Ownership of Children in Islam

muslim_children_in_south_africa

TWO SEPARATE ISSUES

LEGAL RIGHT (OWNERSHIP) VS. PHYSICAL CUSTODY

 

It is very sad and displeasing to Allah-SWT when people divorce. But whether they divorce or stay married the legal right of fathers in Islam does not change, he is the sole owner. The physical custody right may change (and even that is limited to those that choose to practice the deen) but legal right simply does not. Female ownership of children did not exist in the time of the prophet (sallalahu alayhi wassallam) and it does not now. 

Inshallah, I will be spending the remaining portion of my 3 year old baby step- daughter’s life with her and I am afforded no visitation exposure to my biological daughter what-so-ever. But I personally can no more gain ownership of my step-daughter than I can lose ownership of my biological daughter, ISLAMICALLY. 

Sharia in all schools name the biological father “al wali” and the SOLE legal guardian of any child he parents including their person and possessions. Period. A mother generally has an initial right to physical custody, but never legal, custody of her child until the child reaches the age of custodial transfer. Unless she remarries. Then to have physical custody, all juristic schools maintain that a mother must not be married to a stranger (a non-relative) or to a relative who is not in a prohibited degree of relation to the child.

Followers of the rasulallah should accept and honor these examples or simply choose another religion because just like the decree concerning marriage then “you are not from amongst” him.

The right to physical custody is not an absolute right in the sense that a mother or father who possesses physical custody may not prevent the other parent from seeing the child. Therefore either way they both always have physical right to see a child.  BUT LEGAL RIGHT IS ABSOLUTE.

All schools and the shia agree  that upon the dissolution of the marriage, a woman loses the right of custody of their children to their father after the age of 7 for girls and 2 for boys.

Though there are some differences in opinion by school concerning when it should take place. 

A father has sole right of guardianship over his children.

Upon his death, the paternal grandfather acquires this right. In the latter’s absence anyone who had been nominated by the father is entitled to the guardianship.

But reality is reality. Islam does not afford legal ownership of children to females nor their families; that legal ownership whether physical interaction or ownership ever happens or not always rests with the biological father and his family.

“The child is an extension of his father and the bearer of his characteristics. During his lifetime he is the joy of his father’s eyes, while after his death he represents a continuation of his existence and an embodiment of his immortality. He inherits his features and stature as well as his mental qualities and traits, both the good and the bad, the beautiful as well as the ugly, from his father. The child is a part of his father’s heart and a piece of his body. “

 

 Al Hamdullilah

 

Advertisements

~ by siddiq khalifah on December 14, 2008.

2 Responses to “Ownership of Children in Islam”

  1. Thats a good question. We all just have to keep going. We try to better ourselves and not get overwhelmed by negativity. We have to let the past stay in the past and begin again. We try to love our kids even more. Sad that you dont get to see your daughter. Is there anything you can do about that, legally or anything? And yes, you still have have ownership in her, she will still look like you and she will do things that remind her mother of you everyday. She will still take up your heart and you have to let her know that you think of her. Keep trying to reach out to her. The most difficult question in this world is when my child asks me, Where’s my daddy? And he wont call or answer his phone. Just make yourself available as best you can.

  2. Thanks K2Keep. Yeah I struggle with that, what father wouldn’t even want to see his child or for that matter even pictures of the child and want to know on a daily or at least monthly basis the child’s health and well-being? But legally fighting and wasting joint resources for the child will do nothing but take away from her. God mandated that in His eyes I will always be the child’s father by birthright and will aways be responsible to the child. But there is nothing I can do to change anything else, except continue to make prayer (dua) concerning my child’s well-being. My particular situation involves a person that legally has protections against me from even dialoging with them concerning the child or seeing the child whether that be through religious, familiy or government counselling. But I am not unique. One day that child will realize that her father at least wanted to be…a father.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

 
%d bloggers like this: