3 – The scholars disagree both over the very basis of allowing the child a choice and over the age at which that choice becomes operative; this will be detailed later, Allah willing.

4 – Hadith no. (1003) establishes the permissibility of giving the child a choice even when one parent is an unbeliever while the child is Muslim—or is legally deemed Muslim. The differing views on this will likewise be explained, Allah willing.

5 – A discerning child has a legally recognized will enabling him to choose either of his parents. Ibn al-Qayyim, however, states: “The option of choosing is granted only when it benefits the child. If the mother is more protective and more honourable than the father, she is given precedence, and the child’s preference is disregarded in that case. His intellect is still immature; he favours idleness and play. If he opts for the parent who indulges that tendency, his choice is ignored and he is placed with the one who will best serve his interests. The sharīʿah cannot allow otherwise.”

Disagreement among the jurists:
Before reaching the age of discernment, the child remains with his mother by unanimous agreement, provided she has not remarried. Once he becomes discerning and can manage some of his own affairs, opinions diverge:
• Some hold that the child is given the choice between his parents and goes with whichever of them he selects; this is the view of Imām Aḥmad, Isḥāq, and others.
• The Ḥanafīs deny any such choice, saying: “When the child can fend for himself, the father has the greater right to the boy, and the mother to the girl; no choice is involved.”
• Mālik also rejects the notion of choice, yet maintains: “The mother has the stronger claim to the child, whether male or female,” citing the Prophet’s words: “You are more entitled to him so long as you have not married again.”
Those who allow the child to choose reply that the hadith granting custody to the mother is general, whereas the hadith of choice specifies or restricts it, thus reconciling the two pieces of evidence. Still, this permission—or its absence—is governed by Ibn al-Qayyim’s aforementioned principle, for custody is a guardianship aimed at nurturing the child and securing his welfare. Ibn al-Qayyim’s words presumably reflect the intent of every scholar who spoke in unrestricted terms, for they