Chapter: Impediments to Custody

The impediments that invalidate a person’s right to custody include the following:

1. Slavery. No one who is even partially enslaved may serve as custodian, because custody is a form of legal guardianship and a slave is not qualified to exercise guardianship. In addition, the slave is occupied with serving his master and his services belong to that master.

2. Openly flagrant sin. Such a person is not trustworthy, and leaving the child in his care would harm the child; he would give the ward a poor upbringing and raise him according to his own corrupt ways.

3. Disbelief. A non-Muslim may not act as custodian over a Muslim child, for he is even less entitled than the flagrant sinner. His harm is graver: he may lead the child astray in matters of faith and draw him out of Islam by teaching him disbelief and rearing him upon it.

4. A woman who remarries a man unrelated to the child. The Prophet ﷺ said to the child’s mother, “You have the greater right to him so long as you do not remarry.” The new husband has a claim on her time and may prevent her from undertaking custody. Here, “a man unrelated to the child” means someone who is not among the child’s agnatic relatives; therefore, if she marries a relative of the child, her right to custody is not lost.

If any of these impediments is removed—such as when the slave is emancipated or the flagrant sinner repents,