Tuesday, 11 October 2011

If a divorced woman remarries, she has no right to custody


I am divorced and my x-wife. My x-wife has remarried to a Muslim. We have four sons ages 1, 3, 5, & 7. I have requested majority custody of our sons, but she has refused and has made it very difficult for me to visit with our sons. What are my rights and obligations under these circumstances?.

Praise be to Allaah.


The mother has more right to custody of her children before
the age of seven so long as she does not remarry, in which case the right
passes to the one who is most entitled to that after her, because Ahmad
(6707) and Abu Dawood (2276) narrated from ‘Abd-Allaah ibn ‘Amr that a woman
said: “O Messenger of Allaah, my womb was a vessel for this son of mine and
my breasts gave him (milk) to drink, and my lap was a refuge for him, but
now his father has divorced me and he wants to take him away from me.” The
Messenger of Allaah (peace and blessings of Allaah be upon him) said to
her: “You have more right to him so long as you do not remarry.” This
hadeeth was classed as hasan by al-Albaani in Saheeh Abi Dawood. 

It is obligatory to allow the father to see his children and
to ask how they are, whether they are in the custody of the mother or of
someone else. 

Because the mother’s right to custody is lost when she
remarries, then it should be given to the one who is most entitled to that
after her. There was some difference of opinion among the fuqaha’ as to who
has more right after the mother. Some scholars said that the right passes to
the mother’s mother. Shaykh al-Islam Ibn Taymiyah was of the view that the
father has more right than the mother’s mother, on which basis custody
should be given to you. Al-Sharh al-Mumti’, 6/26, complete edition). 

Similarly if the mother’s mother is a kaafirah or an immoral
person, then custody must be given to the father, even according to those
who say that the mother’s mother has more right than the father. 

It should be noted that what is meant by custody is keeping
and raising the child. Hence a person’s right to custody is lost if he is
immoral and corrupt, or careless and heedless, or if he travels a great deal
which will harm his children’s interests. 

The parents should cooperate in this matter, and pay
attention to the child’s interests, so that their disputes will not
adversely affect the children. 

There is no Qur’aanic verse concerning this matter which
specifies who is more entitled to custody, but the following verses should
be sufficient for the Muslim: 

“And whatsoever the
Messenger (Muhammad) gives you, take it; and whatsoever he forbids you,
abstain (from it). And fear Allaah; verily, Allaah is Severe in punishment”

[al-Hashr 59:7] 

“But no, by your Lord, they can have no Faith, until they
make you (O Muhammad) judge in all disputes between them, and find in
themselves no resistance against your decisions, and accept (them) with full

[al-Nisa’ 4:65] 

“It is not for a believer, man or woman, when Allaah and
His Messenger have decreed a matter that they should have any option in
their decision. And whoever disobeys Allaah and His Messenger, he has indeed
strayed into a plain error”

[al-Ahzaab 33:36] 

The Prophet (peace and blessings of Allaah be upon him)
ruled that the mother loses the right to custody if she remarries, as stated
in the hadeeth quoted above, so the believing woman has to accept that and

And Allaah knows best.

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