When does a divorced woman have custody of her children?

I know a sister who has divorced. She and her exhave two children, who
haven't reached the age of 7 years old. We have heard, that in case
she remarries, the father automatically will have the custody of the
children. I would like to know if there are cases in which the mother
does have the right to keep the children anyway.
Praise be to Allaah.
The mother has more right to her children – if they are below the age
of discernment – that her husband, so long as she does not get
married. If she gets married then the children go back to theirfather.
Once the children reach the age of discernment, they should be given
thechoice between their parents.
This applies if the father and mother are equal in terms of religious
commitment and good character. If one of themis of bad character and
not very religiously committed, he or she should not be given the
right of custody, becausewhat counts is what is inthe best interests
of the child, and his interests cannot be served with one who will
neglect thechild's rights. This is what is indicated by the hadeeths
and this is what was mentioned in fatwas by the most prominent
scholars.
It was narrated from 'Abd-Allah ibn 'Amr (may Allah be pleased with
him) that the Prophet (blessings and peace of Allah be upon him) said
to a woman who sought custody of her child fromher husband: "You are
more entitled to him so long as you do not get married." Narrated by
Abu Dawood in his Sunan (2276); classed as hasan by Shaykh al-Albaani
in al-Silsilah al-Saheehah (368).
Ibn al-Qayyim (may Allah have mercy on him) said:
I heard our shaykh, may Allah have mercy on him – meaning, Ibn Taymiyah– say:
Two parents referred a dispute concerning a child to one of the
judges, who gave him the choice between his parents and he chose
hisfather. His mother said to him: Ask him why he chose his father. So
he asked him and he said: My mother sends me every day to the school
and the teacher hits me, but my father lets me play with other
children.So the judge ruled that he should stay with his mother and
said: You have more right to him.
Our shaykh said: If one of the parents fails to teach the child and
instruct him in what Allah has enjoined upon him, then he is a sinner
and he has no right to guardianship over him. The one who does not
fulfil the duties of his guardianship has no right to guardianship. He
should be dismissed and another person should be given guardianship,
who will do what is required, or he should be put with someone else
who will do what is required. The aim is obedience to Allahand His
Messenger only.
And he said: If it so happened that the father marries a woman who
does not take care of his daughter's interests or look after her, and
her mother will take better care of her than this wife, then custody
in this case should definitely go to the mother.
And he said: It should be noted that there was no general text from
the Lawgiver giving precedence to either of the parents in absolute
terms, and the child should not be given the choice between his
parents in all cases. The scholars are unanimously agreed that neither
of them should be singled out in all cases; rather one whois an
evildoer and heedless should not be given precedence over one who is
righteous and of good character.
And Allah knows best.
Zaad al-Ma'aad, 5/475, 476
Shaykh Muhammad ibn Ibraaheem (may Allah have mercy on him) said:
The custody of the young girl goes to her mother so long as she does
not get married or until the girl reaches the age of seven years, when
custody passes to her father so long as she will not be harmed by
staying with her father.
In the case of an older girl, custody goes to her father so long as
she willnot be harmed by staying with her father's new wife.
Fataawa al-Mar'ah al-Muslimah, 2/874
And Allah knows best.

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And Allah Knows the Best!

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Published by :->
M NajimudeeN Bsc- INDIA

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