and said that this indicates that she has the right of custody. This is why he forbade separating her from her children, so that they may remain with her, in her care and under her guardianship.

His statement, “Nor does a flagrantly sinful person have the right of custody”: from this, we understand that the custodian must be upright. If he is flagrantly sinful, he has no right of custody. The apparent meaning of the jurists’ words is that this applies whether the sinfulness relates to beliefs, statements, or actions. But this is clearly open to question.

The correct view is that if his sinfulness results in his failing to carry out the duties of custody, then uprightness is stipulated; but if it does not lead to this, it is not a condition. Thus, if a man entitled to custody shaves his beard—shaving the beard being sinful—yet he is among the most diligent people in caring for and raising his own children, his brother’s children, or those of another relative, should we deprive this man of his right? No. But if his sinfulness leads to a deficiency in custody, as when it relates to his character and conduct, then we stipulate that he be upright. Nevertheless, this is a condition according to the madhhab.

His statement, “Nor does a disbeliever have the right of custody”: a disbeliever has no right of custody over a Muslim. Thus, if the mother is a disbeliever and the father is a Muslim, and they have a child between them, then separate, and the mother seeks to have the child in her custody, we do not allow her that, because she is a disbeliever. It is feared that she may call the child to disbelief, as the Prophet, peace and blessings be upon him, said: “Every child is born upon the natural disposition; then his parents make him a Jew, a Christian, or a Magian” (1). Therefore, a disbeliever has no right of custody over a Muslim.