Section

If a boy reaches the age of seven and is of sound mind, he is given the choice between his parents and remains with whichever of them he chooses. He is not to be left in the custody of one who will not protect and properly care for him. After the age of seven, the father has the greater right to the girl. Once a boy has attained maturity and sound judgment, he may live wherever he wishes; but a girl remains with her father until her husband takes her into his care.

His statement, “If a boy reaches the age of seven and is of sound mind, he is given the choice between his parents and remains with whichever of them he chooses”: before the age of seven, the child in custody remains with the mother, whether male or female. Some scholars held that the choice begins after five years, while others held that it begins after nine years. What appears correct, however, is that it begins after seven years, because discernment generally develops at this age; it is thus a middle position.

After the age of seven, the ruling differs. If the child is a boy of sound mind, he is given the choice. If he is not of sound mind, then he remains with his mother. Thus, a boy who has reached that age and is of sound mind is given the choice, as Umar and Ali ruled (1). Said and al-Shafii narrated that the Prophet ﷺ “gave a boy the choice between his father and his mother” (2).

If he chooses his mother and says, “I want my mother because she lets me play as I please, whereas my father makes me study,” then custody is assigned to his father, because he is not to be left in the custody of one who will not protect and look after him. The converse likewise applies: if he chooses his father because his father does not care for him, whereas his mother attends to his welfare and teaches him to memorize the Quran, then he is returned to his mother.