Chapter on Custody Rulings

Custody (ḥaḍānah) is derived from ḥiḍn, “the side or lap,” because the caregiver draws the child to his or her bosom; the female custodian is called the ḥāḍinah, the foster mother. That is its linguistic meaning. In the legal sense it is the safeguarding of a minor—or whoever is legally in the minor’s place—from harm and the upbringing of that person by securing his physical and moral interests.

The wisdom of this is plain: a young child, or anyone in an equivalent legal position such as the insane or feeble-minded, is unaware of what benefits him. He therefore needs someone to look after him, procure benefits for him, avert harms, and raise him soundly.

For this reason our sacred law has instituted custody for such individuals—out of mercy toward them, solicitude for their affairs, and kindness to them. Were they left unattended, they would be lost and harmed. Our religion is one of mercy, mutual support, and compassion; it forbids abandoning them and obliges their care. Custody is thus a right the ward has upon his relatives and a right for the custodian who manages a kinsman’s affairs, just like other kinds of guardianship.

Custody devolves upon eligible custodians in a prescribed order:

The person with the strongest claim to custody is the mother. Imam Muwaffaq al-Dīn Ibn Qudāmah said: