Right of custody over the child, after her mother’s remarriage

بســـم اللــه الرحــمــن الـرحـــيــم

▪️Custody rights▪️

Our Shaykh, Muhammad ibn Hizaam -may Allaah preserve him- was asked the following question:

📩 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?

📝 Answer:

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.

Translated by:
Abu Ishaq Muhammad Ibn Ahmad Ba Alawi

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Original Fatwa: