Child Health Care Through Hadanah (Custody)

It is recognized that the rules concerning the protection and prevention of the child from any possible cause of injury and the preparation for its upbringing and safeguarding of interest is one of the objectives of the Islamic family law. Among its goal is to assure the preservation of children’s health and well-being. Besides being suckled by the breast of the mother, a child also needs guardianship, which according to Islamic family law, means the caring for the child and looking after his/her upbringing. The child needs to be taken care of, including feeding, clothing, etc. Accordingly, the parent is under an obligation to support for his or her children. If the parent neglects that duty, any person who supplies items such as food and clothing is deemed to have an implied promise to pay on the part of parent. The reasoning behind this rule is the inability of the child to care for himself because his mind is supposed to be still imperfect. Similarly, Islamic family law considers the child innocent during childhood and therefore, damages caused by him have to be repaired by the guardian. This is supported with a hadith of the Prophet who said: “The recording pen (responsibility), is lifted in three cases: a boy (a minor) till puberty; a sleeping person till he wakes up; and a mentally sick (mad) person till he recovers.”[1]          

Islamic family law is concerned to prevent any mental and physical abuse to the child. Thus, according to the Sunni school of fiqh, the mother has the right to custody of the child during infancy unless the court decides otherwise. Furthermore, it is the general rule in Islamic family law that during immature stage, the custody of a child belongs to the female relations of the child over the father’s side. The female’s relatives in order of precedence in this connection are: mother’s mother (umm al-umm); mother’s mother’ mother; father’s mother; father’s father’s mother; sister; sister’s daughter; mother’s sister; and father’s sister and so on.[2]  However, a father’s relation who is not awarded custody still has the right of reasonable visitation with such child. This rule, according to Abu Zahrah, has strong rational reasons as enumerate below:

The first phase of the first guardianship, which is called that of dependence (hadanah), is overseen by women and not by men. This is because at this stage of its life the child needs to be cared for by women and cannot do without them; it is therefore up to the mother to care for the child during the period of dependence. If the child has no mother or if it has one who is unfit to carry out this duty, the duty shall devolve upon those female relatives of the child whom it is forbidden to the child to marry. The relative of mother’s side has priority over those on the father’s side; the mother’s mother is preferable to the father’s mother, the mother’s sister is preferable to the father’s sister, and the maternal aunt has priority over the paternal aunt. The condition is made that the woman who takes care of the child during the period of dependence shall be of sound mind, trustworthy, capable of looking after the child, that she shall not be distracted by other activity from caring the child and looking after its upbringing; and that she should not take the child to live with one who is of a different religion (ajnabi) from the child.[3]         

In regards to the duration of the mother’s custodial right over the child, the Qur’an is silent about this. Thus, various schools of law have various opinions concerning this matter as a result of their difficulties to identify the age periods of childhood. Consequently, the four Sunni schools differ on the time when such rights come to an end. In general, they agree that such a right terminates when the child reaches a certain age, however they differ on what should be the ideal age. According to the Sunni Islamic law, the period of minority of a male child is divided into two stages, each of which is characterized by certain features of growth and development. The first stage is from the birth of the child till he reaches its seventh year.[4] The second stage is from completion of seven years till the termination of minority. Based on this division, the Hanbalis, who do not distinguish between boys and girls, rules that the duration of custody for a child shall run from birth till the seventh year, upon which, the child shall be given the choice of preference of parent and the choice shall be respected.[5]  In other words, according to Hanbalis, during the first stage the right to custody of the child belongs to the mother and after child has attained its seventh year, the right of custody belongs to the father, subject of course to the consideration of the welfare of the child, hence at that age the children have to be educated and require such protection. They argue that there is some evidence that at seven years of age, the child has the ability to discriminate, and is able to choose either parent as the ideal person to grow up with.[6]        

At seven years of age, according to Shafi‘i law, is not the age of puberty and to divide childhood into two periods as mentioned above may lead readers to adopt the notion that a child suddenly becomes a different individual on completion of seven years. In fact, according to Shafi`i school, the characteristics of one period to another is different from one child to another. Therefore, for the well-being of child, Shaf`i school rules that the right of custody of child during the whole period of minority belongs to the mother continuing until the infant reaches the age of discretion and is assumed capable of choosing, which parent to live with. If the boy chooses his mother, he shall stay with her for the night and spend the day-time with his father, who undertakes his education. The girl who opts for her mother shall live with her day and night. To be fair, lots shall be drawn between the parents if the child opts for both. If the child remains silent, the child shall stay with the mother.[7]