Posted by: TheMajlis

The custody mas’alah is grossly misunderstood by even men of learning. When there is a separation between husband and wife, two distinct issues develop. The one is custodianship and the other is guardianship of the minor children.

Until a certain age, the mother retains custody of the minors. But the father at all times remains the legal guardian of his children. Custodianship should not be confused with guardianship.

CUSTODIAN
The mother as the custodian of her minor children acts in the capacity of a kind, loving, benevolent servant who sees to the day to day needs of the children. The father, being the guardian, makes the decision pertaining to all matters related to the upbringing of the children. It is his right and choice to dictate the terms of the upbringing, ta’leem and tarbiyat of the children.

ACCESS
The mother has absolutely no right to debar the father from access to his children. The access and visitation ‘rights’ decreed by a non-Muslim court have no validity in the Shariah.

The father may not be restricted from communicating with his children. He has the right of daily access and communication. There is no time frame to regulate the children’s association with their father.

For most part of the time, the children are with the mother during the tenure of her custody. It is unlawful Islamically for the mother to spitefully restrict the father’s unfettered right of visitation.

VISITATION
But visitation does not mean that the father has the right to see the children in the home of his ex-wife. A suitable alternative venue should be arranged. In fact, the father should himself not drive up to the home of his ex-wife, hoot and wait for the children. It is dishonourable to do so, and it is in violation of the rules of Hijaab. An intelligent and an honourable arrangement should be made to pick-up and drop the children.

FISQ
The only factor which disrupts this Shar’i arrangement is the fisq and fujoor (immorality) of the father. The same applies to the mother. This factor has a bearing on custody, access and visitation rights.