Atouzine_
29-01-2010, 21:07
Stel je voor er is een kind ouders zijn gescheiden het kind blijft bij zijn moeder de vader is slecht en wil niks met het kind te maken hebben. Mag je dan in een testament in de Islam opstellen dat het kind bij overlijden van zijn moeder naar zijn tante of oma gaat van moederskant etc?
Lady_Soumie
29-01-2010, 23:33
Ben wel benieuwd naar het antwoord. UP
sammietammie
30-01-2010, 00:50
Custody of children for a woman whose husband has died and she wants to re-marry
What is the ruling concerning the children if the husband dies and the wife wants to live on her own, not with her in-laws. And in case she wanted to turn back to her home country. Do the in-laws have the right to take the responsibility for raising the children? Is the mother allowed to keep her children even if she may want to get married one day again?.
Praise be to Allaah.
Firstly:
Custody of young children means looking after them, raising them, taking care of their interests and protecting them from that which may harm or upset them.
The fuqaha’ are unanimously agreed that the mother is most entitled to custody of her children before they reach the age of discernment, if she and her husband get divorced or if he dies.
In al-Mawsoo’ah al-Fiqhiyyah (17/301, 302) it says:
Custody of children belongs to both parents, if they are married. If they separate, then custody belongs to the child’s mother, according to scholarly consensus, because of the report of a woman who came to the Messenger of Allaah (peace and blessings of Allaah be upon him) and said: O Messenger of Allaah, this son of mine – my womb was a vessel for him, my lap was a haven for him and my breasts gave him milk, but his father says that he is going to take him away from me. He said: “You have more right to him so long as you do not get married.” End quote.
With regard to custody, the best interests of the child must be taken into account. The one who is most entitled to custody may be an evildoer or unable to raise the child and look after his interests, or he may be heedless and neglect the child, in which case custody should be passed to the next person. Ibn al-Qayyim (may Allaah have mercy on him) said:
The hadeeth – i.e., the hadeeth “You have more right to him so long as you do not get married” – indicates that if the parents separate and they have a child, then the mother is more entitled to custody than the father, so long as there is nothing about the mother which would prevent her having precedence, or if the child is able to make the choice himself. This is something concerning which no difference of opinion is known.
Zaad al-Mustaqni’ (5/435)
Shaykh Muhammad ibn Saalih al-‘Uthaymeen (may Allaah have mercy on him) said:
It should be noted that with regard to this matter, attention must be paid to the child above all else. If going with one of them or staying with one of them will cause harm to his religious or worldly interests, then no approval should be given to one who will not protect him or take care of his interests, because the basic purpose of custody is to protect the child from that which will harm him, and to look after his interests.
Al-Sharh al-Mumti’ (13/545).
See also the answer to question no. 20473.
If the mother re-marries, she forfeits her right to custody of her children, according to scholarly consensus.
This has been explained in the answer to question no. 20705.
The scholars differed concerning the definition of the one to whom the right to custody is passed after the mother. The majority were of the view that it is passed to the mother’s mother, but Shaykh al-Islam Ibn Taymiyah and his student Ibn al-Qayyim (may Allaah have mercy on them both) disagreed with them and said that it is passed to the father, but if they are both equal in terms of closeness to the child, then the relatives on the father’s side are given precedence, and the father’s mother is given precedence over the mother’s mother, and the paternal aunt is given precedence over the maternal aunt, and so on.
He (may Allaah have mercy on him) said:
Unlike the small child, as the mother is better for him than the father, because women are kinder to small children, and have more experience in feeding them and carrying them, and are more patient in doing that, and are more compassionate towards them. So she is more able, more experienced, more compassionate and more patient in this regard, so the mother is singled out in sharee’ah with regard to custody of a child who has not reached the age of discernment.
But there remains a point to be examined: did the Lawgiver single them out because the closeness of the mother takes precedence over the closeness of the father with regard to custody, or is it only because women are more able to achieve the purpose of custody than men? There are two scholarly views concerning this, and the issue has to do with which of two counterparts – such as the mother’s mother or the father’s mother, the half-sister on the mother’s side or the half-sister on the father’s side, the paternal aunt or the maternal aunt, and so on – has more right to custody. There are two opinions concerning this, both of which were narrated from Ahmad. The more correct of the two opinions is that the women on the father’s side are given precedence. This is what was mentioned by al-Kharaqi in his Mukhtasar concerning the paternal aunt and maternal aunt. Based on this, the father’s mother is given precedence over the mother’s mother, and the half-sister on the father’s side is given precedence over the half-sister on the mother’s side, and the paternal aunt is given precedence over the maternal aunt, as stated above. The father’s male relatives are given precedence over the mother’s relatives, and a half-brother on the father’s side has more right than a half-brother on the mother’s side, and the paternal uncle has more right than the maternal uncle.
The Lawgiver did not give precedence to the mother’s relatives in any ruling, so the one who gives them precedence with regard to custody has gone against the basic rulings of sharee’ah. But giving precedence to the mother because she is a woman, and women are given precedence over men with regard to custody, this implies that the paternal grandmother is given precedence over the grandfather, just as the mother is given precedence over the father, and his sisters are given precedence over his brothers, and his paternal aunts over his paternal uncles, and his maternal aunts over his maternal uncles. This is the correct analogy and the sound view. But giving precedence to the mother’s female relatives over the father’s female relatives is contrary to the basic rulings and reason.
Majmoo’ al-Fataawa (34/122, 123)
With regard to your travelling with your children, in the answer to question no. 21612 it says that if they will not be harmed by that travelling, then you are still entitled to custody and it is not waived because of that travelling.
To sum up the above:
1. You have more right to your children than your husband’s family with regard to custody, care and raising them.
2. Your right to custody of your children is waived if you get married, and the children should move to be with their father’s mother. If that is not possible then they should go to their mother’s mother.
3. There is nothing wrong with your travelling with your children if this travel will not cause them any harm.
What we advise you to do is:
Raise your children well and take good care of them; treat your husband’s family well and do not cut off ties with them or cut your children off from them. Think seriously about marrying, because it will keep you chaste and will not sever your ties with your children, and Allaah may bless you with other good and righteous children.
And Allaah knows best.
Islam Q&A
sammietammie
30-01-2010, 00:52
Who has more right to custody in Islam?
After a marriage that lasted for a few years, a man divorced his wife and tried to take the child from her. She is asking who has more right to custody of the child, her or her ex-husband? Especially since she is going to travel to live with her family in another city.
Praise be to Allaah.
Women have more right to custody of children than men; in principle custody belongs to them, because they are more compassionate and more kind, and they know better how to raise small children, and they are more patient in dealing with the difficulties involved. The mother has more right to custody of her child, whether it is a boy or a girl, so long as she does not re-marry and so long as she meets the conditions of custody. This is according to scholarly consensus.
The conditions of custody are: being accountable (i.e., an adult of sound mind etc.), being free (as opposed to being a slave), being of good character, being a Muslim if the child concerned is a Muslim, and being able to fulfil all obligations towards the child. The mother should not be married to a person who is a stranger (i.e., not related) to the child. If one of these conditions is not fulfilled and there is an impediment such as insanity or having remarried, etc., the woman forfeits the right to custody, but if that impediment is removed, then the right to custody is restored. But it is best to pay attention to the interests of the child, because his rights come first.
The period of custody lasts until the age of discretion and independence, i.e., until the child is able to discern what is what and is independent in the sense that he can eat by himself, drink by himself, and clean himself after using the toilet, etc.
When the child reaches this age, the period of custody ends, whether the child is a boy or a girl. That is usually at the age of seven or eight.
With regard to the effect of travelling on transferring custody, if the parents have separated and are disputing custody, any of the following scenarios may apply to their travelling:
1 – If one of the parents wants to travel without moving, i.e., he or she intends to come back, then the parent who is staying put has more right to the child.
2 – If one of them wants to travel for the purpose of settling there, and the new city or the route is dangerous, then the parent who is staying put has more right to the child.
3 – If one of them wants to move and settle within the same city, and the city and the route is safe,the father has right to the child than the mother, regardless of whether the one who is moving is the father or the mother.
4 – If both parents want to travel to the same place, then the mother should retain custody.
5 – If the place is nearby so that the father and child may see one another every day, then the mother should retain custody.
When the child reaches the age of independence, the period of custody comes to an end, and the period of kafaalah or sponsorship of the young begins, which lasts until the child reaches adolescence or in the case of a girls, starts her periods. Then the period of sponsorship ends and the child is free to make his own choices.
Women’s rights to sponsor children. It appears from the comments of the fuqaha’ that women have the right to sponsor children in general, and that mothers and grandmothers in particular have this right. But the scholars differed as to who has more right to sponsorship if the parents are in dispute and are both qualified to sponsor the child. The Maalikis and Zaahiris think that the mother has more right to sponsorship of the child, whether it is a boy or a girl. The Hanbalis think that boys should be given a choice, but the father has more right in the case of a girl. The Hanafis think that the father has more right in the case of a boy and the mother has more right in the case of a girl. Perhaps the correct view is that the child should be given a choice if the parents are disputing and they both fulfil the conditions for sponsorship.
From Wilaayat al-Mar’ah fi’l-Fiqh al-Islami, p. 692
sammietammie
30-01-2010, 00:54
With regard to custody – as defined by a number of scholars – it means taking care of the one who has not reached the age of discernment and cannot live independently, and raising him in accordance with his best interests and protecting him from anything that may harm him. Rawdat al-Taalibeen (9/98). What is meant is taking care of the small child and looking after him. So the main issue of custody is taking care of the interests of the child. Hence if the father refuses to undertake this duty towards the child, which includes maintenance, then he is sinning, and forfeits his right to custody. It says in al-Rawdah al-Murbi’: The child should not stay with one who does not protect him and take care of him, because that is contrary to the purpose of custody. Al-Rawd al-Murbi’ (3/251).
Ibn Qudaamah al-Maqdisi said: Custody is aimed at looking after the child, so it should not be given in a way that will be detrimental to his welfare and his religious commitment. Al-Mughni (8/190).
Ibn al-Qayyim said: If we show precedence to one of the parents, we must pay attention to how he looks after the child. Hence Maalik and al-Layth said: If the mother is not in a safe place or she is not of good character, then the father has the right to take the child from her. Similarly in the well known report from him, Imam Ahmad said that it depends on his ability to take care of the child. If he is careless or unable to do that, or is not of good character, or he is immorall and the mother is different from him, then she undoubtedly has more right to take the daughter. Our Shaykh said: If one of the parents fails to educate the boy and raise him in accordance with Islamic teachings, then he is sinning and has no guardianship (wilaayah) over him. Anyone who does not do his duties as a guardian has no guardianship. He should either be dismissed as the guardian and replaced by someone who will do what is required, or someone else should be appointed with him who will do what is required along with him, because the aim is to obey Allaah and His Messenger according to one’s ability. … If the father marries a woman who does not take care of his daughter, and her mother is better able to take care of her than this co-wife, then custody should definitely be given to the mother. Zaad al-Ma’aad (5/424).
Shaykh ‘Abd al-Rahmaan al-Sa’di said: But if one of them neglects their duties with regard to custody and care of the child, then he forfeits his guardianship and the other should be appointed instead. Al-Fataawa al-Sa’diyyah (p. 535).
Based on this, if the father refuses to spend on his children’s maintenance, he forfeits the right to custody, even if his refusal is aimed at hurting the mother. This indicates that he is not to be trusted to take care of his children’s interests. The mother has the right to ask him in court for maintenance of his children.
And Allaah knows best.
Islam Q&A
Atouzine_
30-01-2010, 14:51
Shokran voor het plaatsen tammie. Als iemand nog meer hadiths heeft plaatsen aub.
sammietammie
30-01-2010, 14:58
Citaat door Atouzine_:Shokran voor het plaatsen tammie. Als iemand nog meer hadiths heeft plaatsen aub.
Geen dank, het geeft niet echt antwoord op je vraag mbt een testament..maar het maakt wel duidelijk dat het welzijn van een kind op de eerste plaatst komt, met andere woorden als de vader het kind zou verwaarlozen dan zou het niet naar de vader toegewezen moeten worden..
Je kan verder zoeken op http://www.islamqa.com