danger to their Imaan and Akhlaaq (moral character).
Mujlisul Ulama of South Africa P.O. Box 3395 Port Elizabeth, 6056 South Africa