to the child in custody, her right of custody is forfeited, based on the Prophet’s saying, peace and blessings be upon him: “You have the greater right to him so long as you do not marry.” (1) But if the husband is one of the child’s relatives, the mother’s right of custody is not forfeited.

The evidence that marriage to a relative does not nullify custody is the account of Hamzah’s daughter, may Allah be pleased with him. When she came out with the Prophet, peace and blessings be upon him, calling, “Uncle! Uncle!” Ali ibn Abi Talib, may Allah be pleased with him, took her and handed her over to Fatimah, saying, “Here is your cousin’s daughter.” Ja‘far ibn Abi Talib disputed this with him, and Zayd ibn Harithah disputed it with them both. Ali said, “She is my cousin’s daughter, and I have the greater right to her.” Ja‘far said, “She is my cousin’s daughter, and her maternal aunt is married to me.” Zayd said, “She is my niece,” because the Prophet, peace and blessings be upon him, had established brotherhood between him and Hamzah ibn Abd al-Muttalib. The Messenger of Allah, peace and blessings be upon him, therefore awarded custody of her to her maternal aunt and said, “The maternal aunt holds the same position as the mother.” Thus, he excluded all three of them. Yet, because of his noble character, the Messenger of Allah, peace and blessings be upon him, pleased each of them: he said to Ali ibn Abi Talib, “You are from me, and I am from you”; to Ja‘far, “You resemble me in appearance and character”; and to Zayd, “You are our brother and our freedman.” (2)

This does not conflict with the Prophet’s saying, peace and blessings be upon him, “You have the greater right to him so long as you do not marry,” (3) because the two reports can be reconciled. The hadith concerning Hamzah’s daughter is understood to refer to a case in which the husband is not unrelated to the child in custody, for he was her cousin. As for the hadith, “You have the greater right to him so long as you do not marry,” it applies when the husband is unrelated to the child in custody. In this way, the evidence is reconciled. How often a woman remains unmarried because of a single child—so she does not marry