the child’s custodian; yet she may not move the child away from the father’s place of residence except to a nearby locality—roughly within the distance at which the traveller is not permitted to shorten the prayer. Even if, when the father leaves her town, he stipulates that he will leave the child with her only on condition that she undertake his maintenance and expenses for a specified number of years, and she accepts the condition but then dies, her heirs are not answerable for those costs out of her estate. Some have said that the amount should be treated as a debt recoverable from the estate, but the first view is sounder, God willing. The same ruling applies if the child himself were to die, or if the father had settled with her for the expenses of pregnancy and nursing and she then miscarried: no claim may thereafter be made.
Mālik also said about a man who buys a slave boy for five dinars on condition that the seller guarantees him: if the boy dies, nothing is due. He added, “this was not meant as a normal commercial transaction.”
If the mother marries, the child is not taken from her until her husband has consummated the marriage with her. Should he then divorce her, she is not entitled—according to the most prevalent report from Mālik in our school—to have the child returned to her. Ismāʿīl al-Qāḍī and Ibn Khuwayz Mindād likewise transmit that Mālik’s opinion on this differed: at one time he said the child is returned to her, and at another he said it is not.
If a woman gives up custody of her child while she is free and unencumbered by a husband, and later wishes to reclaim him, the reason for her abandonment is examined. If she left him for a valid excuse, she may take him back; but if she abandoned him out of aversion or spite, she is no longer allowed to do so, for she might later hand him over again after a few days and no one else would accept him.
When a slave-concubine (umm al-walad) is emancipated while her child is still young, her status regarding that child is the same as that of a divorced free woman. If she is Christian and the child’s father is Muslim, she too has the stronger right to custody—unless