Important note before reading the rulings

This article explains general Islamic principles and does not replace a court ruling in a specific case. Estimating maintenance, arranging who is entitled to custody, the age at which custody changes, travel with the child, remarriage of the custodian, and the presence of violence or neglect are matters affected by details, evidence, and the recognized legal system in the country.

When there is danger to the child, domestic violence, threat of abduction, or ongoing refusal to pay maintenance, family discussions are not enough. The competent authorities and court should be sought immediately. Neither parent may snatch the child, hide the child, or travel with the child in violation of a court ruling.

What is meant by maintenance and custody?

Maintenance is what the child needs according to what is reasonable, such as food, clothing, housing, medical care, education, and the like, according to the child's need and the ability of the one upon whom maintenance is obligatory.

Custody is preserving the child, caring for the child, managing daily affairs, upbringing, and protection during the stage in which the child needs someone to take care of these matters.

Custody is not the same as maintenance, and it is not the same as guardianship. The child may be in the mother's custody while the child's maintenance remains obligatory upon the father, and the father's legal guardianship remains in its proper places. These rights must not be confused or one of them dropped because of a dispute over another.

What is meant by maintenance in this article is child maintenance. As for the maintenance and housing of the divorced woman herself during the iddah, that differs according to the type of divorce and the presence of pregnancy, and it was explained in the article Rights of the Divorced Woman and the Rulings of Iddah in Islam.

First: Upon whom is child maintenance obligatory after divorce?

The default is that maintenance for children who have no wealth is upon their father if he is able, whether they are in his custody or in their mother's custody. This is because maintenance is a right of the children, not a fee paid to the mother in exchange for allowing the father to see them.

Allah says:

{Lodge them where you dwell, according to your means, and do not harm them in order to make things difficult for them. And if they are pregnant, then spend on them until they give birth. Then if they nurse for you, give them their wages and consult together honorably. But if you are in disagreement, then another woman may nurse for him. Let the one of wealth spend from his wealth, and the one whose provision is restricted, let him spend from what Allah has given him. Allah does not burden a soul except with what He has given it. Allah will bring ease after hardship.} [al-Talaq: 6-7].

From Aishah, may Allah be pleased with her:

"Hind bint Utbah said: O Messenger of Allah, Abu Sufyan is a stingy man, and he does not give me what is enough for me and my child except what I take from him while he does not know. He said: Take what is enough for you and your child according to what is reasonable."

Agreed upon.

The hadith establishes the right of the wife and child to sufficiency according to what is reasonable, but it does not permit someone in modern disputes to secretly take the other person's wealth however they wish. The amount of maintenance, ability, and entitlement may be disputed. The default is to seek the right through a documented agreement or the court, especially after divorce.

The Prophet, peace and blessings be upon him, said:

"It is enough sin for a person to neglect those whom he supports."

Narrated by Abu Dawud, al-Nasa'i, and Ahmad, and authenticated by scholars.

What does child maintenance include?

Maintenance includes, according to the child's need, the custom of the country, and the father's condition:

1. Suitable food and drink.
2. Usual clothing according to the seasons and need.
3. Safe and suitable housing, or the child's share of housing costs.
4. Medical care, medicine, tests, and necessary health needs.
5. Basic education and what is normally needed for it, such as fees, books, supplies, and transportation.
6. The infant's needs, such as milk, diapers, and the like.
7. What a child with a disability or chronic illness needs of care, devices, and treatment.

The father is not required to pay what he cannot afford or what is considered extravagance. At the same time, he may not use economy as an excuse to prevent necessities or lower his children below the sufficiency he is able to provide. The measure is the statement of Allah: {Let the one of wealth spend from his wealth} [al-Talaq: 7], and the statement of the Prophet, peace and blessings be upon him: "according to what is reasonable."

How is the amount of maintenance estimated?

There is no single amount that suits every family. In estimating it, the following are considered:

1. The father's real income, wealth, and obligatory commitments.
2. The number of children, their ages, and their health and educational needs.
3. Prices and the usual standard of living in the country.
4. Any independent wealth the child owns, if present.
5. Avoiding extravagance and avoiding stinginess.

It is best for the parents to agree in writing on a clear recurring amount and on the method of paying exceptional expenses such as medical treatment and school fees. If they dispute, or one of them hides income, the court estimates maintenance after hearing the evidence.

Does child maintenance fall if the mother is wealthy or works?

The maintenance owed by an able father to his children does not fall merely because their mother works or owns wealth, because their maintenance is originally obligatory upon him. Whatever the mother spends from her own money voluntarily and kindly is rewarded, but she is not forced to carry the obligation of an able father.

If the father is truly unable, or the child has wealth that suffices him, or the father dies, the matter moves to other rulings related to maintenance by relatives and the child's wealth. The details differ, so the matter returns to the court or a trustworthy scholar.

Until when does child maintenance continue?

Maintenance continues for the young child who has no wealth, and it continues for the adult son who cannot earn because of illness, disability, or incapacity. As for the adult son who is able to earn enough for himself, his maintenance is not originally obligatory upon his father. Maintenance is obligatory for the adult daughter who is in need, has no wealth, and has no sufficient income until she marries, after which her maintenance moves to her husband.

As for an adult student devoted to study, and university costs or non-basic education, these have details related to his ability to earn, his need, the custom of the country, and the judicial system. Therefore, it is not correct to make one age a general ruling for all cases. Disputes return to the court, while remembering that the father's connection and kindness to his children do not end merely because they reach adulthood.

Nursing expenses and custody wages

If the divorced woman nurses her child after separation, she may be entitled to nursing wages if she qualifies for them, because Allah says: {Then if they nurse for you, give them their wages} [al-Talaq: 6]. The parents agree on the wage according to what is reasonable. If they cannot agree, the court considers the child's welfare and what removes harm.

As for wages for custody itself, this is an issue with details and scholarly disagreement according to the mother's situation, the type of divorce, the iddah, and whether there is someone willing to provide custody without payment. The majority of jurists held that the custodian is generally entitled to wages under its conditions. Custody wages should not be confused with child maintenance or nursing wages, and the amount and entitlement return to the court.

Second: Who is most entitled to custody of the child after divorce?

The mother is originally most entitled to custody of the young child if she is fit for custody and there is no valid impediment, because she is usually gentler with the child and more able to serve the child at this stage.

From Abdullah ibn Amr, may Allah be pleased with them both:

"A woman said: O Messenger of Allah, this son of mine had my womb as a vessel, my breast as a drink, and my lap as a shelter. His father divorced me and wants to take him away from me. The Messenger of Allah, peace and blessings be upon him, said to her: You are more entitled to him as long as you do not marry."

Narrated by Abu Dawud and Ahmad, and graded hasan by scholars.

It is also reported that Abu Bakr al-Siddiq, may Allah be pleased with him, ruled for the mother of Asim to have custody of her child when Umar, may Allah be pleased with him, disputed with her. The scholars received this report with acceptance. This shows the companions' understanding of the mother's priority in custody of a young child when her fitness is established.

However, custody is not a prize granted to the father or mother merely because of kinship. Its purpose is to preserve the child, the child's religion, body, mind, and character. If the custodian is neglectful, harmful, or unable to provide care, then whoever serves the child's welfare and removes harm is given priority.

What are the conditions for being entitled to custody?

Among the most important matters considered in the custodian are:

1. Sanity and the ability to care for the child.
2. Trustworthiness and protecting the child from harm and neglect.
3. Providing a safe and stable environment as much as possible.
4. Caring for the child's religion, prayer, character, and education.
5. Not exposing the child to violence, drugs, corruption, or someone who harms the child.
6. Not using custody to cut the child off from the other parent or relatives without right.

Neither parent is given priority if it is established that the child's remaining with that parent harms the child. Scholars stated that the child's choice or the priority of one parent is not acted upon if it leads to the child's corruption or loss, because the purpose of custody is the child's welfare, not the desires of adults.

Does the mother's custody fall if she remarries?

The hadith "You are more entitled to him as long as you do not marry" indicates that the mother's priority in custody is affected by her marriage to a man who is unrelated to the child, and this is the view of the majority of scholars. But this does not mean the father may take the child by force immediately upon her marriage contract. Determining who custody transfers to after the mother, whether there is an impediment or exception, and what serves the child's welfare are matters in which disagreement may occur and which need agreement or a court ruling.

There may be cases with a special ruling, such as the new husband being a mahram relative of the child, the holder of the right agreeing that the child remain with her, there being no better custodian, or it being established that moving the child would cause clear harm. Therefore, the specific case should be presented to the court, and the hadith should not be used as a pretext for abduction or harming the mother or child.

If the cause for the loss of custody ends, such as her marriage ending, her right returns according to the majority of scholars, with the known details.

Is there a specific age for custody, and is the child given a choice?

The jurists differed regarding the age at which custody of the young child ends, whether the boy or girl is given a choice, and which side is given priority after the age of discernment. There is no single agreed-upon age that fits every child and country.

It is reported that the Prophet, peace and blessings be upon him, gave a boy a choice between his parents, but scholars restricted choice to cases in which both parents are suitable and the choice serves the child's welfare. If the child chooses someone who neglects the child's education or prayer, or exposes the child to harm, that choice is not acted upon.

Therefore, the age of transfer and choice returns to the Islamic court or the recognized legal system, while considering the child's gender, age, safety, religion, education, and connection to both parents, not merely the desire of one parent.

The difference between custody and the father's guardianship

The child's being in the mother's custody does not cancel the child's lineage to the father, does not remove the father's maintenance obligation or responsibility for upbringing and protection, and does not permit excluding him from important decisions in the child's life. Likewise, the father's guardianship does not permit him to snatch the child from the entitled custodian or interfere in a way that harms the child.

Guardianship includes multiple rulings, including financial guardianship and guardianship in marriage, and it has conditions and details. As for daily decisions, they usually fall within the work of the custodian. Major decisions such as important medical treatment, education, and travel should be based on consultation and agreement or the ruling of the court.

The right of visitation and communication with the child

The child has a right to connection with both father and mother, and each parent has a right to visit and communicate with the child according to what is reasonable. The four schools of law agreed that neither parent may prevent the other from visiting the child in custody without a valid reason.

The parents should organize visitation times, overnight stays, holidays, and special occasions in a way that suits the child's age, schooling, nursing, and safety. It is not permissible to incite the child against the other parent, interrogate the child after every visit, or burden the child with carrying messages and problems.

If there is violence, abuse, addiction, or real danger, protection takes priority. Visitation may then be supervised or temporarily suspended by a competent authority, not merely by an accusation without evidence or by a unilateral retaliatory decision.

Traveling or relocating with the child

Neither the father nor the mother may travel with the child or move the child to a distant place with the intention of cutting the child off from the other parent or eliminating that parent's right. The jurists differed regarding the details of the custodian traveling with the child according to the type of travel, distance, safety, and the child's welfare.

The safest path is to obtain written approval from the other parent and comply with court rulings and travel laws. If relocation is necessary or disputed, the matter should be taken to court before travel, because unilateral action may expose the child to instability or fall under forbidden and punishable abduction.

May maintenance be tied to visitation?

The father may not say: I will not pay maintenance until I see my children. Likewise, the mother may not say: He will not see them until he pays. Maintenance is a right of the child, and visitation and connection are a separate right. One does not fall because of failure in the other.

Whoever prevents a right is compelled through reconciliation or the court. Injustice is not treated with a new injustice whose effects fall upon the child.

Practical steps for an agreement that preserves children's rights

1. Separate the marital dispute from each parent's relationship with the children.
2. Write down the amount of maintenance, its due date, and the method of payment.
3. Define who is responsible for medical care, education, and exceptional expenses.
4. Set a clear schedule for visitation, overnight stays, holidays, and occasions.
5. Agree on ways to communicate with the child without harmful monitoring.
6. Consult before important medical treatment, changing schools, or travel.
7. Do not distort the image of the other parent in front of the child.
8. Document the agreement with the relevant authority if that better preserves rights.
9. Seek help from a wise mediator when disagreement occurs, then go to court if reconciliation is not possible.

Allah says: {And consult together honorably} [al-Talaq: 6]. This is a principle for consultation and cooperation after separation regarding the child.

Common mistakes after divorce

1. Treating maintenance as money belonging to the mother that can be waived even if the child is harmed.
2. The father refusing maintenance because the child does not live with him.
3. Preventing visitation because maintenance is delayed.
4. Abducting the child, hiding the child, or traveling with the child without agreement or a ruling.
5. Telling the child the details of the dispute and damaging the image of one parent.
6. Making the child a messenger between father and mother.
7. Believing that the mother's custody cancels the father's guardianship and responsibility.
8. Believing that the mother's remarriage permits taking the child from her by force.
9. Treating all children the same in maintenance without considering differences in age and needs.
10. Making vague verbal agreements that cause the dispute to return every month.
11. Leaving the child to choose whomever he wishes, even if he chooses someone who neglects his religion or education.
12. Delaying the request for protection when there is violence or real danger.