to stay with whichever of them would corrupt his state.
This right, then, does not resemble inheritance, which is obtained merely through kinship, marriage, or patronage. Rather, it belongs to the sphere of wilāyah (guardianship)—the guardianship of marriage and property—which requires both the capacity to discharge the obligatory duties and the actual performance of those duties to the extent possible. One must bear in mind as well that the Lawgiver has issued no comprehensive text that gives absolute precedence to one of the parents, nor any text that grants either of them an unrestricted power of choice. The scholars are unanimous that no parent is singled out without qualification: when there is wrongdoing or negligence, the offending parent is not preferred over the dutiful, just, and benevolent parent who fulfills what is required. Allah knows best.
He also said, may Allah have mercy on him: “If the mother marries, she no longer has custody; and any woman who keeps a child although the right of custody is not hers, and then demands maintenance, has no claim to it, for her assumption of custody is wrongful, and a wrongful custodian is not entitled to maintenance.”
Al-Ṣanʿānī remarked: “The commentator (meaning Ibn Daqīq al-ʿĪd) did not address how to reconcile the hadith of this chapter—which awards custody to the maternal aunt—with the hadith of ʿAmr ibn Shuʿayb, in which a woman said, ‘Messenger of Allah, this son of mine—my womb was his vessel, my breast was his drink, and my lap was his shelter. His father divorced me and now wants to take him from me.’ The Messenger of Allah ﷺ replied, ‘You have a stronger claim to him so long as you do not remarry.’ Reported by Abū Dāwūd.”
Ibn al-Qayyim said: “This is a hadith for which people had to rely on the narration of ʿAmr ibn Shuʿayb; they found themselves compelled to use it as evidence because there is no other hadith from the Prophet ﷺ in which custody lapses upon remarriage. The four imams and others have nonetheless adopted its ruling.”
The point of apparent conflict is that the Prophet ﷺ awarded custody of Ḥamzah’s daughter to her maternal aunt even though the aunt was married to Jaʿfar, and he did not say that her right to custody had lapsed because of her marriage. The two reports are reconciled by saying that if the husband is content for his wife to exercise custody over a child to whom she has a rightful claim, that right remains intact. In this case, the husband himself—Jaʿfar—was the very one petitioning for the custody of Ḥamzah’s daughter on behalf of her maternal aunt; that constitutes his consent and more. It has therefore been said that the rationale for a woman’s forfeiture of custody upon remarriage is her preoccupation with the husband’s rights; when the husband is pleased, her right remains because the factor that would have nullified her custody is absent.