Child Custody

Jannah

This is just a topic that I've found a little disturbing lately, as I'm not sure whether this is just Sharia law completely misinterpreted or if its actually the done thing and permitted by the Quran.

If a couple divorce, the woman is allowed custody of her son until he is 7 years old and of her daughter until she has reached puberty when custody will be passed over to the father.
The father then has the right to refuse visitation to the mother on the grounds that she "Isn't a good enough Muslim" (that is, she doesn't wear hijab, has been seen out with men etc)
Some websites have said that the daughter can stay with the mother until the daughter gets married, but the son must always go to the father.
All sites have said that if a woman re-marries, her children must immediately go to the father, regardless of what age they are, unless they are related to the man in question.
In the case that it is proven the man is incompetent to mind the kids, custody is still kept within his side of the family and not given to the children's mother

Does anyone know what exactly is the truth behind thing, because I've been getting mixed responses from each site!?

Hobbes

As a practising muslim should you not already know the answer?

blackthorn

I wouldn't be surprised if different Muslim countries all had different laws about child custody so you will probably continue to get a variety of answers. A website can say anything. To get the real story you'd need to talk to a shariah lawyer but they're not exactly ten a penny over here are they?

the_new_mr

Honestly, I don't know myself.

Here are some links I found on islamonline. There are a few varying opinions even in the same site.

http://www.islamonline.net/servlet/Satellite?pagename=IslamOnline-English-Ask_Scholar/FatwaE/FatwaE&cid=1157365839455
http://www.islamonline.net/servlet/Satellite?pagename=IslamOnline-English-Ask_Scholar/FatwaE/FatwaE&cid=1155460533539
http://www.islamonline.net/servlet/Satellite?cid=1119503543830&pagename=IslamOnline-English-Ask_Scholar%2FFatwaE%2FFatwaEAskTheScholar

They all make some interesting points. One of them says that the children stay with the mother until she remarries in which case they go to the mother's mother and if not to the father's mother and if not then to the father.

I think it all depends on the authenticity of the hadith that states "You are more worthy of having him as long as you do not marry". Also, the Prophet may have known who the father was in this case. If the father is an unfit father then I guess there'd be nothing wrong in taking the case to court in such a situation.

Jannah

Hobbes wrote: »

As a practising muslim should you not already know the answer?

See above- even born Muslims aren't sure of the answer. Quit being such a snot and get over yourself

Thank you the_new_mr, I wasn't aware of which hadith it had been taken from

Medina

But as a born muslim you should know its not part of Islam to call people names.
w/salam

DinoBot

the_new_mr wrote: »

Honestly, I don't know myself.

Here are some links I found on islamonline. There are a few varying opinions even in the same site.

http://www.islamonline.net/servlet/Satellite?pagename=IslamOnline-English-Ask_Scholar/FatwaE/FatwaE&cid=1157365839455
http://www.islamonline.net/servlet/Satellite?pagename=IslamOnline-English-Ask_Scholar/FatwaE/FatwaE&cid=1155460533539
http://www.islamonline.net/servlet/Satellite?cid=1119503543830&pagename=IslamOnline-English-Ask_Scholar%2FFatwaE%2FFatwaEAskTheScholar

They all make some interesting points. One of them says that the children stay with the mother until she remarries in which case they go to the mother's mother and if not to the father's mother and if not then to the father.

I think it all depends on the authenticity of the hadith that states "You are more worthy of having him as long as you do not marry". Also, the Prophet may have known who the father was in this case. If the father is an unfit father then I guess there'd be nothing wrong in taking the case to court in such a situation.

In most cases the remarrying of the woman can result in the loss of her kids.
I wonder why god doesn't want woman to remarry ?

Do women become incabable of loving their child when they marry another man ?
Or are the muslim men they marry incapable of loving a child which is not their own ?


I think most woman would perhaps not re-marry due to the prospect of losing their kids, but then again because there is no welfare system in Islam there is no chance of a signal mother being able to support herself and her kids.

Jannah

Medina wrote: »

But as a born muslim you should know its not part of Islam to call people names.

wtf?? Where exactly did I state that I was a "born muslim" may I ask??

Dinobot seems to have hit the nail on the head- any sites I found on child custody said that the mother nearly always loses custody of her children if she remarries.

What's THAT all about!?

I suppose it's a pretty useful way of keeping her on a short leash after she's excercised her "rights" :rolleyes:

the_new_mr

Jannah wrote:

I suppose it's a pretty useful way of keeping her on a short leash after she's excercised her "rights"

Please watch your terminology.

I shall ask you to re-read my post.

DinoBot

the_new_mr wrote: »

Please watch your terminology.

I shall ask you to re-read my post.

I reread your post and I think Jannah made a valid point. The "right" for a woman to remarry comes at a very high price.

So it is as if woman are discouraged from exercising their rights in this matter.

I can think of no such restriction on men remarrying. I would ask again if you have an opinion on why god doesn't want woman to remarry ? Or is it simply gods will ?

Jannah

the_new_mr wrote: »

Please watch your terminology.

I shall ask you to re-read my post.

In fairness, whatever way I'm going to put it, I'll still be making the same point- a mother should NEVER be seperated from her children unless she is harming them- NEVER. It is beyond belief that the splitting up of mother and child would be condoned just because the mother chose to find happiness with someone else. If the man remarried- well all is well and jolly, but God forbid a woman should dare seek another partner. :rolleyes:

hivizman

There is a fairly definitive-looking statement on child custody here, though (a) this represents only the Hanafi school of Islamic jurisprudence - I don't know whether other schools are less restrictive - and (b) a lot of the references cited seem to be quite old.

But I think that our own child custody laws back in the 19th century were just as stringent, with the father being able to assert custody even if he were the guilty party in the divorce. In Tolstoy's novel Anna Karenina, one of the things that drives Anna to suicide is the awareness that, following her divorce, her husband could refuse her the right to see her son.

In a recently published book Shari'ah Law: An Introduction (Oxford: Oneworld Publications, 2008), the author, Mohammed Hashim Kamali, includes a section on "Issues in Gender Equality and Justice". He notes that there has been some movement on women's rights in recent years, but he is generally pessimistic (quote from p. 268):

Due to the prevalence of entrenched patriarchal custom in many parts of Asia, Africa and the Middle East, matrimonial law and inheritance remained the most challenging areas of concern for women's rights. Conservative Muslim mentality and the 'ulama attitude to issues of gender equality and justice also wavered between partial admission and outright denial which has only added to the nature and size of the challenge. One can hardly speak of reform to someone who denies that gender equality is an issue in Shari'ah and that the challenge is only imaginary and non-existent.

So the issue of women's custody rights under Islamic law will, I am afraid, continue to be a big problem.

By the way, there's a lot of information on the child custody laws of different countries at this website.

the_new_mr

I did say:

the_new_mr wrote:

I think it all depends on the authenticity of the hadith

I'm not saying that it's definitely not authentic, just that it might not be. Must do some research to see just how authentic it is.

DinoBot

the_new_mr wrote: »

I did say:


I'm not saying that it's definitely not authentic, just that it might not be. Must do some research to see just how authentic it is.

So its not about it being right or wrong but how "authentic " it might be :rolleyes::rolleyes:

irishconvert

DinoBot wrote: »

So its not about it being right or wrong but how "authentic " it might be :rolleyes::rolleyes:

Dinobot, do you mind if I ask what is your motivation for posting in the Islam forum? Every post I have read from you, especially your most recent one "Are muslim men that bad ?" is attacking Islam, which is against the charter.

DinoBot

irishconvert wrote: »

Dinobot, do you mind if I ask what is your motivation for posting in the Islam forum? Every post I have read from you, especially your most recent one "Are muslim men that bad ?" is attacking Islam, which is against the charter.

I dont think I was attacking Islam but asking what the motivation was for such ruling, and if Irish muslims found that okay. But tbh I find it strange that religious people consider themselves a pillar of human morality but yet if you look into their faith its quite the opposite. Like in the example above where it blames women's wearing of lipstick on rape. While I would consider this a crime of men.

irishconvert

DinoBot wrote: »

I dont think I was attacking Islam but asking what the motivation was for such ruling, and if Irish muslims found that okay. But tbh I find it strange that religious people consider themselves a pillar of human morality but yet if you look into their faith its quite the opposite. Like in the example above where it blames women's wearing of lipstick on rape. While I would consider this a crime of men.

I also consider rape as a crime of men. But you didn't bother to ask any Muslims their view on this, your mind was already made up when you made that post.

DinoBot

irishconvert wrote: »

I also consider rape as a crime of men. But you didn't bother to ask any Muslims their view on this, your mind was already made up when you made that post.

I think you should stay on topic. This thread is about child custody. What are you thoughts, as a muslim on this topic ?
Are you happy with the Hadith given in the previous post as being the will of god?

irishconvert

DinoBot wrote: »

I think you should stay on topic.

You are the one who brought the other thread into it.

DinoBot wrote: »

This thread is about child custody. What are you thoughts, as a muslim on this topic ?
Are you happy with the Hadith given in the previous post as being the will of god?

To be honest I haven't read the Hadith so I will not comment on it until I do so. BTW, are you aware that not all Hadiths are reliable? Just because something is in a Hadith it doesn't make it the will of God.

Jannah

irishconvert wrote: »

BTW, are you aware that not all Hadiths are reliable? Just because something is in a Hadith it doesn't make it the will of God.

I'm sure it wouldn't have been implemented by practically every (if not all) schools of sharia law if it was unreliable. Assuming it is, would you condone a mother being seperated from her children for simply remarrying?

the_new_mr

Unfortunately, using the "most sharia schools implement it" argument isn't always a good point of reference.

Plus, we don't always know what is right and that's why we sometimes need guidance. To use one example (and of course God is beyond example), you don't let a 3 year old make their mind up of whether or not they should place a metal fork in an electrical outlet. You stop them from doing it because you know better. In a similar way, sometimes we need guidance from God because we don't always know what's best for us.

That's not to say that this particular hadith is authentic, just that the principle of receiving guidance from a being Who is more Wise than we are is an important one to keep in mind when talking about religious guidance in general.

PDN's work of genius covers this very well. I'd suggest everyone reads it.

hivizman

the_new_mr wrote: »

PDN's work of genius covers this very well. I'd suggest everyone reads it.

I've just read this and would endorse the recommendation. A very well structured analogy.

Something that happens with any legal or moral code, and I don't want to single out Shari'ah in particular, is that you have a range of interpretations from a very literalist approach to one that tries to discern the aim or purpose underlying the code's provisions. So for example hadiths report the sayings and actions of Muhammad (and his family, companions and successors), and in some cases they give a context for the sayings and actions that help us to understand the underlying purpose - sometimes this suggests that Muhammad was dealing with a specific case and on other occasions it is reasonable to conclude that the saying or action has a more general or even a universal application. It's also possible to infer from what is known of social, economic and political relationships in 7th century (CE) Arabia the likely context of particular sayings. If I were a scholar or jurist, which I'm not, I think I'd want to consider what the significance of things like specific ages of children were in the context of that time and place, different notions of parenthood and guardianship and so on, and then ask what the purpose of the saying was against that background. Then I'd think about how things are now different, and what would be the modern equivalent of the earlier saying. For example, was a boy of seven considered to be "grown up" in 7th century Arabia in a sense that we would now not recognise until a boy was 16 or 18?

However, I get the impression that the authorities in many countries with majority Muslim populations follow a literalist approach to interpreting the sources of Shari'ah, and this does have real world consequences, particularly when parents from different countries come up against laws rooted in rigid interpretations.

the_new_mr

Yeah, you're right. The concept of ijtihad (making an effort of understanding and interpreting religious texts in our modern world) has more or less frozen in a lot of Muslim countries (especially the Arab world). Turkey is now undertaking a project but I fear that's more driven by a want of acceptance in the EU than honest intentions for religious understanding (only God knows for sure and may He forgive me if I'm being too unfair on the people performing this task).

Jannah

the_new_mr wrote: »

Plus, we don't always know what is right and that's why we sometimes need guidance. To use one example (and of course God is beyond example), you don't let a 3 year old make their mind up of whether or not they should place a metal fork in an electrical outlet. You stop them from doing it because you know better. In a similar way, sometimes we need guidance from God because we don't always know what's best for us.

I still don't understand how there can be any reasoning behind the practice. It just doesn't make sense. But then again, I don't think a lot of Jewish and Christian practices make sense either. Still, this is a rule that no doubt causes a lot of heartache for a lot of mothers and I can't see any intelligence behind it.

hivizman

Jannah wrote: »

I still don't understand how there can be any reasoning behind the practice. It just doesn't make sense. But then again, I don't think a lot of Jewish and Christian practices make sense either. Still, this is a rule that no doubt causes a lot of heartache for a lot of mothers and I can't see any intelligence behind it.

A lot of things don't really make sense to us but probably seemed perfectly reasonable and normal in their time. For example, when Muhammad was born, his grandfather Abdu'l-Muttalib (the Prophet's father died before Muhammad was born) looked for a foster-mother from the country tribes to act as wet-nurse. Muhammad spent the first four years of his life living in the desert, and saw his mother only two or three times during that period. To us today this seems bizarre, but apparently it was common practice at the time (and may even have been in the child's interest, as there are hints in my source - Ibn Ishaq's Sirat Rasul Allah as translated by Guillaume, pp. 70-72 - that Mecca was prone to epidemics, so the desert was healthier for young children).

I don't want to adopt a relativist position and say that whatever people did at a particular time or in a particular place was in itself acceptable or good, but I think that we need to make an effort to understand why people did what they did and only then criticise it. I actually agree with you that, in today's world, the common interpretation of the Shari'ah child custody laws can be cruel in its application. But it's only in the last few decades that our own societies have given preference to the mother in custody cases - until quite recently, if my memory isn't deceiving me, mothers who were considered to have "deserted" the matrimonial home would often be refused custody.

Jannah

Very good points hivizman- probably one of the first posts that I can somewhat understand from a moral perspective!

I found a really great book today by Ruqaiyyag Waris Maqsiid (bleeh, what a mouthful!) and he explained the whole child custody issue really well and the best thing about his book is that he's realistic, kinda funny sometimes and doesn't resort to "Because God says so" when the going gets tough! Some bits about child custody:

"Normally custody of the children is given to the mother, but the responsibility of providing for the remains with the father. All settlements concerning children should be done amicably and with the best interests of the children at heart. Sometimes, it was even considered best for the child to choose with which parent he or she would live with."

The Prophet said to the child: "This is your father and this is your mother, so take whichever of them you wish by the hand." The child took his mother's hand, and she went away with him (Abu Dawud)

"In some circumstances, however, this is not considered wise. Muslim men who have married British women will often seek to keep custody of the children, or may take the children to his mother's household. This is considered better than the common single parent situation in the United Kingdom, with women sometimes struggling to raise children in poor housing on meagre finances.
It is very wrong, however, for a Muslim man to cause terrible grief and anxiety to the mother of his children by kidnapping them. All arrangements should be negotiated openly, legally and as amicably as possible and, if possible, both parents should maintain contact with their children. Divorced parents must make sure they love their children more than they hate eachother."

"Morocco recently gave women the right to retain custody of their children. The conservatives opposed this, but Morocco's modernising King, Muhammad VI (a direct descendant of the Prophet) backed the reformers and defended the changes with copious references to the Qur'an"

But yeah, tis a fab book, I was flicking through and I found out that Islam actually allows the use of contraception (as long as it doesn't destoy an already fertilised egg, eg morning after pill) now there's progression!

hivizman

Jannah wrote: »

Very good points hivizman- probably one of the first posts that I can somewhat understand from a moral perspective!

Thanks - I must warn you that I'm not a Muslim (a not very good Christian if anything), so I can't write with any real authority on Islamic topics.

Jannah wrote: »

I found a really great book today by Ruqaiyyag Waris Maqsiid (bleeh, what a mouthful!) and he explained the whole child custody issue really well and the best thing about his book is that he's realistic, kinda funny sometimes and doesn't resort to "Because God says so" when the going gets tough!

Ruqaiyyah Waris Maqsood is actually a woman, she was a teacher for many years and converted/reverted to Islam about 20 years ago. She has a website here. She is, it seems, one of the main people behind GCSE Islam (I'm really learning a lot tonight, because I hadn't realised that there was such a thing, though why not?) There's a summary of her views on Islam and Women here. She makes the important point that we have to untangle the genuine teachings of Islam from local cultural traditions. By the way, when you come across an interesting item such as the book you referred to, it's really helpful to give details and even a link so that interested people can follow it up. (Though I don't always do this myself )

I'm off on holiday tomorrow (God willing) and look forward to catching up when I get back.

DinoBot

hivizman wrote: »

Thanks - I must warn you that I'm not a Muslim (a not very good Christian if anything), so I can't write with any real authority on Islamic topics.

Makes sense now why your posts seem....................well, reasonable

the_new_mr

You just don't let up, do you?

Good old Ruqaiyyah Waris Maqsood. She's dead on and knows how to get a point across well.

Jannah

the_new_mr wrote: »

Good old Ruqaiyyah Waris Maqsood. She's dead on and knows how to get a point across well.

Ooops, I thought the first time I read that you said "she's dead now"!! But yeah, she's pretty good at making a clear point- its not rambling or constant references, its just... normal!! Plus she goes into pretty much every controversial topic we've ever discussed on this board- and then some!!

hivizman wrote: »

Thanks - I must warn you that I'm not a Muslim (a not very good Christian if anything), so I can't write with any real authority on Islamic topics.

I always thought you were a Muslim! Lol, you make a pretty good case for them, though, which is good because nobody likes to dislike something thats so positive for so many people, well, unless they're weird or bitter or something!

hivizman wrote: »

Ruqaiyyah Waris Maqsood is actually a woman

:eek: Really?! Wow, I didn't see that coming! Although really, I should have, there's a certain feminist aspect to her book- I just thought it was a very PC man lol

hivizman wrote: »

I'm off on holiday tomorrow (God willing) and look forward to catching up when I get back.

Have fun! We'll have plenty for ya to read when you come back!

Jannah

Oh ho ho, just finished reading another book- and if anyone wants the crap rightly scared out of them in relation to child custody then I'd strongly recommend reading "Not Without My Daughter". Its brutally honest and really shows how terrible an impact these family laws have on people's lives and how much they are being exploited for the male's benefit. Although I will warn, the writer, Betty Mahmoody, often collectively curses Islam by saying things like "his muslim eyes lit up with anger..." and the like, when if fact, I have never in my life heard the like of "his Christian eyes lit up in anger.." and the like, but its hard to criticise the woman after what she went through. Definitely a must read for anyone any way interested in the topic.

But on further thought, it probably would have been a reasonable law back in the day when men were the breadwinners and it would have been cruel on both mother and child if they were expected to get by on their own (although alimony comes in there...!) and it would have been somewhat understandable... but these days... argh.... I really do feel sorry for those women...

Anyway, as Hivizman earlier recommended, I've found a couple interesting sites about Betty's case in specific:
http://www.aeispeakers.com/video.php?SpeakerID=647
http://en.wikipedia.org/wiki/Betty_Mahmoody
and the film, which personally I'm not too wild about because it's touching on the propaganda side of things, but anyway... http://youtube.com/watch?v=VtkfBdJo2mQ


Yes, it could be said that it's an extreme example, but it does happen.

HOWEVER, there is an interesting part of the hadith that actually allows for deception:
"Maslama said 'Oh Messenger, we shall have to tell lies.' 'Say what you like' Muhammad replied. 'You are absolved, free to say whatever you must.' Ishaq 365 / Tabari VII:94