The Islamic perspective on child custody
The recent news that a mother has lost the right to have contact with her young child under UAE law is not the first to arise. The fact that the mother involved, Asfana Lachaux, is a British citizen is further cause to be troubled. The Foreign Office has issued a warning to expatriates living in the UAE that they may be subject to its Islamic laws and Sharia Courts regarding personal matters such as child custody.
It should be noted that the warning issued may be misleading as non-Muslim expatriates are given the right to apply the laws of their home countries.
Afsana Lachaux case
Afsana Lachaux is a British mother who lost custody of her son in Dubai to her ex-husband who is French.
She was given a suspended sentence on a kidnap charge for not attending an access meeting regarding her son and ex-husband.
What is Sharia?
The word ‘sharia’ may be defined as “path to the water hole” or “the clear path” and embodies the rules and laws which cover Islamic beliefs, moral teachings, practices and prohibitions for Muslims.
It is made up of both primary and secondary sources: namely the Qur’an, the sayings and practices of the Prophet Muhammad (Sunnah) and then the consensus of scholars and jurists (ijma), analogical deductions (qiyas) and the exercise of individual reasoning to come to a logical conclusion to solve a problem (ijtihad).
Although these terms are difficult to understand for the average lay person, it should be remembered that Islamic law is not monolithic or static where opinions and views vary amongst different scholars and schools of thought.
Islamic child custody
However, there are general guidelines which may be taken into account in order to better understand the stance that Islamic law takes regarding child custody when a couple are divorced.
The term ‘Hadana’, is the term that refers to the raising or bringing up of children which literally means to “embrace” or to “hug”.
The main conditions relating to a parent or guardian taking custody of a child are:
– Must be an adult of sound mind (i.e. sane)
– Must be of good character
– Must be capable of looking after the child
Some scholars state that the parent/guardian must be a Muslim, however there are different opinions therefore each case must be regarded in its individual circumstances.
There is a further obligation on the father to provide financial maintenance for a child.
So who gets custody?
Generally, it is preferred that the mother of the child/children would be the first choice to take custody of young children unless she is not fit or capable of looking after them. Like in English law, the child’s welfare is of paramount importance and this will be the main focal point for any decision relating to custody.
If the mother is not capable of taking custody then there is a general pecking order that begins from the child’s relatives:
- The maternal grandmother
- The paternal grandmother
- The maternal sisters
- The paternal sisters
- The maternal aunts
- The paternal aunts
- The maternal nieces
- Paternal nieces
If this fails then custody will fall in this order:
- The father
- The grandfathers
- The brothers
- The nephews
- The uncles
- The cousins
Even with this general pecking order, the interests of the child must be taken into account. If a child is old enough to make a decision as to who they wish to stay with then that decision will also apply.
The laws on child custody with the sharia are extremely varied and all depend on the individual circumstances of case. However, it is always advised that parents/guardians of a child keep good relations and are able to solve any disputes which may arise in an amicable manner so as to maintain the best interests of the child.
If you have any questions about child matters or need advice relating to family law then contact us. One of our specialist solicitors can advise you on all aspects of divorce and child matters.
Guest post by Maria Javed. Maria is an intern at Grayfords and has recently graduated from BPP Law School having completed the Legal Practice Course. She is particularly interested in Family Law and Islamic issues.