Section
Among the male agnatic relatives, the brother has the greatest right to custody, followed by the grandfather, then the brother’s son, then the paternal uncle. This is the order given in Ibn al-Mawwāz’s book. He may mean that the grandfather, however far up the line of ascent, takes precedence over the brother’s son and the paternal uncle. Alternatively, he may mean that precedence among the male agnatic relatives belongs first to the brother, then the immediate grandfather, then the brother’s son, then the paternal uncle, then the paternal uncle’s son and his descendants, however far down the line, with the nearest taking precedence; then the grandfather’s father; then the paternal uncle’s paternal uncle; then that uncle’s son and his descendants, however far down the line, with the nearest taking precedence; then the grandfather’s grandfather and his descendants; then the father of the grandfather’s grandfather and his descendants, continuing in this order indefinitely.
The order of precedence for custody among male agnatic relatives does not follow the order governing inheritance of property, inheritance through walāʾ (the bond of manumission), or leading funeral prayers. For the grandfather, however far up the line of ascent, ranks above the brother in inheritance, since his share alongside brothers never falls below one-third. Moreover, brothers’ sons, paternal uncles, and their sons receive no share of the estate in the presence of a grandfather, however far up the line of ascent, whereas in inheritance through walāʾ, the brother’s son takes precedence over the grandfather.
Section
According to Ibn al-Qāsim’s position in al-Mudawwana, the greatest right to custody after the mother belongs to the maternal grandmother, however far up the line of ascent. If several grandmothers are present, they are ranked in the order we have described [then the maternal aunt; if several maternal aunts are present, they are ranked in the order we have described], then the mother’s maternal aunt; if several are present, they are ranked in the order we have described. Then comes the mother’s paternal aunt; if several of her paternal aunts are present, they are ranked in the order we have described.
Next comes the paternal grandmother, however far up the line of ascent. If several paternal grandmothers are present, they are ranked in the order we have described. Then comes the sister; if several sisters are present, they are ranked in the order we have described. Then comes the paternal aunt, followed by the father’s paternal aunt, the father’s maternal aunt, brothers’ daughters, and sisters’ daughters. It has also been held that sisters’ daughters have no right to custody; that they take precedence over brothers’ daughters; or that both groups hold equal rank, with the ruler considering which of them is best able to safeguard the child and provide adequate care.