Islamic law sets out three stages of childhood. The first stage is the period of weaning. This lasts from birth up to two years of age. The second stage is the period of custody (this is a term of art). This is from age two to the age of discretion, which is usually seven or eight. The third stage is the period of sponsorship. This is from the age of discretion to sexual maturity. The signs of discretion and sexual maturity are set out in the texts and judgment of the child's stage is based on those signs rather than on age. Some children may reach discretion at an earlier age than others.
If a couple divorce while the child is in the period of weaning, there are two possibilities. The couple must agree on one or the other. The first possibility is that the mother does the weaning. If so, she is entitled to full support from the father (Quran 65:6). She does not remarry during this time. The second possibility is that another woman does the weaning. If so, the father pays to support that woman. In all cases, the father has complete financial responsibility for the child and for whoever is providing care for the child.
When the child passes into the period of custody, the mother is favored as long as she is a Muslim (since the father has an obligation to raise the child as a Muslim; in custody disputes concerning non-Muslim children, the mother should be of the same religion as the child). She must also be of good character (this is a requirement for the father as well if he is to have custody) and she does not remarry. The father must provide support for her and the child.
In his discussion of the rules of custody, conservative Saudi scholar Shaykh Muhammad al-Munajjid writes:
Women have more right to custody of children than men; in principle custody belongs to them, because they are more compassionate and more kind, and they know better how to raise small children, and they are more patient in dealing with the difficulties involved. The mother has more right to custody of her child, whether it is a boy or a girl, so long as she does not re-marry and so long as she meets the conditions of custody. This is according to scholarly consensus... But it is best to pay attention to the interests of the child, because his rights come first.
When the child reaches the period of sponsorship, there is a difference of opinion among the Islamic scholars about which parent should sponsor the child. Shaykh Munajjid explains:
The Maalikis and Zaahiris think that the mother has more right to sponsorship of the child, whether it is a boy or a girl. The Hanbalis think that boys should be given a choice, but the father has more right in the case of a girl. The Hanafis think that the father has more right in the case of a boy and the mother has more right in the case of a girl. Perhaps the correct view is that the child should be given a choice if the parents are disputing and they both fulfil the conditions for sponsorship.
Here he lists the views of some of the major schools of thought in Islamic law.
Once the child has reached adolescence, he or she is free to make his or her own choices about where to live.
Islamic law recognizes, as Shaykh Munajjid put it, that the child's rights come first. As the child becomes older and is better able to understand and articulate his or her own interests, the child's free choice is given greater weight.
At the same time, Islam sets out guidelines about what is in the best interests of a child who is too young to understand or articulate his or her own interests. Some of these guidelines include:
- it is in the child's best interests that the parent is of the same religion as the child
- it is in the child's best interests that the parent is of good moral character
- for a child under the age of discretion, it is in the child's best interest to be raised by the mother if possible
There are a lot of misconceptions about Islamic child custody rules. Many people think that a mother never gets custody of her children. As the explanation above shows, this is simply false. The father always has the obligation to provide financially for his child, but the mother is in fact very strongly preferred for custody when the child is below the age of discretion. Many people also think that Islamic rules are arbitrary and don't take into account the best interests of the child. This is also not true.
There are definitely abuses. A judge may hold a very strict definition of what a mother of good moral quality is while holding a very loose definition of what a father of good moral quality is, thus giving custody to an abusive father because the mother is not sufficiently observant in the judge's opinion. But this is due to corruption in the judiciary not to something about Islam itself.