Who has the custody of the child religiously in divorce?

- If the husband of a woman dies, does she have to look after the children of her husband?

Dear Brother / Sister,

According to the Islamic law, the custody of the child is primarily given to the woman. For, women are more compassionate, patient and skilled than men in terms of child care. The first woman who has the right of custody is definitely the mother of the child. As a matter of fact, a woman made the following complaint to the Prophet (pbuh):

“After divorcing me, the father of my child wants to take my son, whom I bore in my womb, breastfed and brought up in my lap, from me.” The Prophet (pbuh) stated the following: “It is your right to have the child unless you marry.” (Abu Dawud, Bayhaqi and Hakim narrated it; see al-Fiqhul-Islami, VII/720)

According to Hanafis and Shafiis, the person that has the right of custody after the mother is the mother of his mother, mother of his father, his sister and his maternal aunt.

This list forms a long chain among fiqh scholars and there are different orders. (ibid)

Thus, if the children remaining from the woman’s previous husband do not have their parents, they will have to be looked after by their grandmothers and maternal aunts.

If that mother is the mother of those children remaining from her previous husband, she has to look after them if there is nobody else to take care of them. If there are others to take care of the children, the woman does not have to take care of them. When the woman marries, she loses the priority of custody. (ibid)

The man who is to marry a woman does not have to accept the responsibility of her children. However, if there is nobody else to look after them, he has to look after them. Otherwise, the children will be destroyed. The same thing is valid for a woman who marries a man who has children. She does not have to take care of his children. However, if the children need care and there is nobody else to take care of them, there is nothing else to do: she will either have to agree to take care of them or refuse to marry.

Questions on Islam