Designating a guardian for their child in case of their death
28-8-2004 | IslamWeb
Question:
My husband and I live in the USA and we have a 4-year-old son who is both American and Egyptian. We are afraid that we might both die or have an accident, in which case the social services could take our son and give him for adoption, so we decided to make a Legal Will naming a Guardian for our son in the event of our death. The lawyer says that we have to make two separate Wills, but that we should both choose the same Guardian. Unfortunately, we cannot agree on who to care for our child. My husband wants to name his mother, and I want to name my parents. My husband’s father is dead, and his mother is old and is caring for his only brother, who is schizophrenic and needs special treatment. This brother doesn’t work, and has a history of violence: he once attempted suicide and he beat his mother when he was off his medication. In addition, my mother-in-law has suffered a stroke a few years ago, and from my personal judgment after seeing her for 3 months, I believe that her concentration and judgment may have been slightly affected, since I have witnessed her putting my son (at that time 1½ years-old) in dangerous situations. Also, she hasn’t finished school, and I don’t believe she will be able to help my son with his studies, or have the energy to take him out anywhere. My husband, though, believes she is very capable of caring for our child just like she raised him and his brother on her own, and won’t take into consideration her age, recent illness and his brother’s problems. My parents are also old, but are in relatively good health, alhamdulillaah. They are both college graduates who can help my son with his education, and I have two married sisters who will be more than willing to help with my son. However, my parents are not as religious as my husband and his mother. They pray, fast, read the Qur'aan, and are good, honest people, and my mother and sisters wear Hijaab, but they listen to music, send their kids to English schools, and mingle with the opposite sex, all of which my husband doesn’t approve of. He always criticizes me about how my parents raised me as “a lover of Western culture”, and looks down upon the fact that I was educated in a British school, and he believes my parents will do the same for our son. He says that as the head of the home, it is up to him alone to choose a Guardian for our child, and that it is Haram and against Shariah for me to write a Will against his approval, and that his family are the first option for Guardianship according to Islamic law. One Mufti has advised that we both write all three grandparents as co-guardians or shared Custodians of the child, but my husband just said, “I’ll think about it”.
1. Is it really Haraam for me to write a Will naming a guardian other than the one chosen by my husband?
2. Does he have the right to choose alone a Guardian for our son, even if I don’t approve of his judgment?
3. Does Islamic law give his family priority for Guardianship, even with his father dead and mine still alive?
4. How can I obey him and name his mother as Guardian in my Will when my conscience will not be satisfied, knowing she is not the best option for my son, and so I could die worried about my child?
5. What should I do?
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.
First of all we ask Allaah to grant you good health and peace and make your son the delight of your eyes and bring him upon the best state with regards to his religion and worldly matters, under your successful care.
We advise you to return to your country if there is no need to stay over there, in order to avoid indulging in religious prohibitions and in order to solve this problem. However, if there is a necessity in staying and there is a religious prohibition, then writing a will becomes more mandatory, and can even be an obligation in such a case. The Prophet 
urged us to write a will saying: "A Muslim who has something to make a will about should not stay two nights without writing his will." [Al-Bukhari and Muslim]
So we advise you and your husband to agree amongst yourselves about this matter and choose what is best for your child regarding his religion and his worldly life. Choosing what is best for your child is a principle from which is not permissible to deviate. If an agreement is reached, praise be to Allaah. However, if there is a dispute, then the father is the one who has the right to determine the will, as he is the guardian of the child, and it is assumed that he would choose the best for him, and it is an obligation on him to choose what is best for his child. Leaving this matter to the father does not mean degrading the status of the mother. Similarly the mother being in priority over the fostering of the children does not mean degrading the status and respect of the father. The person to be appointed as a guardian for the child should be whoever is most appropriate for the benefit and care of the child. It is not necessary for your mother-in law or your family to have priority in the matter.
Anyway, you have to help your husband in this issue and be pleased with whatever he chooses for your child. You should not let this matter be a way for Satan to spoil relations between you, as Satan is keen in achieving disagreement between you. Satan very much likes the one who breaks the marital relation of a husband and wife, as this is confirmed in a narration in the book of Imaam Muslim 
.
May Allaah bless your lives to reach an old age and see the grandchildren of this son and other children, and this is not hard or difficult for Allaah to fulfill. We ask Allaah to achieve this for you, as He is The All-Hearer, The Responsive.
Allaah knows best.