Fostering children in case their mother remarries
Fatwa No: 181975

Question

as-salāmu`alaykum wa rahmatu l-lāhi wa barakātuh... I got a query for you from a sister... She got divorced and got a child in her ex husband. Now she wish to get married with someone else. But as Islamic shariah, if she marries another man, the right of custody of child belong to father of the child.. Isn't it so? Now she doesn't want to give her child to her ex husband as they got income from wine business and she don't wish her child grew up in that atmosphere. She also don't want any financial help from the child's father for his needs... Can she get married to someone elseand keep the child in custody at the same time out of dislike that she don't want her son grow up in haram business earning family?

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, sallallaahu ‘alayhi wa sallam, is His slave and Messenger.

If the mother remarries, she loses the right of fostering her children, and the fostering in this case moves to other women who are more deserving of fostering the children after her according to the order that is mentioned by the jurists  may  Allaah  have  mercy  upon  them and which we have already clarified in Fatwa 84618. Therefore, saying that the fostering moves to the father is not correct.

Yes, if the child reaches the age of seven, he/she is given the choice between his/her two parents, and so, he/she stays with whomever he/she chooses. However, if the fosterer is dissolute, then he/she loses the right of fostering the children according to the most preponderant opinion of the jurists  may  Allaah  have  mercy  upon  them.

In addition to this, some scholars have conditioned that the father must have a female who is suitable for fostering so that he would deserve the fostering. For more benefit, please refer to Fataawa 90461 and 132638.

Finally, it should be noted that fostering and similar issues should be referred to an Islamic court or to an authority that may act on its behalf, as the matter may need some clarifications from the people involved. Also, the ruling of the judge is binding to both parties in issues of Ijtihaad (a juristic opinion on matters which are not specified in the Quran and the Sunnah). For more benefit, please refer to Fatwa 89707.

Allaah Knows best.

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