The Shaykh—may Allah Most High have mercy on him—said: (*)
All praise belongs to Allah, whom we praise and whose help and forgiveness we seek. We seek refuge in Allah from the evil within ourselves and from our evil deeds. Whomever Allah guides, none can lead astray, and whomever He leads astray, none can guide. We bear witness that none has the right to be worshipped except Allah alone, without partner, and we bear witness that Muhammad is His servant and Messenger. May Allah bestow abundant blessings and peace upon him.
Section:
The position of Imam Ahmad and other scholars regarding “custody of a child who has reached the age of discernment”: Does custody belong to the father or the mother, or is the child given a choice between them?
Many books by scholars of Ahmad’s school state only that, when a boy reaches seven years of age, he is given a choice between his parents, whereas the father has the greater right to custody of a girl. Those who mentioned this, such as al-Khiraqī and others, had received some of Ahmad’s statements on this question, but not the rest. Ahmad’s statements are numerous and very widely dispersed. Few have a comprehensive grasp of all his statements on many questions, given their abundance and wide dispersal, and the great number of people who studied under him.
“Abū Bakr al-Khallāl” travelled throughout the lands and compiled some forty volumes of Ahmad’s statements on questions of jurisprudence. Yet he missed many matters that are not found in his books. As for what he compiled from
(*) Shaykh Nāsir ibn Hamad al-Fahd stated (pp. 242–244):
This treatise is missing its ending and contains abridgments and summaries. It appears in full at the end of Mukhtasar al-Fatāwā al-Misriyya (Abridgment of the Egyptian Fatwas), pp. 613–638, where Muhammad Hāmid al-Fiqī—may Allah have mercy on him—appended it to the abridgment. There are differences between the two versions, the most important being:
1. Here, at 34/112, it reads: “such as Kitāb al-'Ilm (The Book of Knowledge), which he compiled[, and] among discussions of hadith defects, such as Kitāb al-'Ilal (The Book of Hadith Defects), which he compiled.”
The words in square brackets come from the Egyptian Fatwas version and clarify the meaning.
2. At 34/114: “Mālik’s position in al-Tahdhīb is that the mother has the greater right to custody of him until he reaches puberty.” In the Egyptian Fatwas version, p. 615: “Mālik’s position in al-Mudawwana …”
3. At 34/115: “But al-Hasan ibn Sālih ibn Hayy reported that she is given a choice when she becomes a kā'ib (a girl whose breasts have begun to develop). Giving a boy a choice. And the position of al-Shāfi'ī, Ahmad—according to the well-known report from him—and Ishāq …”
The correct wording, as in the Egyptian Fatwas version, p. 617, is: “But it is reported from al-Hasan ibn Hayy that she is given a choice when she becomes a kā'ib. Giving a boy a choice is the position of al-Shāfi'ī, Ahmad—according to the well-known report from him—and Ishāq …”
4. At 34/120:
“Regarding the expiation for someone who has intercourse during Ramadan: may he choose among its alternatives, or must he follow their prescribed order? There are two positions, both reported from Ahmad. Most scholars maintain that the prescribed order must be followed. However, that order is established through the account of the man who had intercourse, not through wording of general application. For this reason, some scholars ventured to require certain kings specifically to fast, holding that this order is not a universally applicable prescription, but rather a matter of tanqīh al-manāt (determining the operative rationale of the ruling). Emancipation was given precedence for someone who finds it harder than fasting, such as the Bedouins. As for someone who finds emancipation easier, he is not required to give it precedence.”
I say—the speaker is Shaykh Nāsir al-Fahd: These lines appear to have been omitted from the manuscript underlying the Egyptian Fatwas version; see p. 621. Perhaps Shaykh al-Islām himself—may Allah have mercy on him—omitted them in another copy. Allah Most High knows best.
5. At 34/128: “Giving the boy a choice, as established by the sunnah, is preferable to assigning him whichever parent he loves more. Thus, assigning the father, as held by Abū Hanīfa and Ahmad … the mother, as held by Mālik and, in one report, Ahmad; and the choice is one based on desire.”
I say—the speaker is Shaykh Nāsir al-Fahd: This wording is confused. The corresponding passage in the Egyptian Fatwas version, p. 627, reads:
“Giving the boy a choice, as established by the sunnah, is preferable to assigning him one of his parents. Thus, assigning the father, as held by Mālik and Ahmad in his report, and the choice is one based on desire.”
This wording is also confused.
6. Approximately eight further pages of the original appear in the Egyptian Fatwas version (pp. 631–638) but are absent from the Fatwas.