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Fatwa CenterSon born to a lady before the husband became Muslim
Question
Before my husband and I were Muslim he had a child (boy) with a lady. The child is now seven; we want full custody, Insha Allah but for now to teach him Islam. But the mother is refusing us to teach him. What can you suggest? For 3 years now she has refused us to see the child. Should the father the boy from seven, or what is the ruling?
Answer
Praise be to Allah, the Lord of the Worlds; and may His blessings and peace be upon our Prophet Muhammad and upon all his Family and Companions. The widow or divorced mother is entitled to the custody of her minor child as long as she stays unmarried. The Prophet (Sallallahu Alaihi wa Sallam) was quoted as saying to a divorced Muslim lady: You are entitled to keep the baby with you unless you got married . [Recorded by Abu Dawood ] The mother has no right to prevent the kid from seeing his father or prevent the father from visiting his kid. The above rule applies to the Muslim mother who is entrusted with the pious upbringing of the child. But if it is feared that she may spoil the kid's faith and undermine his moral values or if she is a non-believer, indecent or extremely wicked, then in this case the custody of the child should pass to the closest next of kin who is entitled to take care of the child. The renowned scholar Ibn Qudamah stated in his book 'al-Mughni' that: custody of a child cannot be established for a non-believer over a child…. If a wicked Muslim is not entitled to the child's custody, the non-believer (Kafir) is initio not entitled to it, because the non-believer is far more harmful and detrimental to the child . If the child attains the age of 7 years old and has sound judgement, he or she has the choice of staying with either his mother or father, and his choice should be respected and enforced. Abu Hurairah narrated that a divorced couple were having a dispute over the custody of their child and they appeared with the kid before the Prophet (Sallallahu Alaihi wa Sallam) and he asked the child: Here is your father and your mother with whom do you want to go? The child sided with his mother and therefore she was allowed to leave accompanied by the child . Ibn Qudamah further stated that: if the child is asked to choose between one of his parents and he becomes confused and unable to choose one of them, then a lot is to be drawn and the parent who wins the lot is entitled to the custody of the child. In this case both parents are at the same footing . Casting the lot implies that both parents are eligible to the custody of the child. But if one of the parents is a non-believer or extremely wicked, he is not eligible to the custody of the child and in this case it passes to the other parent. In this context Ibn Qudamah is quoted as saying: the child is allowed to choose between one of his parents on two conditions: that both of them are eligible to the custody, if one of them is not eligible he/she is considered non-existent and the eligible parent is entitled to take care of the child. The second condition is that the child should has a good mental capacity. But if the child is insane or an idiot, the mother is entitled to his/her custody, and there is no need to ask the child to choose between his parents because he lacks the mental capacity to make the proper selection, even if he, she is an adult . Allah knows best.
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