Date : 29-12-2013

Question :

I have divorced my wife ,who is a Canadian national, an Arab by birth and a Muslim by faith- and since an Islamic court gave her the right to custody and gave me the right to visitation and overnight stay, she took that verdict and presented it to the Canadian embassy to prove her right to custody. This results in many rights in light of the Canadian Law since it doesn`t recognize the father`s right to guardianship over his children. Could you clarify the rights and obligations of the person who has the right to custody and guardianship?

The Answer :

All perfect praise be to Allah. Blessings and peace be upon Prophet Mohammad.

Islam has granted the right of custody to females, and the mother is given priority over others since she raises, educates, feeds and looks after the children under her custody. Abu Dawood reported in his Sunnan: “A woman said to the Prophet (PBUH): “ I kept my child in my belly at pregnancy, breast fed him and looked after him. However, his father divorced me, and wanted to take him away from me.” The Prophet said to her :” You are more entitled to his custody so long as you don`t get married.”

Child support is incumbent on the father, or any of the child`s paternal relatives. If the child was under seven, then he/she stays with the parent who enjoys the right to custody. However, the child who is above seven is given the choice to live with his/her mother or father.

Al-Imam An-Nawawi said: “ When his parents separate, a child who is above seven is given the choice whether to live with his/her father or mother. “{Minhajj At-Talibeen}.

If the person who has the right to custody wanted to travel for a reason, then the child-more or less than seven- stays with the residing parent. However, if that person wanted to settle in another country, then the father is more entitled to custody than the mother. This is in order to protect the child`s best interest in education and support.

Article (176)-2010 of the Jordanian Civil Status Law stated: "If the child under custody holds “ the Jordanian nationality, then she (woman having him under her custody) has no right in residing with him abroad, or taking him outside Jordan for the purpose of residency, save with the approval of the guardian and after making sure that it is in the best interest of the child.”

Consequently, the mother who has the right to custody is obligated to observe the right of the guardian (father) by not travelling with his child except with his consent. As for the procedures and laws effective in courts, the consultation of specialized people is to be sought. And Allah knows best.