Who Gets Custody of My Daughters If I Seek Khula’?

Answered by Mawlana Ilyas Patel

Question

If I seek khula‘ after years of abuse and hardship, who has custody of our 8- and 13-year-old daughters under Islamic Law?

Answer

In the Name of Allah, the Most Merciful and Compassionate

I pray you are in good faith and health. Thank you for your question. It is sad to know you have endured so many years of hardship. You will undoubtedly be greatly rewarded for your resilience.

Custody (hadana) cases prioritize the child’s best interests—this principle is fundamental in Islamic Law, even predating most modern legal systems worldwide.

Under normal circumstances, according to the Hanafi School, the mother (or, if she remarries or dies, the maternal grandmother, then the paternal grandmother) gets legal custody of

• a male child until the child is capable of taking care of his own basic bodily functions and needs, like eating, dressing, and cleaning himself, which, for legal purposes, may be approximated at seven years of age,
• a female child until she reaches puberty, which, for legal purposes, may begin at the age of nine years or any point thereafter, up until the age of fifteen.

Thereafter, in each case, legal custody of the child is transferred to the father.

[Maydani, al-Lubab Fi Sharh al-Kitab; Qadri Pasha, al-Ahkam al-Shar‘iyya fi al-Ahwal al-Shakhsiyya]

Please read this detailed answer.

Dispute Over Custody

Resolving disagreements amicably and avoiding court involvement is vital. In summary, parents should prioritize their child’s interests over their own. Understanding the child’s needs is also essential. Collaborate to develop a schedule that ensures the child receives appropriate parenting from both the mother and father. The child’s well-being and future are critical and at stake.

In summary, separating parents can mutually consider what might be best for the child if circumstances require it.

Given the considerations in such cases, we urge you to consult reliable local scholars or counselors about the situation’s specifics.

May Allah Most High destine what is good (khayr) for you. Pray istikhara for guidance and need regularly on this issue, and ask Allah Most High to destine what is good for you.

I would like you to go through the valuable answers and links below. In sha Allah, you will receive guidance and direction.

Related

• Custody of a Child
• What Are the Obligations of a Father Who Does Not Have Custody of His Children? 
• Child Custody
• Sharee Council
• The Fiqh Council Birmingham (FCB)
• Services – Birmingham Central Mosque

Why not begin your search for knowledge by signing up for a course on SeekersAcademy (seekersguidance.org), like from the Islamic Studies Curriculum (seekersguidance.org), building your way up, doing each course?

I pray this helps with your question.
Wassalam,
[Mawlana] Ilyas Patel
Checked and Approved by Shaykh Faraz Rabbani

Mawlana Ilyas Patel has received a traditional education in various countries. He started his schooling in the UK and completed his hifz of the Quran in India. After that, he joined an Islamic seminary in the UK, where he studied secular and Aalimiyya sciences. Later, he traveled to Karachi, Pakistan, and other Middle Eastern countries to further his education. Mawlana has served as an Imam in the Republic of Ireland for several years and taught the Quran and other Islamic sciences to both children and adults. He also worked as a teacher and librarian at a local Islamic seminary in the UK for 12 years. Presently, he lives in the UK with his wife and is interested in books and gardening