Question 202: In the case of an Islam divorce, does the father have fiqhi rights to the children upon divorce? Does the mother have rights to keep the children until she remarries and then the children go to the father? Please, provide references.
Answer 202: According to Islam, the expenditures of the children are the responsibility of their father, although who has custody may vary depending on their age and gender.
Imam Khomeini says: “The custody of the son until two years of age and the daughter till seven years of age is the right of the mother, and after that the mother no longer has any rights regarding their custody and the father can take the children from there on. Nevertheless, the expenditures of the children are the responsibility of the father from the beginning. Also, if the mother gets married to another person during the period that she has custody, she will lose her right and the father will take custody of the children from there on.”[1]
Of course, during this time period, both the mother and father have the right to see their children.
Ayatollah Bahjat (ra) says: “During the time when the father or mother has custody of the children, if the other (who doesn’t have custody) wishes to see the child in order to give him/her something, solve his/her problems or just be beside him/her for a while, the other has no right to prevent such a thing from happening.”[2]
According to Fazil Miqdad and Allama Hilli, it is said that Sheikh Sadouq (ra) believed that kids are in custody of the mother until she marries, but we couldn’t find any reliable sources in this regards.[3]
Those traditions in which say that kids are in custody of the mother are as follows:
- Imam Sadiq (as):[4]
“«قال: سئل ابوعبدالله(ع) عن الرجل یطلق امراته و بینهما ولد ایهما احق بالولد؟ قال المراة احق بالولد ما لم تتزوج.»”
The above mentioned hadith is somehow more reliable than the following!
- The Holy Prophet (PBUH):
- «الام احق بحضانة ابنها ما لم تتزوج.»[5]
- «ان امراة جاءت الی رسول الله(ص) فقالت: یا رسول الله(ص) ان ابنی هذا کان بطنی له وعاء و ثدیی له سقاء وحجری له حواء وان اباه طلقنی واراد ان ینتزعه منی فقال: انت احق به مالم تنکحی.»[6]
It should be noted that those traditions in which say that the kid are in custody of her mother until at the age of seven years of old are Sahih.
These Hadith have the same meaning. Imam Sadiq has asked: if a man has divorced his wife and they have a child, the child is in custody of the father or mother? Imam replied: the mother until she marries. The two and third hadith were narrated from the Holy Prophet (PBUH) as He was asked in this regards and He replied as the same as Imam Sadiq (as).
For further information in this regards, please refer to the following answer:
Index: Permissibility of getting Divorce when your partner has lied, answer 295.
Index: Essential Requirements of a Successful Marriage in Islam, answer 515.
[1] . The Istifia’at (religious Q&A) of Imam Khomeini, vol. 3, pg. 209; also see: Ajwibatul-Istifta’at of Ayatullah Khamenei in farsi, question 1504, pg. 339.
[2] . Tawdhihul-Masa’el (of Imam Khomeini), vol. 2, pg. 516, issue 1986.
[3] . “al-Tanqih al-Raye”, Vol. 3, pg. 271; “Mokhtalif al-Shia”, Vol. 2, pg. 577.
[4] . Wasael al-Shia, Vol. 15, Pg. 191.
[5] . Jawaher al-Kalam, Vol. 31, Pg. 289.
[6] . Al-Fiqh al-Islami wa Adelatohu, Vol. 15, Pg. 192, Hadith 6.