Hadith 3437

(1) The statement: “You have more right to him as long as you do not remarry”: Know that custody is the right of the child due to their need for someone to care for them. Sometimes they need someone to tend to their physical well-being in custody, and sometimes someone to manage their wealth to prevent harm. Each is assigned to the one most capable and knowledgeable. Guardianship over wealth is given to the father or grandfather because they are more knowledgeable and capable in trade than women. The right of custody is given to women because they are more knowledgeable and capable in caring for children than men, due to their greater compassion and constant presence at home, as stated in Bahr Ar-Ra’iq. They agreed that the right of custody belongs to the mother, whether divorced or not, as long as she does not marry another man, unless she is an apostate or immoral. The basis for this is this hadith. If the child has no mother—because she is deceased, unfit for custody, unwilling to take the child, her right has lapsed, or she has married a non-relative—then the maternal grandmother is more entitled than the paternal grandmother, even if distant, because this guardianship is derived through mothers due to their abundant compassion. One connected through a mother is more entitled than one connected through a father. If there is no maternal grandmother, the paternal grandmother is more entitled than sisters, because she is among the mothers, and thus inherits a sixth, and she has greater compassion for the children, so she is prioritized over sisters and maternal aunts. As for the statement in Abu Dawud’s hadith: “The maternal aunt is a mother,” this is a metaphor that may refer to establishing custody or something else, but the context suggests the former. It remains general, whether in establishing the principle of custody or her being more entitled to the child than anyone else, but there is no evidence for the latter. The former is certain and established, so it does not indicate that she is specifically more entitled than anyone with a right to custody. Thus, the meaning we intended remains without opposition: the grandmother is a mother. If there is no grandmother, sisters are more entitled than paternal aunts and maternal aunts because they are daughters of both parents, and thus prioritized in inheritance. In a narration, the maternal aunt is more entitled than the paternal sister due to his (ﷺ) saying: “The maternal aunt is a mother.” The sister from both parents is prioritized over the sister from the father because one with two connections outweighs one with a single connection due to greater compassion. Then comes the sister from the mother, then the sister from the father, because their right is through the mother. According to Shafi‘i in his later opinion and Ahmad, the paternal sister is more entitled than the maternal sister and the maternal aunt. After sisters, the right goes to the daughter of the sister from both parents, then the daughter of the maternal sister, then the maternal aunt, and the daughter of the paternal sister is deferred after the maternal aunt according to the correct view. Then the right goes to the daughters of the brother from both parents, then from the mother, then from the father. After that, the right goes to paternal aunts, then the maternal grandmother’s maternal aunt, then the paternal grandmother’s maternal aunt, then the grandmothers’ and grandfathers’ aunts. If the child has no woman eligible for custody, and men dispute over him, the most entitled to custody are the agnates in the order of inheritance, prioritizing the closest, then the next closest: the father, then the grandfather, then the full brother, then the paternal brother, then their sons in the same order, then the paternal uncle, then his sons. If they are equal, the most pious is prioritized, then the eldest. However, a young girl is not given to a non-mahram relative like a cousin, nor to a mother unfit for custody, such as one who has apostatized or is immoral in a way that harms the child, like fornication, singing, theft, or wailing, or is untrustworthy by frequently going out and leaving the child, or is a slave woman, nor to an immoral agnate to avoid temptation, unlike a boy. If the child has no agnate, he is given to relatives through the mother according to Abu Hanifah, because they have the authority to arrange marriage in his view, so too with custody. This is gathered from the commentaries of Al-Kanz, Al-Hidayah, Al-Inayah, Fath Al-Qadir, and Umdat Ar-Ri‘ayah.

(2) The statement: “As long as you do not remarry”: Any woman among those entitled to custody who marries a non-mahram of the child loses her right to custody due to his (ﷺ) saying: “You have more right to him as long as you do not remarry.” It is specified to a non-mahram because of the lack of compassion, as he spends little on the child and looks at him with resentment, unlike if the husband is a mahram relative of the child, such as the grandmother whose husband is the grandfather, or the mother whose husband is the child’s paternal uncle, or the maternal aunt whose husband is his paternal uncle, or the paternal aunt whose husband is his maternal uncle. Her right does not lapse because the harm to the child is absent due to the presence of compassion. This is taken from the commentaries of Al-Kanz. It is stated in Rahmat Al-Ummah: They differed on whether custody returns if she is divorced with a final divorce from a non-mahram of the child. Abu Hanifah, Shafi‘i, and Ahmad said it returns because the impediment has been removed. Malik, in his well-known opinion, said it does not return with divorce.