What The Scholars Have Said Regarding Who Takes Custody Of The Children After Divorce
Al-Khattaabee (d.388h) said in Al-Ma’aalim:
“This is for the child who can reason and is no longer in need of nursing, if so, then he chooses between the two parents.”
Though the scholars have differed regarding this.
Imaam Ash-Shaafi’ee (d.204h) says:
“If he turns seven or eight years of age, he chooses.”
This is what Ishaaq (d.238h) said as well.
Imaam Ahmad said:
“He chooses when he has grown up.”
The people of ra’yee (opinion) and Sufyaan Ath-Thawree (d.167h) say:
“The mother has more right to the child until he can eat by himself and dress himself. And with the girl, until she has her menses, then the father has more right.”
Imaam Maalik says:
“The mother has more right to the girls until they can marry, even after having their menses. And as for the boys, he has more right to them until they reach the age of puberty (and then they can decide for themselves).”
“It is likely that those who leave off the choice [of the child]and go to the father having more right as kong as the child is no longer in need of nursing, go to that because the mother is the one who does the nursing of the child and she is more caring in that. And when the child passes the age of nursing, then he is in need of the father and sustenance and the father is a better protector for him than the mother.”
[Quotes extracted form “The Legislated Divorce” by Shaykh Badee’ Ud-Deen As-Sindhee]