Custody (hadhanah), child maintenance and lineage

1Hadhanah and guardianship — two different things

Hadhanah is the physical care of a child who cannot yet look after themselves — housing, food and drink, hygiene, love and daily upbringing. Guardianship (wilayah), on the other hand, is authority over the child's person and property: decisions on education, managing property and, for a daughter, acting as her wali (guardian) for marriage.

• Custody is usually given to the mother and female relatives because they are gentler and more patient in caring for young children.
• Guardianship remains with the father (then the paternal grandfather) even when the child lives with the mother.
• Divorce does not sever the child's relationship with either parent. The non-custodial party remains entitled to see and spend time with the child.

2The order of those entitled to custody

The evidence is the hadith of a woman who complained that her husband wanted to take her child after their divorce, and the Messenger of Allah ﷺ said: "You have more right to him so long as you do not remarry" (narrated by Abu Dawud 2276 and Ahmad; graded hasan).

Islamic family law in Malaysia (Act 303 s.81 and the equivalent state enactments) follows the order of the Shafi'i school:

3Conditions for the custodian (hadhin)

A person entitled to custody may exercise it only if they meet these conditions (Shafi'i fiqh; Act 303 s.82 and the state enactments list similar conditions):

1. Muslim — for a child who is Muslim. The Hanafi and Maliki schools allow a non-Muslim mother to care for a young child so long as there is no fear of the child being turned away from the religion.
2. Of sound mind and of age.
3. Trustworthy and of good conduct — not a sinful person (fasiq) who endangers the child's morals.
4. Able — in terms of health and time to provide care.
5. Living in a safe place — not exposing the child to physical or moral danger.
6. For the mother and female relatives: not being married to a man who is a stranger (ajnabi) to the child (see the section on losing the right).

4The age of discernment (mumayyiz) and the child's choice

When a child reaches the age of discernment (mumayyiz — able to tell right from wrong), scholars differ on who is entitled and whether the child is given a choice. The evidence for choice (takhyir) is the hadith of Abu Hurairah: the Messenger of Allah ﷺ gave a boy the choice between his father and his mother (narrated by Abu Dawud, at-Tirmidhi 1357 and an-Nasa'i; at-Tirmidhi: hasan sahih).

5When the right of custody lapses

The right of custody may be lost (and pass to the next person in the order) in the following circumstances, according to fiqh and Act 303 s.83 and the state enactments:

• The mother marries a man who is not a mahram of the child — based on the hadith "so long as you do not remarry". If her new husband is a relative of the child who is also entitled to custody (for example an uncle), the Shafi'i and Hanbali schools do not cancel her right. Al-Hasan al-Basri and Ibn Hazm held that remarriage does not cancel the right.
• Extreme and open misconduct.
• Moving home with the aim of preventing the other party from seeing the child.
• Apostasy.
• Neglecting or abusing the child.

6Child maintenance — the father's responsibility

Allah says: "And upon the father is the mothers' provision and clothing according to what is acceptable" (Surah al-Baqarah 2:233), and "If they breastfeed for you, then give them their payment" (Surah at-Talaq 65:6). The Messenger of Allah ﷺ said to Hind bint 'Utbah: "Take what is sufficient for you and your child according to what is acceptable" (Sahih al-Bukhari 5364; Sahih Muslim, Kitab al-Aqdhiyah).

• Child maintenance — food, clothing, housing, medical care and education — is obligatory on the father even when the child lives with the mother, and even if the mother can afford it.
• The obligation continues for as long as the child needs it: for a son until he can stand on his own feet; for a daughter until she marries (the majority view).
• If the father is absent or unable, the responsibility passes to the grandfather and relatives in the order set out in fiqh.

In Malaysia, the father's obligation to support his children is set out in Act 303 s.72 and the state enactments. A child maintenance order usually remains in force until the child is 18 years old, and the court may extend it for higher education. Arrears of maintenance can be claimed and enforced through a court order, including through the Department of Syariah Judiciary Malaysia (JKSM)'s Family Support Division (BSK).

7Lineage: al-walad lil-firash

The basic rule of lineage is the saying of the Messenger of Allah ﷺ: "The child belongs to the (owner of the) bed, and for the adulterer is the stone (no right)" (Sahih al-Bukhari 2053; Sahih Muslim, Kitab ar-Radha'). That is, a child born within a valid marriage is attributed to the husband without need of other proof.

The minimum pregnancy of six months is derived from combining two verses: "his bearing and weaning is thirty months" (Surah al-Ahqaf 46:15) and the breastfeeding period of two years (Surah al-Baqarah 2:233; Surah Luqman 31:14). 30 minus 24 leaves six months — a deduction narrated from Ali bin Abi Talib and Ibn Abbas.

• A child born six lunar months or more after the marriage contract (and after the husband could have had intercourse with the wife) is attributed to the husband.
• The maximum duration of pregnancy is disputed: Shafi'i and Hanbali four years, Hanafi two years, Maliki five years (another narration four). Malaysian law uses a limit of four lunar years after separation (Act 303 s.110–111).
• A husband may disown a child born within that period only through the liʿan procedure in court (Surah an-Nur 24:6–9). See Talaq & divorce.

8Illegitimate children

An illegitimate child is a child born out of wedlock, or born less than six lunar months (the National Fatwa Muzakarah states six months and two moments) after the date of the mother's marriage contract. Their position:

• Lineage: Shafi'i, Maliki and Hanbali schools — the child is not attributed to the man who caused the pregnancy, even if he later marries the mother. Some scholars (including Ishaq bin Rahawayh, and as chosen by Ibn Taymiyyah) allow the man to acknowledge (istilhaq) the child if the mother was not another man's wife. The Hanafi school establishes lineage if the child is born six months or more after the marriage contract.
• Inheritance: inherits from and is inherited by the mother's side only.
• Wali for marriage: for a daughter, it is the judge as guardian (wali hakim), not that man.
• Maintenance and custody: rest with the mother and the mother's relatives under state Islamic family law.
• They remain a child free of their parents' sin — they must not be insulted or discriminated against: "no bearer of burdens will bear the burden of another" (Surah al-An'am 6:164).

9Children in polygynous families: equal rights

All children of lawful wives have the same standing — lineage, maintenance, inheritance and love are not differentiated according to the mother.

• Justice between children: the Messenger of Allah ﷺ said "Fear Allah and be just between your children" when a Companion wanted to give a gift to only one child (Sahih al-Bukhari 2587; narrated by Muslim, the hadith of al-Nu'man bin Bashir).
• Inheritance: all sons receive equal shares among themselves, and a daughter half the share of a son (Surah an-Nisa' 4:11), regardless of who their mother is.
• Maintenance: the father must provide for each child according to their needs. A maintenance order for the first wife's children may not be reduced simply because the father has a second family — the court assesses all his dependants and his means.
• Registration: children of an unregistered polygynous marriage risk problems with birth certificates, lineage and inheritance. Register the marriage first — see Nikah siri, misyar & urfi.

Sources & references