Section
The father’s female relatives are ranked for custody in the same order as the mother’s relatives, as explained above. Among his relatives, his mother has the greatest right to custody. If she is unavailable or is married, custody passes to his maternal grandmother or paternal grandmother. If both are present, his maternal grandmother takes precedence over his paternal grandmother. If neither is present, custody passes to the mother of his maternal grandmother, the mother of his paternal grandmother, the mother of his paternal grandfather’s mother, or the mother of his maternal grandfather. If all are present, the mother of his maternal grandmother takes precedence, followed equally by the mother of his maternal grandfather and the mother of his paternal grandmother, and then by the mother of his paternal grandfather’s mother. Their mothers follow this same order, however far up the line of ascent.
If none of these women is present, custody passes to a daughter of both parents or of either parent—that is, the child’s sister. If there are several sisters, the full sister takes precedence, followed by the maternal half-sister and then the paternal half-sister. If none is present, custody passes to the father’s sisters, who are the child’s paternal aunts, whether the father’s full sisters, maternal half-sisters, or paternal half-sisters. If all are present, the full sister takes precedence, followed by the maternal half-sister and then the paternal half-sister, because kinship through the mother is closer than kinship through the father, as we explained regarding maternal aunts.
If none of these women is present, custody passes to the grandfather’s sisters, who are paternal aunts of both the father and the paternal uncle, whether the grandfather’s full sisters, maternal half-sisters, or paternal half-sisters. Here too, if all are present, the full sister takes precedence, followed by the maternal half-sister and then the paternal half-sister. If none is present, custody passes to the grandmother’s sisters, whether her full sisters, maternal half-sisters, or paternal half-sisters; these are the father’s maternal aunts. If all are present, the full sister takes precedence, followed by the maternal half-sister and then the paternal half-sister. This same order applies as paternal kinship becomes more remote and extends further up the line of ascent.
If none of these women is present, custody passes to the daughters of brothers and sisters, whether full siblings, maternal half-siblings, or paternal half-siblings, and to their female descendants, however far down the line, with the nearest in degree taking precedence. Ibn Habīb held in al-Wādiha that sisters’ daughters have no right to custody. This is a far-fetched view that departs from the principle we have established, for they are blood relatives whom the child is permanently forbidden to marry. There is therefore no distinction between them and his other female relatives regarding their entitlement to custody.
If both a brother’s daughter and a sister’s daughter are present, the brother’s daughter is given precedence in custody, in consideration of the difference of opinion we have reported. By analogy, however, the two hold equal rank: the ruler should examine the matter and award custody to whichever is better able to safeguard the child and provide adequate care. If none of these women is present, or if the woman who is present is married to an unrelated man, custody passes to the male agnatic relatives. Daughters of paternal aunts and daughters of maternal aunts have no entitlement to custody, because they are not relatives whom the child is permanently forbidden to marry.