Child custody and guardianship are the legal terms used to describe the legal and practical relationship between a parent and child, including e.g. the right of the parent to make decisions for the child and the duty to care for it; it comes into question in proceedings involving dissolution of marriage, annulment and other legal proceedings where the residence and care of children are concerned. In most jurisdictions child custody is determined by the best interests of the child standard.

In many proceedings to dissolve a marriage, issues relating to child custody generate the most acrimonious disputes. It is not uncommon for one parent to accuse the other of trying to turn the child(ren) against him or her, or of disrupting the parent's communication with the child(ren). In extreme cases, parents have taken children out of the jurisdiction, in violation of court orders, so as to frustrate the other parent's custody or visitation rights.

Legal issues relative to child custody rights

U.S states

New York State

Where there are children of the marriage residing in New York State and under the age of 18, a demand for custody is mandatory in divorce actions. Where the children reside outside New York State custody may not be determined, except in some instances by stipulation. Custody may not be awarded to a person other than the father or mother, except under unusual circumstances which require a hearing. Children under the age of 21 must be supported by both parents to the extent that they are able to support the children under the provisions of the Child Support Standards Act.

See paternity for discussion of judicial recognition of filiation which may be necessary before custody or support may be determined.

etc

European jurisdictions

General issues

Recognition throughout Europe of child custody orders is provided for by Council Regulation 1347/2000 (http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=32000R1347&model=guichett).

Scotland

In Scotland, issues relative to parental reponsibilities are dealt with under the Children (Scotland) Act 1995, which provides for the making of 'residence' (custody) and 'contact' (access) orders. These may be applied for by anyone with an interest in a child, not merely parents ( reference (http://www.journalonline.co.uk/article.aspx?id=1001018)). The test in all cases is, under the statute, the best interest of the child.

England and Wales

Islam in England & Wales ...

Fatwa : Child Custody (Residence) and Access (Contact)

If and when a marriage unfortunately comes to an end, the problems of the parties involved should not in any way affect the children. Children are a trust (amanah) from Allah Most High and they should be treated and looked after in a proper manner.

They have many rights, of which two are of utmost importance: to receive proper care and love, and the other proper upbringing (tarbiyah). These rights of a child can not be fulfilled except with the joint endeavour of the parents. The love, care and attention of the mother is just as important as the upbringing and training of the father.

In light of the above, divorce should definitely be avoided as much as possible, especially in the case where there are children involved. The Messenger of Allah (Allah bless him & give him peace) said:

“Divorce is the most hated of all lawful (halal) things in the sight of Allah.” (Sunan Abu Dawud, no. 2178)

However, if divorce did take place, and both parties demand their rights, then the right of custody will be in the following way. In should be remembered here that there is nothing wrong in making a mutual arrangement, as long as there is no objection from those who have a right to custody:

The mother has a right of custody for a male child until the child is capable of taking care of his own basic bodily functions and needs, such as eating, dressing and cleaning himself. This has been recognized at seven years of age.

Imam al-Haskafi (Allah have mercy on him) states:

“The custody of a male child is the right of the mother until the child is capable of taking care of his own self. This has been approximated at seven years of age, and the Fatwa (legal verdict) has been issued on this age, as normally children are able to take care of themselves at this age.” (See: Radd al-Muhtar, 3/566)

In the case of a female, the mother has this right of custody until she reaches puberty. This has been declared at nine years of age. (al-Mawsili, al-Ikhtiyar li ta’lil al-mukhtar, 3/237)

The right of custody will be taken away from the mother if she:

1) Leaves Islam,

2) Openly indulges in sins such as adultery and there is a fear of the child being affected,

3) She does not attend to the child due to her leaving the house very often,

4) She marries a non-relative (stranger) to the child by which the child may be affected,

5) She demands payment for the upbringing of the child if there is another woman to raise the child without remuneration.

In the above cases (when the mother no longer has the right to custody), this right then transfers to the following, in order:

a) Maternal grandmother, and on up;

b) Paternal grandmother, and on up;

c) Full sisters,

d) Maternal half sisters,

e) Paternal half sisters,

f) Maternal aunts,

g) Paternal aunts,

After all the avenues of the female have been exhausted as explained by the Jurists, the males have the right of custody in the following sequence:

a) Father,

b) Paternal grandfather,

c) Real brother,

d) Paternal brother,

e) Maternal brother,

The reason for this is that, in the early years, the mother and the other female relatives are more suitable for raising the young child (regardless of sex) with love, mercy, attention, and motherly care. The male child after reaching the age of understanding (7) is in need of education and acquiring masculine traits, which is why he is then transferred to the father. The female child, after reaching the age of understanding is in need of being inculcated with female traits, which she receives by living with her mother. After reaching puberty, she is in need of protection which the father offers.

In a Hadith recorded by Imam Abu Dawud in his Sunan, the Messenger of Allah (Allah bless him & give him peace) said to a woman who complained that her husband was intending to take her child away from her: “You are more rightful of the child as long as you don’t marry.” (Sunan Abu Dawud, no. 2276 & Mustadrak al-Hakim, 2/207)

It should also be remembered that after the transferral of custody from the mother to the father, the boy remains in the custody of the father until puberty, at which point, if he is mature and wise, he is free to choose with whom to live, or to live on his own. As for the girl, custody remains with the father until she marries. (See: Qadri pasha, Hanafi articles, 498 & 499)

Irrespective of who (mother/father) has the right of custody, the other party has visitation rights according to mutual understanding and consent. Generally, the party having the rights of custody use the child as a weapon to punish the other party by depriving them of visitation rights. This is totally against the concept of Islam and a severe, brutal and grave sin indeed, and also very harmful to the child. Unfortunately, many so called “religious” people are also involved in this heinous act.

At all times, the father of the child is responsible for maintaining the child; in the case of a female, until she marries; while in the case of a healthy male, until he reaches maturity. In the case of a disabled child (male or female) the father is permanently responsible.

When the mother has the rights of custody but does not have a shelter to stay in with the child, the father must provide shelter for both. (See: Radd al-Muhtar of Ibn Abidin).

And Allah Knows Best Muhammad ibn Adam Darul Iftaa Leicester , UK http://www.daruliftaa.org Institute of Islamic Jurisprudence

This has been used successfully in the High Court in London, Case being B v El-B (2003) 1 FLR 811, FD BFLS 5A[2277]; CHM 2[33.1] which states “Under the Hanafi rules of Sharia Law, transfer of legal custody of children from mother to father takes place at the ages of 7 (for boys) and 9 (for girls)”.

Germany

etc

Other jurisdictions

etc

International jurisdictional issues and child abduction

The Hague Convention

The Hague Convention on the Civil Aspects of International Child Abduction is in force between many states.

etc

See also

[Divorce] Parental alienation

External links

External links: objective

• Hague Convention (http://hcch.e-vision.nl/index_en.php?act=text.display&tid=21)
• US legal sources (http://www.law.cornell.edu/topics/child_custody.html)

External links: point of view of non-custodial parent

• [1] (http://www.auswaertiges-amt.de/www/en/laenderinfos/konsulat/kindesentziehung_html) A German site, but in English, on child abduction
• The American Coalition for Fathers and Children (ACFC) (http://www.acfc.org/) -- Largest member supported shared parenting organization in the USA
• Child Custody Information (http://www.deltabravo.net/) -- Large archive of custody-related articles and information
• ACFC President (http://www.acfc.org/0.htm) -- Insightful articles on relationship between family court and custody based on research.
• DADS in FAMILY COURT (http://groups.yahoo.com/group/dadsinfamilycourt) (US Case Law)
• Families Need Fathers (http://www.fnf.org.uk/) The UK situation is not dissimilar to that in the US.
• www.ParentingTime.net (http://www.parentingtime.net/) Example of a custody tracking tool
• "Me and My Sons" (http://www.mrindianajones.com/index.html#MeAndMySons) - one divorced father's account
• "Dad's House" (http://www.dads-house.com)Forum for Fathers separated from their Children (Ireland)

External links: other points of view