Q: I would like to know whom the kids are supposed to live with after divorce.
A: Your query refers. You have asked about custody of children after divorce. The following list of points should answer your question, insha Allah:
1) According to Islamic Law custody for boys under seven and girls under nine must go to the mother.
2) Once children are of the above age, the mother is not allowed to keep them any longer. It is compulsory on her to hand the children over to the father.
3) If upon reaching the above ages the children are still not capable of looking after themselves, for example, bathing, grooming, dressing, etc. then they will remain with the mother until they develop this degree of dependency.
4) However, if the mother remarries, or works outside the home during the day, or engages in any other activity that keeps her out of the home for the major part of the day, or leaves the town where they were always living, then she loses custody of the children. It is the mother’s responsibility to look after and provide motherly love for her children. If she shirks this duty, the Shariah then deems her unfit to remain a custodian of the children.
5) Likewise, if the mother leaves the child/children in the care of strangers, she loses custody.
6) Any custodian (mother or father) who lives an immoral life such as having affairs with the opposite sex, or inviting such partners into the home, also becomes disqualified for custody.
7) In the event of her losing custody, then according to the Books of Islam the grand-mother (mother's mother) should get custody. The children must then be placed in charge of their maternal grandmother. If the grandmother is not available, or not equipped to take custody, or refuses to take custody, then the paternal grandmother (father’s mother) will assume custody of the child/children.
8) If the grandmothers are not capable of looking after the children are refuse to do so, then the father can take them in.
9) Once the children are of an age that the father can take custody of them, he can exercise his right to take the children or he may allow them to continue living with their mother. In like manner, the mother, too, can allow the children to live with their father even while she is the rightful custodian of children.
And Allah Ta'ala knows best
Mufti Siraj Desai
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