Child Custody

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From wikishia

Child custody or Ḥiḍāna (Arabic: حِضَانَة) is a jurisprudential term that means to raise and to take care of a child. Child custody is one of the duties of the parents. Many jurists believe that whenever the parents get divorced, the custody of the girl until she is seven and the custody of the boy until he is two is given to the mother and after that to the father. Some jurists, however, say that child custody is for mother until the child is seven and after that (until the child becomes an adult) is for the father. If one of the parents dies, the other will have the child custody and if both die, it is given to the paternal grandfather and if he is not available, it will be the duty of other relatives, according to their rank in inheriting. The custody of an illegitimate child is for the biological father (fornicator). There are certain conditions and rulings about child custody and whom it is given to.

Meaning

Hidana (child custody) is an Islamic jurisprudential term that means to take care of a child. It is discussed in some jurisprudential topics, such as: marriage, divorce and luqata (found people or objects).[1]

Conditions and Rulings

Time

In Islamic jurisprudence, the parents have the child custody until they live together.[2] Nevertheless, there are different opinions about after their divorce. As stated by some jurists and also by the Iranian Civil Law, child custody (boy or girl) until the age seven is given to the mother and afterward to the father.[3] Another group of jurists maintain that the custody of a girl until she is seven and the custody of a boy until he is two is given to the mother and then to the father.[4] Needless to say, the parents have the child custody from the birth until the child becomes an adult, after which he/she is not a child to be taken care of.[5]

Meeting the Child

Which one of the parents who is granted the child custody must not prevent the other from meeting, helping or babysitting the child. [6]

Transferring Child Custody

There are various opinions concerning the transferability of child custody. Some jurists believe that it is a kind of guardianship that cannot be transferred to others.[7] On the other hand, some say it is a right that can be given to someone else.[8]

Conditions of Who Was Given Child Custody

According to Islamic jurisprudence, the one who is given the child custody must be sane and free (not a slave).[9] In addition, some jurists believe that the mother can only be granted the child custody if she has not married another person.[10] Some jurists maintain that if the child is Muslim the mother must be Muslim as well.[11]

Custody of Orphan

After the death of any of the parents the child custody is given to the other.[12] If they both die or are missing, the child custody is given to the paternal grandfather and if he was not present, it is given to the child's relatives (in accordance to their rank in inherence).[13] Some jurists believe that if the child's paternal grandfather is missing, Shari'a ruler must use the child's money to appoint someone to take care of the child, and if the child does not have any money the custody of the child is collective obligation (al-wajib al-kifa'i).[14]

Custody of Illegitimate Child

Jurists see that hidana and nafaqa (expenditure) of an illegitimate child must be undertaken by the child biological parents, although the child does not inherit from them.[15]

Custody of Found Child

There are two opinions about a found child: some say that the child must be given to a judge or Shari'a ruler[16]; others say that the one who found the child must take the child custody, unless the one is incapable of that.[17]

Notes

  1. ↑ Hāshimī Shāhrūdī, Farhang-i Fiqh muṭabiq-i madhhab-i Ahl al-Bayt, vol. 3, p. 309.
  2. ↑ Hāshimī Shāhrūdī, Farhang-i Fiqh muṭabiq-i madhhab-i Ahl al-Bayt, vol. 3, p. 309.
  3. ↑ Khoei, Mabānī-yi minhāj al-ṣālḥīn, vol. 10, p. 280; Rūḥānī, Fiqh al-Ṣādiq, vol. 22, p. 304.
  4. ↑ Makārim Shīrāzī, Istiftāʾāt-i Jadīd, vol. 3, p. 265.
  5. ↑ Makārim Shīrāzī, Aḥkām-i bānuwān, p. 202.
  6. ↑ Tawḍīḥ al-masāʾil-i Marājiʿ, vol. 2, p. 651.
  7. ↑ Hāshimī Shāhrūdī, Farhang-i Fiqh muṭabiq-i madhhab-i Ahl al-Bayt, vol. 3, p. 308.
  8. ↑ Najafī, Jawāhir al-kalām, vol. 31, p. 284.
  9. ↑ Tawḍīḥ al-masāʾil-i Marājiʿ, p. 894.
  10. ↑ Tawḍīḥ al-masāʾil-i Marājiʿ, p. 894.
  11. ↑ Hāshimī Shāhrūdī, Farhang-i Fiqh muṭabiq-i madhhab-i Ahl al-Bayt, vol. 3, p. 310.
  12. ↑ Najafī, Jawāhir al-kalām, vol. 31, p. 293.
  13. ↑ Tawḍīḥ al-masāʾil-i Marājiʿ, vol. 2, p. 652.
  14. ↑ Baḥrānī, Al-Ḥadāʾiq al-nāẓira, vol. 25, p. 97.
  15. ↑ Makārim Shīrāzī, Istiftāʾāt-i Jadīd, vol. 3, p. 266.
  16. ↑ Najafī, Jawāhir al-kalām, vol. 38, p. 174.
  17. ↑ Najafī, Jawāhir al-kalām, vol. 38, p. 175.

References

  • Baḥrānī, Yūsuf al-. Al-Ḥadāʾiq al-nāẓira fī aḥkām al-ʿitrat al-ṭāhira. Qom: Muʾassisa-yi Nashr-i Islāmī, 1405 AH.
  • Hāshimī Shāhrūdī, Sayyid Maḥmūd. Farhang-i fiqh muṭabiq-i madhhab-i Ahl al-Bayt. Qom: Markaz-i Dāʾirat al-Maʿārif-i Fiqh-i Islāmī, 1382 Sh.
  • Makārim Shīrāzī, Naṣir. Aḥkām-i bānuwān. Qom: Nashr-i Madrisa-yi ʿAli b. Abī Ṭālib, 1386 Sh.
  • Makārim Shīrāzī, Nāṣir. Istiftāʾāt-i Jadīd. Qom: Nashr-i Madrisa-yi ʿAli b. Abī Ṭālib, 1386 Sh.
  • Najafī, Muḥammad Ḥasan. Jawāhir al-kalām. Edited by Maḥmūd Qūchānī. Tehran: Dār al-Kutub al-Islāmīyya, 1362 Sh.
  • Risāla-yi tawḍīḥ al-masāʾil-i Marājiʿ. Qom: Intishārāt-i Tafakkur, 1372 Sh.
  • Tawḍīḥ al-masāʾil-i Marājiʿ. Qom: Daftar-i Intishārāt-i Islāmī, 1392 Sh.
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