Can One Parent Spy on Another to Get Custody?

Answered by Shaykh Irshaad Sedick

Question

Recently, I became a step-mom to two boys. Their mother is Muslim but was an addict and is not a good influence on the children. They have witnessed abuse in her home and possibly even experienced abuse. She frequently feeds them haram food, curses in front of them, and lies about what is halal/haram. 

Just yesterday, we dropped the children off at her home. And I noticed a wine bottle on top of her fridge. I’m not sure if it was some decoration or if she is back to drinking. Likely, if she’s drinking, she’s also using again. If this were the case, we’d have a better chance of getting full custody. 

Is it permissible to spy on her/hire a private investigator to gather a case against her?

Answer

In the name of Allah, the All-Merciful, the Especially Merciful.

The default ruling is that spying on a Muslim is unlawful. It may become lawful when the rights of others are being trespassed. Due to the emotional involvement of the parties in such cases, we would advise you to seek the arbitration of an objective, learned, and God-conscious third party (such as a local scholar) to assess the case in question before resorting to spying because of the strong prohibition against it in Sacred Law.

If, however, you genuinely fear for the physical well-being of the children, then do as much as is required to take them away from danger, but without overstepping the limits of Sacred Law or the rights of the other parent in question (except to the extent needed) and Allah knows best.

Spying

Allah (Most High) Says: “O you who have believed, avoid much [negative] assumption. Indeed, some assumption is a sin. And do not spy or backbite each other. Would one of you like to eat the flesh of his brother when dead? You would detest it. And fear Allah; indeed, Allah is accepting repentance and Merciful.” [Quran 49:12]

Commenting on this verse, Ibn Hajar Al-Haytami, a Shafi‘i scholar  (may  Allah have mercy on him), states that the verse mentioned above stresses that it is prohibited to search for the hidden secrets of others. It is also narrated on the authority of Abu Hurayra  (Allah be pleased with him) that the Prophet (Allah bless him and give him peace) forbade spying on, following or listening to comments about other people’s secrets. [Agreed Upon]

Simply surmising that someone is committing a sin or a violation of Sacred Law does not permit others to spy on them. Muslims are, in principle, innocent of sins and violations unless proven otherwise. It is also impermissible to spy on others even if there are indications that they are committing sins or violations unless it involves trespassing on the rights of others.

I pray this is of benefit and that Allah guides us all.

Given the considerations in such cases, we urge you to please consult reliable local scholars or counselors about the specifics of the situation. Jazakum Allah khayr. May Allah facilitate all ease and good for you.

[Shaykh] Irshaad Sedick
Checked and Approved by Shaykh Faraz Rabbani

Shaykh Irshaad Sedick was raised in South Africa in a traditional Muslim family. He graduated from Dar al-Ulum al-Arabiyyah al-Islamiyyah in Strand, Western Cape, under the guidance of the late world-renowned scholar, Shaykh Taha Karaan. 

Shaykh Irshaad received Ijaza from many luminaries of the Islamic world, including Shaykh Taha Karaan, Mawlana Yusuf Karaan, and Mawlana Abdul Hafeez Makki, among others.

He is the author of the text “The Musnad of Ahmad ibn Hanbal: A Hujjah or not?” He has served as the Director of the Discover Islam Centre and Al Jeem Foundation. For the last five years till present, he has served as the Khatib of Masjid Ar-Rashideen, Mowbray, Cape Town.

Shaykh Irshaad has thirteen years of teaching experience at some of the leading Islamic institutes in Cape Town). He is currently building an Islamic online learning and media platform called ‘Isnad Academy’ and pursuing his Master’s degree in the study of Islam at the University of Johannesburg. He has a keen interest in healthy living and fitness.