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Custody Of A Child

Answered by Ustadh Tabraze Azam

Question: Assalam u Alaikum, I have been a widow for 2 years. In the Hanafi fiqh, if I decide to marry again to a non-mahram, what custody and responsibilities will I have over my son and daughter? My father-in-law has stated he is the wali of the children, what age is this till?

Answer: Wa alaikum assalam wa rahmatullah

In cases of marital separation by death or divorce, the custody of young children normally immediately transfers to the mother of the children.

If the child is a boy, the mother has a right to keep him until he is able take care of his own needs, such as eating, drinking, and using the bathroom without assistance. This has been estimated to be around seven lunars years of age. And if the child is a girl, the mother has a right to keep her until she begins becomes an adult according to the Sacred Law (shari‘a). Thereafter, the custody rights transfer to the father. In the absence of a father, the next in line is the paternal grandfather, the brother, and finally the paternal uncle. This is the upshot, but there are, of course, details.

Child Custody in Cases of Remarriage

Abu Dawud reported a tradition (hadith) in which a lady came to the Prophet (Allah bless him and give him peace) and said, “O Messenger of Allah! My womb was a container for this son of mine, my bosom was a source of drink for him and my lap was a place of security and protection. His father divorced me and he wants to take him away from me.” So the Messenger of Allah (Allah bless him and give him peace) said, “You have a greater right to him as long as you do not marry.”

If a mother remarries somebody who is not a blood relative (mahram) of the child, she loses her right to custody. The reason for this is that her new marriage may busy her from giving sufficient attention to raising the children, and even if it doesn’t, it is assumed as such. Accordingly, the right transfers to the maternal grandmother and failing that, the paternal grandmother. Any time there is a death or a person is unfit or unable to look after the child, the right transfers to the next person. When the right is with other than a mother, both girls and boys have the same custody period.

Whenever the child becomes an adult, custody rights no longer apply. Hence, the children may choose where to live at this point. Similarly, and whenever the matter is taken to court, the verdict is going to be binding because it now becomes a procedural issue which one is normally bound to uphold. If this occurs in a non-Muslim country, the law of the land would need to respect. Hence, if the judge rules in favor of the mother, she would have the right to keep the children. Moreover, it is possible for somebody who has a right to forgo it, and thereafter, suitable living arrangements with the mother could potentially be organized.

Guardianship of Young Children

As for guardianship (wilaya), it remains in the hands of the paternal grandfather, as long as he is alive, who takes the place of his son, the father, normally until adulthood. The job of the guardian is to ensure that the child gets an education, medical attention, when and if required, and that his money and possessions are safeguarded. It doesn’t mean that he gets custody rights immediately because that is a separate set of laws.

(Qadri Pasha, al-Ahkam al-Shar‘iyya fi’l Ahwal al-Shakhsiyya; al-Fatawa al-Hindiyya; Kurdi, al-Ahwal al-Shakhsiyya)

Please also see: Who Gets Custody of the Children After a Divorce?

And Allah Most High knows best

[Ustadh] Tabraze Azam

Checked and Approved by Shaykh Faraz Rabbani

Ustadh Tabraze Azam holds a BSc in Computer Science from the University of Leicester, where he also served as the President of the Islamic Society. He memorized the entire Qur’an in his hometown of Ipswich at the tender age of sixteen, and has since studied the Islamic Sciences in traditional settings in the UK, Jordan, and Turkey. He is currently pursuing advanced studies in Jordan, where he is presently based on his family.

What Is the Waiting Period for a Widow?

Answered by Shaykh Jamir Meah

Question: Assalam alaykum

We have been told that our mother cannot go out of the house during the waiting period, nor can she be seen by anyone who is not her mahram. How true is this?

Answer: Assalam alaykum,

Jazakum Allah khayr for your question. Our deepest condolences to your family, especially your mother, during this time of bereavement. May Allah lighten your grief and grant you all ease. May Allah also reward you for desiring to find out the proper course of action.

Allah has given us guidance for all occasions. In regards the waiting period, He Most High tells us in the Qur’an (2:234), “If any of you die and leave widows behind, they shall wait concerning themselves four months and ten days.”

For this reason, the schools of law state that the ‘idda period for a widow is four months and ten days, irrespective of whether the marriage was consummated or not, or whether the widow is past child bearing age or not. The exception to this is a widow who is pregnant, in which case the ‘idda period terminates upon the birth of the child.

The widow must stay in her house during this period. The exception is if she has a need to go out and has no one who can fulfill her needs. Needs include, to buy food or other essentials, or to go out to work if she has no one that financially provides for her.

She is also permitted to visit a neighbor who lives very close by in the evenings in order to have female company, on the condition that

1. She stays the normal amount of time she would normally stay at the neighbor’s house
2. She does not stay there for the majority of the night
3. She returns to and sleeps at home

(Fath al-Mu’in, Yaqut al-Nafis)

If the above proves difficult, one may follow the Maliki position, which permits a woman in her waiting period to leave the house during the daytime, even without a need, such as for social reasons and events, whilst returning in the evening. For more specific details on the Maliki opinion, you may refer to this answer here.

I hope this clarifies things insha Allah. May Allah grant your mother’s husband abundant mercy, and bring comfort to your hearts.

Warmest salams,

[Shaykh] Jamir Meah

Shaykh Jamir Meah grew up in Hampstead, London. In 2007, he traveled to Tarim, Yemen, where he spent nine years studying the Islamic sciences on a one-to-one basis under the foremost scholars of the Ribaat, Tarim, with a main specialization and focus on Shafi’i fiqh. In early 2016, he moved to Amman, Jordan, where he continues advanced studies in a range of Islamic sciences, as well as teaching. Jamir is a qualified homeopath.

Can I Marry to My Mother’s Brother’s Widow?

Answered by Ustadh Tabraze Azam

Question: Assalam alaykum

Can I marry to my mother’s brother’s widow?

I don’t have any blood relation with her.

Answer: Assalamu alaikum wa rahmatullah,

Yes, it would be permitted to marry your mother’s brother’s widow.

This is on condition that you are not already married to a blood relative, such as a niece, of the lady in question. If that is the case, it would be impermissible because the Prophet (Allah bless him and give him peace) interdicted marrying a lady and her aunt. [Tirmidhi; Abu Dawud]

Similary, you cannot marry this lady during her waiting period (`idda). You can see the attached answers below regarding this. And further, please try to get some elders involved so that you don’t make any decisions which cause issues in your family.

[Maydani, al-Lubab fi Sharh al-Kitab (412)]

Please also see: Who is Mahram? and: Did the Prophet (Peace Be Upon Him) Discourage Marrying Cousins? and: Basic Rulings and Length of the Waiting Period (`idda)

And Allah Most High alone knows best.

wassalam,

[Ustadh] Tabraze Azam

Checked and Approved by Shaykh Faraz Rabbani

Ustadh Tabraze Azam holds a BSc in Computer Science from the University of Leicester, where he also served as the President of the Islamic Society. He memorised the entire Qur’an in his hometown of Ipswich at the tender age of sixteen, and has since studied the Islamic Sciences in traditional settings in the UK, Jordan and Turkey. He is currently pursuing advanced studies in Jordan, where he is presently based with his family.

My Husband Is Dead. Should I Remarry?

Answered by Ustadh Salman Younas

Question: One and half years have passed since my husband passed away. I’m in my mid-30’s and have 3 sons. I have no financial issues and no other family issues so should I remarry or not?

Answer:
assalamu alaykum

The decision to remarry or not is completely up to you. No one can make the decision for you. You should look at your own personal situation, the needs of your children, and other relevant considerations to see what is the best course of action for you and your family. You may also consult people whose advice and insight you value.

Here, I would recommend performing the istikhara prayer, as well, which you can read more about on the following link:

Istikhara: The Prayer of Seeking Guidance

Salman

Checked & Approved by Shaykh Faraz Rabbani

Imam Khalid Latif on “Losing Someone Close To You”

There is a narration that is found in the Islamic tradition in which a companion of the Prophet Muhammad, peace be upon him, named Abdur Rahman ibn Awf speaks about visiting the Prophet’s infant son, Ibrahim. In this particular narration, he mentions that the Prophet kisses Ibrahim and takes him close, and then later begins to shed tears because Ibrahim is in his last breaths. Abdur Rahman asks about these tears to which the Prophet responds “Oh Ibn Awf, this is mercy.”

The Prophet then cries more and says: “The eyes are shedding tears, and the heart is grieved, and we will not say except what pleases our Lord. Oh Ibrahim! Indeed we are grieved by your separation.”

Losing someone close to us is always a hard situation to deal with. Just as hard is also knowing how to help and support someone who has lost someone close to their hearts. The pain of that separation causes even the hardest of hearts to tremble and puts us in a place where we at times don’t know what to do. The reality of this life being something that is finite comes as a secondary thought as we begin to deal with the aftermath of a heaviness placed upon our hearts. How do I cope or help someone to cope with this loss?

Primarily we want to understand that feeling grief at the loss of loved one is not somehow an absence of faith or a deficiency of it. Faith can actually become a potential source of making sense of the loss, and we lose out on it if we tell ourselves getting sad is somehow wrong. For the Muslims who are reading this, the Prophet Muhammad cried when his son died. None of us would say he is lacking in faith. We shouldn’t tell ourselves or each other that we somehow are lacking faith simply because we are responding the way most humans would respond.

There is no set amount of time that one has to reconcile the loss of a loved one. One can very subjectively make a determination as to how much time they need and telling yourself or someone else that because a certain number of days have passed they should now move forward doesn’t necessarily make sense. Although time is an important factor, reconciliation isn’t purely a product of time and making yourself or someone else feel as if they are doing something problematic by taking the time they need isn’t going to help the situation.

Moving on also does not entail completely forgetting. How we remember becomes key as does what we do through that remembrances. Our hearts will respond to things that remind them of what they hold as beloved. The Prophet Muhammad deeply loved his first wife Khadijah. The year in which she, as well as the Prophet’s uncle Abu Talib, passes away becomes known as the “Year of Grief.” Khadijah definitely had a special place in the Prophet’s heart and his “moving on” did not entail forgetting her. On one instance after her passing, he is sitting with a group of his companions when someone brings to him a necklace. He holds the necklace and recognizes it as once belonging to his wife Khadijah and begins to cry as he remembers her.

He builds upon this remembrance through his action. After Khadijah’s passing, the Prophet would regularly send gifts to her family and friends. He would speak of her and mention how important she was to him. His moving on did not include forgetting entirely. Our moving on doesn’t have to either.

We can remember those that we have lost through actions undertaken through their remembrance; coming together to remember and doing good in their memory. Islam teaches its practitioner that even after a person has passed, those who remain in this world can bring benefit to them by performance of deeds on their behalf. I can give of myself with the sole intention that the person I have lost should be the benefactor of any reward from my actions and in the process I still maintain a relationship with the one I love while at the same time bringing their presence into the lives of others.

Losing someone close to you can definitely be tough. Whether it’s a parent, a child, a friend, or really anyone, that loss hurts. You don’t have to deny that pain and you can take your time to deal with it. But just keep in mind that although the person is not physically there, they can still be present in your life and the lives of many others, based off of how you remember them.

Imam Khalid LatifImam Khalid Latif is a University Chaplain for New York University, Executive Director of the Islamic Center at NYU, and a Chaplain for the NYPD. He is also the co-founder of Honest Chops, the first-ever all-natural/organic halal butcher in NYC, the Muslim Wedding Service, an agency specializing in providing charismatic and inspirational marriage officiants for wedding ceremonies.

 

Resources for Seekers:

The Loss of a Child: Seeking & Turning to Allah in Difficult Times
Basic Rulings and Length of the Waiting Period (`idda)
The Ruling on Women Visiting Graves and Etiquettes of Visiting
How Can I Deal with Several Pregnancy Losses?
How Do We Deal With the Death of a Loved One?
How To Benefit from Remembering Death?
How to Deal With a Non-Muslim Relative’s Death
How To Overcome My Fear of Death?
The Soul’s Journey after Death and The Day of Judgement
Dealing With Anxiety About Death and Dying
Dealing with Death: Inward & Outward Manners
How Do I Deal With Excessive Fear Of Death?