within the prohibited degrees of marriage, such as a paternal uncle’s son and his male descendants, however remote, or are not blood relatives at all, such as the former master who freed him.
As for his appointed guardians, whether men or women, they qualify for custody by virtue of their guardianship alone, whether appointed by the father or by the ruler.
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Precedence among these custodians is determined by affection and gentleness, not by the strength of their legal authority, as it is in matters of marriage, patronage over freed slaves, funeral prayers, and entitlement to inheritance. Someone who does not inherit may nevertheless provide custody, such as an appointed guardian, a paternal aunt, a maternal aunt, a brother’s daughter, or a sister’s daughter. Conversely, someone who inherits may have no right to custody, such as a husband or wife—meaning the husband of a female ward or, if the ward is male, his wife—or a woman who emancipated the ward.
The person given precedence in custody is therefore the one known through established experience to be the most affectionate and compassionate toward the child and best able to attend to the child’s welfare. This is the mother. No scholar disputes that the mother has a greater right to custody than the father and all other male and female guardians, because the Prophet, peace and blessings be upon him, said:
“You have a greater right to him as long as you do not marry.”
However, it has also been reported that he, peace and blessings be upon him, drew lots between the parents. It has further been reported that he allowed the son to choose between his parents and awarded custody to whichever of them he chose. Some reports state: “The Prophet, peace and blessings be upon him, said to them, ‘Draw lots for him.’ The father refused, so the Prophet, peace and blessings be upon him, allowed the son to choose between them.” In other reports, the Messenger of Allah, peace and blessings be upon him, said to them, “If you wish, you may let him choose.”
Abū Ja‘far al-Tahāwī held that none of these reports should be regarded as contradictory and that all should be applied. Thus, the judge should invite the parents to draw lots for the child. If they both agree, he draws lots between them. If both, or either one, refuse, he says to them, “If you wish, you may let him choose.” If both, or either one, refuse that, he awards custody to the mother. This is a sound interpretation that allows all the reports to be applied, and applying them all is preferable to setting some aside.
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Just as the mother has a greater right than the father, her relatives have a greater right than the father’s relatives; there is no disagreement