the daughters of his father’s paternal uncles and the daughters of his father’s paternal aunts; then the remaining agnatic relatives, beginning with the closest.” Thus, the daughters of sisters take precedence over brothers.
His statement, “Then the remaining agnatic relatives”: Brothers are among the agnatic relatives, and the rule is “beginning with the closest.” Thus, brothers take precedence, then their sons, then paternal uncles, then their sons, and so on.
His statement, “And if she is female, then to her unmarriageable male relatives”: If the child in custody is female and has reached seven years of age, her custodian must be one of her unmarriageable male relatives. If he is not one of her unmarriageable male relatives, he has no right to custody, such as a cousin through her paternal uncle, a cousin through her maternal uncle, and the like.
This order mentioned by the author is founded neither on any textual evidence nor on sound legal reasoning. It also contains a degree of inconsistency, and the heart is not at ease with it. For this reason, the scholars have differed over the order of entitlement to custody, holding a number of views; yet none of them rests upon a reliable basis. Therefore, Shaykh al-Islam, may Allah have mercy on him, held that the closest relative should always take precedence, whether it be the father, the mother, a relative on the father’s side, or a relative on the mother’s side. If they are equally close, the female takes precedence. If both are males or both are females, lots are drawn between them when they belong to the same line; otherwise, the paternal line takes precedence. This principle has been summarized in two lines of verse:
Give precedence to the closest, then to the female;
And if they are male or female alike,
Draw lots when they are of one line; give precedence
To the paternal line when they belong to different lines.
“Give precedence to the closest, then to the female”: that is, if they are at the same degree of relation, the female takes precedence. “And if they are male or female alike”: that is, if all the potential custodians are