Question Summary:
Does the father have child custody rights?

Question Detail:

Sister X and Brother Y were married for 7 years. Sister X consistently refused to consummate their marriage, with one exception, in the 3rd year, which resulted in the conception of their son, now 6 years old.

After 7 years, the brother gave one talaq. The sister abruptly took the child to her parents' home and telephones to say that she had spoken to lawyers and she was not bringing the child back. She refused to allow the brother to see his child for months until he had complied with all her legal, financial and material demands. They were legally divorced two years ago.

Since then, she has had full legal custody of the child and has used the child as a weapon to force the brother to comply with her every whim, refusing any kind of access every time she believes the father is not obeying her 100%. The father has rearranged his entire life and commutes between two cities to be able to see his son at the weekend, a "privilege" which she sometimes witholds when she is annoyed with the brother.

The brother would like to know the Shari position on his rights, and requests any advice on how to proceed. In the UK, where they live, the law automatically gives custody of a small child to the mother and it is very difficult to overcome this.

Answer :

In the Name of Allah, Most Gracious, Most Merciful. 
As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.
Every form of oppression and abuse is totally prohibited in Shari’ah.  Emotional abuse is just as bad if not worse.  The prophet (salallāhu ῾alayhu wa sallam) said,
“Fear oppression! Verily oppression will be a means of darkness on the day of judgement.” [i]
(Sahīh Muslim hadith no 2578 )
 
The sister in question has no prerogative to use the child as a weapon to emotionally abuse the father.  It is a fact of life that not every two people get along with each other.  This does not justify mistreating one another.  The consequences of such foolishness from the mother have a universal impact which she may be failing to perceive.  Her selfishness will damage the future of her very own child. 
 
The child needs his father just as he needs his mother.  The father provides something the mother does not provide and vice versa.  Consider the following statistics from the United States:
 
§  In 2002, 7.8% of children in married-couple families lived in poverty, versus 38.4% of female-headed households.
§  Children living in single-parent households are at twice the risk of suffering physical, emotional, or educational neglect as compared to two-parent households.
§  Children living in two-parent households are less likely to have behavioural problems in school
§  Girls without fathers in the home are more than twice as likely to engage in early sexual behaviour[ii]
§  Fatherless children are twice as likely to drop out of school.
§  A child with a non-resident father is 54 percent more likely to be poorer than his or her father.
§  A study of 3,400 middle schoolers indicated that not living with both biological parents quadruples the risk of having an affective disorder.
§  Even after controlling for income, youths in father-absent households still had significantly higher odds of incarceration than those in mother-father families. Youths who never had a father in the household experienced the highest odds.
§  Of the 228 students studied, those from single-parent families reported higher rates of drinking and smoking as well as higher scores on delinquency and aggression tests when compared to boys from two-parent households.
§  Researchers using a pool from both the U.S. and New Zealand found strong evidence that father absence has an effect on early sexual activity and teenage pregnancy. Teens without fathers were twice as likely to be involved in early sexual activity and seven times more likely to get pregnant as an adolescent[iii]
 
In Shari῾ah, the right of child custody will defer according to the gender of the child:
 
For a female child: 
 
•         From birth until puberty, the mother will have the right of child custody.[iv]
•         From puberty until marriage, the legal custody will be in the hands of the father.
•         Post Marriage, the lady will be in the care of her husband.
 
For a male child:
•         From birth until the age of seven, the mother has the right of custody.  She has the right of custody until he can take care of his own basic bodily functions and needs, such as eating, dressing and cleaning himself. This has been recognised at seven years of age.
•         From seven until puberty, the father has the right of child custody. 
•         Post puberty, the option is at the discretion of the male child.  The Shari῾ah has given the son the freedom to choose with whom to live, or to live on his own.[v]
These rights have been formulated by keeping the interests of the child paramount.  At a young age, the child needs feeding, clothing, changing nappies and constant care and love.  The mother is most suitable to provide all this for the child.  A girl needs to adopt female traits and qualities, hence she is kept in the care of her mother.  If the girl was to be transferred into the care of the child, this would result in the child failing as a mother and wife due to the absence of a role model in her life.  After maturity, the daughter is in need of protection before she is married off, hence the Shari῾ah dictates that the father is ideal as a guardian in this stage. 
As for a boy, he needs the same attention a baby girl needs in his infancy.  This attention is best provided by the mother.  After reaching an age where the child is independent, he needs to acquire masculinity.  Thus, the Shari῾ah states that the father be given guardianship over the boy.
Despite child custody belonging to one of the parents, Shari῾ah grants the other parent visitation rights.  This is a right which the Shari῾ah has given to other parent.  Depriving the other parent from this right will be violation of the laws of Allah the Almighty.  The time of visiting the child is a matter which should be mutually decided.  Such a schedule should be devised which is convenient for all parties involved.[vi]            
Due to legal constraints in your country, in such cases, the best course of action for both the mother and the father is to put the interests of the child ahead of theirs.  Try and understand what the child needs.  Mutually devise a schedule where the child receives adequate parenting from both his mother and father.  The child’s welfare and mental stability is at stake here. 
The mother has to understand that the child needs the attention and company of a father.  May be a neutral and sound family member can negotiate and broker a deal.     
 
And Allah Ta’āla Knows Best
Mawlana Faraz Ibn Adam,
Student Darul Iftaa
UK
 
Checked and Approved by,
Mufti Ebrahim Desai.
www.daruliftaa.net