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Fatwa CenterGuardianship of the children of separated parents
Question
After separation between a couple (but not divorced), who will be the guardian of children (three daughters)?
Answer
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad is His slave and Messenger. We ask Allaah to exalt his mention as well as that of his family and all his companions.
Islam has urged that marital life be kept at the best level of affection, and urged the spouses to keep good marital relationship with each other. Allaah Says (which means): {And women have rights (over their husbands as regards living expenses) similar (to those of their husbands) over them (as regards obedience and respect).}[Quran 2:228]. So each spouse is obliged to carry out his obligation and duties towards the other.
We advise the spouses to reconcile because reconciliation is good as Allaah informed us in His Book, especially if you had daughters who are in most need for being raised upon good and noble manners. It is known that disputes among the two spouses have a negative effect on the behaviour of the children. So the spouses should try to reconcile and there is no harm in seeking the help of righteous and pious people; may Allaah enable them to reconcile between you. If reconciliation is achieved, all perfect praise be to Allaah. Otherwise, it is not permissible to keep the matter between the two pending, i.e., no agreement and no divorce, as this is contrary to Islamic Law. Allaah Says (which means): {Either you retain her on reasonable terms or release her with kindness.}[Quran 2:229]. Therefore, we advise the husband to rectify the situation in order to fit the religious requirements.
With regard to the fostering of the children, in principle it is the right of both the parents as long as marriage is still valid, but if there is a divorce then the mother has more right in fostering them as long as there is no obstacle that prevents her from doing so. In such a case the fostering is withdrawn from her and transmitted to the female relatives who have more right in the fostering of the children after the mother. For more details, about fostering of children refer to Fatwa: 87762.
Allaah knows best.
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