does not, he should remain with the parent who gives him those instructions, not the other. For the parent who instructs him is obeying Allah and His Messenger in raising him, whereas the other is disobeying Allah and His Messenger. We therefore do not give precedence to someone who disobeys Allah concerning him over someone who obeys Allah concerning him.

Rather, if one parent treats him as Allah and His Messenger have commanded and refrains from what Allah and His Messenger have forbidden, while the other neglects the obligations owed to him or treats him in a forbidden manner, precedence must be given to the parent who fulfils those obligations, even if the boy chooses the other. Indeed, the disobedient parent has no authority over him whatsoever. Anyone who fails to fulfil the obligations of guardianship has no authority over the child. Either that person must be removed from guardianship and replaced by someone who fulfils those obligations, or someone must be appointed alongside that person to help fulfil them.

Thus, if keeping him with one parent does not secure obedience to Allah and His Messenger concerning him, whereas keeping him with the other does, the former must unquestionably be given precedence. This right is not like inheritance, which arises through kinship, marriage, and guardianship, whether the heir is hājiz (one who restrains) or incapable. Rather, it belongs to the category of “guardianship”—guardianship concerning marriage and property—which requires the ability to fulfil the relevant obligations and their actual fulfilment to the extent possible.

Suppose that the father has married another wife and the girl is left with her mother’s co-wife, who does not attend to her welfare but instead harms her or neglects her interests, whereas her mother attends to her welfare and does not harm her. In this case, custody belongs to the mother, even supposing that giving the girl a choice is prescribed and that she has chosen her mother. How much more so when that is not the case.

It should be understood that the Lawgiver has laid down no general text giving either parent precedence in all circumstances, nor one allowing a choice between the parents in all circumstances. The scholars agree that neither parent is invariably entitled to custody. Rather, where there is abuse or neglect, the parent responsible must not be given precedence over one who is righteous, just, caring, and fulfils the required duties. And Allah knows best.