Why a wife loses custody of her children in case she remarries
Fatwa No: 182019

Question

Salam Alaykum wa rahmatullah wa barakatuh, A Sister told me that when I have children and get divorced, and later want to marry again another men, its not allowed the children lived with me and the new husband. Is that true? I cant understand that because the most of woman would love much more their children than an new men and so she cannot marry and have to live 10 years for example since the children growing up by her parents. If the woman is young 20 maybe after divorce, its difficult to find a new man with 30+. And the poor Parents have to finace the woman and their children all the time. Is that islamic, and what is the sense of this? Which woman gives her children for another foreign men, or its the pressure if she has no money?

Answer

All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) is His slave and Messenger.

It is true that if the mother remarries, she loses the right of the custody of her children, and some scholars reported a consensus among the scholars on this issue.

So, if she remarries, the fostering of the children moves to other women who are more deserving of fostering them after her according to the order that is mentioned by the jurists  may  Allaah  have  mercy  upon  them and which we mentioned in Fatwa 84618.

The jurists  may  Allaah  have  mercy  upon  them clarified the wisdom why she loses the right of fostering in this case saying that it is to protect the interest of the fostered child. In his “Al-Muntaqa”, Al-Baaji  may  Allaah  have  mercy  upon  him from the Maaliki School of jurisprudence, said: “This is because the child is harmed by the hatred of the husband who may get fed up with him and because the mother, by necessity, may neglect her child out of her desire to please her husband and her being preoccupied by him, and all this harms the child. This is why she loses the right of fostering.

Moreover, An-Nawawi  may  Allaah  have  mercy  upon  him from the Shaafi’e School of jurisprudence, said in “Al-Majmoo’”: “Because if she remarries, her husband has the right to enjoy her (at all times) except at the time of worship (i.e. when she is performing an act of worship), so she cannot foster her children (form a previous marriage).

Indeed, this proves that Islam is a realistic religion. As for the fact that the mother likes that her children be with her so that she would nurture them, then this is an emotional statement that may be contrary to the reality in case she marries another man who may not agree in principle that his wife’s children from another man live with him in his house, and so, the children will be harmed. Therefore, taking the interests of the children into account in this case, the Sharee’ah put the right of fostering the children in the hands of the female who is more deserving of fostering them after their mother, like the mother of the mother (i.e. their grandmother from the mother’s side). In this case, the mother would be able to remarry and her interest would be fulfilled, and thus both interests would be fulfilled (i.e. the interest of the mother as well as that of the children).

On the other hand, it is the father who is obliged to spend on the children as long as they are in need; for more benefit, please refer to Fatwa 86603. Hence, even if divorce takes place, the father is still obliged to spend on the children. Also, the wife has rights on her husband after divorce, like him spending on her during her waiting period from a revocable divorce. For more benefit, please refer to Fatwa 83934.

Therefore, in Sharee’ah, the interests of people are taken into account and guaranteed as Sharee’ah is revealed by The All-Wise, The All-Knower Who created the creatures and knows well their best interests. Allaah Says (what means): {Does He who created not know, while He is the Subtle, the Acquainted?} [Quran 67:14]

Allaah Knows best.

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