بســـم اللــه الرحــمــن الـرحـــيــم
Our Shaykh, Muhammad ibn Hizaam -may Allaah preserve him- was asked the following question:
The questioner says: A woman has a two year old daughter (from a previous marriage), she then got married (to someone else). Who has right of custody over this child, after her mother’s marriage; bearing in mind the child’s maternal grandmother is still alive. Also, if she gets divorced after this, does she get back her right of custody?
If the mother gets married, the right of custody is transferred to the girl’s biological father – not the grandmother, due to the saying of the Prophet ﷺ:
((أَنْتِ أَحَقُّ بِهِ مَا لَمْ تَنْكِحِي))
“You have more right to him as long as you do not get married.”
And the reason behind this – and Allah knows best – is so that she is not brought up in the presence of a strange man.
But if she gets divorced, the scholars differed as to whether or not she gets back her right of custody; and the correct view is that she gets back her right of custody – provided the child hasn’t reached the age of understanding (Tamyeez). So yes, (after divorce) she’s entitled to ask for her daughter back.
Abu Ishaq Muhammad Ibn Ahmad Ba Alawi
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