intended nothing by their discussion of custody except to clarify the child’s welfare and to determine who, at so early an age, is better qualified to oversee his needs and circumstances.

The jurists diverged on whether a non-Muslim may have custody of a Muslim child:

1. The Ḥanafīs maintain that a dhimmī mother has the stronger claim to the custody of her Muslim child so long as he is still too young to grasp matters of religion. Their reasoning is that custody is founded on compassion, and a mother—whether Muslim or dhimmī—shows more compassion to her child than anyone else; the difference of religion does not cancel that maternal mercy. Once the child becomes able to understand the different faiths, however, he is removed from her because of the potential harm.

2. The Mālikīs likewise hold that the custodian and the child need not share the same religion, so the child is not taken from his dhimmī custodian even if there is fear that she might feed him pork or give him wine. In such a case, the custodian is placed under the supervision of some Muslims—or of a single Muslim who watches over the child—thereby combining the two interests: the compassionate care of the mother and the safeguarding of the child’s religion. They cite the present hadith as proof, for the boy’s mother had not embraced Islam.

3. The Shāfiʿīs, the Ḥanbalīs, and a well-attested view within Mālik’s own school hold that religious difference bars custody altogether: a non-Muslim may not have custody over a Muslim child. They invoke the verse: “And Allah will never allow the disbelievers to have a way over the believers” (Qur’an 4:141). They also appeal to the hadith under discussion, noting that the Prophet ﷺ prayed for the boy’s guidance, after which the child inclined toward his Muslim father—indicating that his remaining with a non-Muslim would run counter to Allah’s guidance.

Their rationale is that the aim of custody is upbringing and protection from harm, and the highest form of upbringing is preserving the child’s faith, while the most critical protection is to keep disbelief away from him. Placed in a non-Muslim’s custody, the child may be lured from his religion and led out of Islam by being taught and raised upon unbelief—an overriding harm. Since custody is instituted to safeguard the child, it cannot be legislated in a way that would destroy him or his religion.