SHARIAsource

Translated, this fatwā reads as follows:

Number: 35

According to Islamic law, which of the spouses, who are separated because of incompatibility and by divorce, has the right to protect, educate and restrain their child?

Answer: According to Islam, the right to protect, educate and restrain these children belongs to the mother until the boy reaches the age of 7, and the girl 9.

See also in Kitab-ı Fıkhiyye.

23 November 1992 

Mufti of Komotini

(Seal and signature)

A Maryland court ruled that Sharīʿa Court lacked jurisdiction in a custody case since the couple never resided in the jurisdiction of the Sharīʿa Court. 

This Supreme Court jurisprudence states that the primary consideration with regards to child maintenance is the welfare and interests of the child. Moreover, a child under the age of seven years, whose mother travels overseas frequently, and who is happy and content with his father, should be placed in the care of his/her father.

The parties were married on 5 May 2012 and had one child, who was currently in the care of the plaintiff. On 26 January 2016, the parties had divorced, after which time they had agreed that their child would remain in the care of the plaintiff. In this instance, the plaintiff, in order to alleviate certain difficulties already encountered while trying to enrol the parties' child for school, had lodged an application to amend certain documents. These included the parties' child's family card (Kartu Keluarga) and national identity number (Nomor Induk Kependudukan).

Despite the defendant's absence, the court, pursuant to art 105(a) of the Compilation of Islamic Laws, acceded to the plaintiff's application on the grounds that the parties' child was still underage.

In this case, the New Jersey Superior Court, affirming the decision of the lower court, noted that the mother's allegations of the probability of her ex-husband's taking and abducting their child, whose custody belonged to the mother, to Lebanon was baseless. While the mother's fears were recognized as being "genuine," the Court nevertheless ruled that fear alone, which remained unsubstantiated, was not sufficient to deprive the non-custodial parent of his right to visitation. 

The case concerned a couple married in the United States according to Islamic law, who had a child custody dispute. The mother, among other things, contended that she should have custody as East Jerusalem, where the husband resided, had become dangerous.  The father filed a claim for custody in the Sharia Court of Israel. The Massachusetts Appeals Court remanded the case to the probate court for further consideration, including the issue of whether it had jurisdiction in the matter, thus not engaging any substantive issues related to Islamic family law.

The applicants were married on 23 August 2013 but had no children of their own. They applied to the court to be granted legal custody of Muhammad Daud bin Bukhari (DOB: 2 February 2002), whom they had cared for and raised since the age of 2.

In its decision, the court acknowledged that the applicants had already cared for and raised the child from an early age, and that they had given him his name. Using its vested power, pursuant to art 49 of Law No. 3 of 2006, as well as figure (20) of the elucidation therein, the court acknowledged that it was authorised to adjudicate applications for child adoption. Moreover, it cited surat Al-Ahzab, verses 4 and 5, in support of the adoption of children in need, but not at the expense of forgetting their own biological lineage. Pursuant to art 39(1) and (2) of Law No. 23 of 2002 on Child Protection, in conjunction with art 12(1)(a)-(d) and (2)(a), as well as art 13(a)-(i) and (l) of Government Regulation No. 54 of 2007 on the Implementation of Child Adoption, the court acceded to the applicants' request to be granted lawful custody of the child. Their application was also assented to by the child's biological mother (his biological father had already passed away).

In this case the Indiana Court of Appeals affirmed the child custody arrangement of the lower court, which had given custody to the mother and visitation rights to the father. The Court of Appeals, in affirming this decision, noted that the father was also a citizen of Egypt, a country not party to the relevant Hague Convention on child custody and abduction, making it likely impossible or very difficult for the mother to see the child, in the event custody is granted to the father, who could then abduct the child to Egypt. The Court, apart from this, did not engage in substantive Egyptian law, nor in any Islamic law.

In this case, the Court of Appeals of South Carolina, while remanding the case for further proceedings on the matter of child custody, affirmed the relevant part of the lower court's decision restricting the father's right to visit his home country, Iran. The Court relied on the fact that the husband had threatened the wife of abducting their child, and also the fact that the third country in question was not a signatory to The Hague Convention, making it difficult to remedy the situation in the event abduction occurred.

The parties were married on 9 December 2004 and had two children. The applicant submitted that on 12 November 2012 the respondent had left the parties' home taking with her 30 grams of gold that belonged to the applicant's aunt. Twelve days later, the respondent's father came to the applicant's home saying that the respondent had returned to his home, but that the respondent had not confessed to taking the applicant's aunt's gold. The respondent refuted the reason she left home, stating that she had been told to leave by the applicant's cousin and that even the applicant's aunt had directed profane language at her, leaving her with no option but to leave. Since then the applicant and respondent had been separated for 22 days. The applicant conceded that the respondent's family had tried to make the parties reconcile, but to no avail.

As a counterclaim, the respondent sought custody of the children as their mother, as well as IDR 500,000 in child support from the applicant, per child, per month. The respondent also sought a further IDR 1,200,000 in back-dated maintenance fees.

In response to the respondent's counterclaim, the applicant submitted that the respondent was unfit to take care of the children, that he would not pay the requested child support if the children were in the respondent's care, and that the back-dated maintenance fees were not payable because the respondent had left him with their two children.

The court granted the applicant a revocable divorce (talak satu raj'i) on the grounds of ongoing conflict, pursuant to art 19(f) of Government Regulation No. 9 of 1975, and art 116(f) of the Compilation of Islamic Laws. Pursuant to art 105(a) of the Compilation of Islamic Laws, however, the court granted custody of the children to the respondent as they were under the age of discernment (mumayyiz) or under the age of 12, while ordering the applicant to pay to the respondent child maintenance of IDR 300,000 per month, until the children become of age.

The parties were married on 2 October 2003. The applicant had two children from his previous marriage, and the respondent had three from hers. They also had two children of their own. The applicant submitted that the marriage had only been harmonious for a year before it had become quarrelsome. This was because, the applicant maintained, the respondent would become emotional towards the applicant and undervalued him as her husband. For example, if the applicant returned home late, the respondent would become angry and verbally abuse the applicant, in public and behind closed doors. The respondent had also once thrown her slippers and a rock at the applicant while verbally abusing him.

On 6 July 2012, the respondent, having never shown any affection towards the applicant's children from his first marriage, asked the applicant's children to leave the parties' home. As a result, the applicant was forced to find his own children a rental property. On 9 July 2012, during an argument, the applicant orally divorced the respondent, resulting in the parties separating. In requesting the court's permission to divorce (talak satu raj'i) the respondent, the applicant also submitted that the two children from the parties' marriage be placed in his care as the respondent was not a competent mother.

In response, the respondent submitted that many of the parties' problems were a result of the applicant's gambling addiction. While the respondent did not seek financial compensation for iddah (three-month period after divorce has been granted) or mut'ah (divorce compensation), she sought custody of the parties' two children, and an order that the applicant pay to her IDR 200,000 per month for child maintenance.

The court, pursuant to art 39(2) of Law No. 1 of 1974 on Marriage, art 19(f) of Government Regulation No. 9 of 1975, and art 116(f) of the Compilation of Islamic Laws, acceded to the applicant's request on the grounds of ongoing conflict. The court, however, granted custody of the parties' two children to the respondent, and ordered the applicant to pay to the respondent IDR 200,000 per month in child maintenance.

The applicants submitted an application for child adoption to the court stating that:

1. they were married on 3 January 2001;
2. they wished to adopt their neighbour's child, Muhammad Hashif Hasbullah;
3. they had already cared for the child since 10 January 2016;
4. their primary motivation for wanting to adopt the child was that the child was still their neighbour, and that they also wanted the child to maintain a connection with his mother;
5. the child's biological parents had already transferred temporary custody of the child to the applicants; and
6. their other motivation being that the child was their nephew.

The court cited art 39 of Law No. 23 of 2002 on Child Protection, stating that:

1. child adoption can only be carried out if it serves the child's best interests, and meets local customs and norms and current legislative regulations;
2. child adoption does not sever the child's blood connection with its biological parents; and
3. the prospective adoptive parents must be of the same religion as the child.

The court also acknowledged that these legislative requirements accorded with the Qur'an, Surat An-Nisa', verse 144, and a fatwa issued by the Indonesian Council of Ulama (U-335/MUI/VI/1982).

The court acceded to the applicants' request, finding that the applicants had met the legislative requirements to adopt the child in question.

The appellant sought to challenge Decision: 0011/Pdt.G/2014/PA.Bjw of the Bajawa Religious Court (lower court), which had acceded to the respondent's request to revocably divorce the appellant. The lower court had also ordered the respondent to pay to the appellant IDR 300,000 per month for the period of iddah (three-month period after which divorce has been granted), and granted custody of the parties' first child to the respondent. The lower court had also granted the appellant custody of the parties' third and fourth children, as well as ordering the respondent to pay IDR 200,000 per month in child support for the third child until the child had reached adulthood.

The court affirmed the decision of the lower court, but amended the decision in order that the respondent pay to the appellant at least IDR 500,000 per month for the maintenance of the parties third, fourth and fifth children.

The plaintiff submitted a claim for child maintenance from the defendant (her biological father), who was previously married to her biological mother from 1995-2001. Since September 2000, four months before her parents divorced, until the time of the proceeding, the plaintiff alleged that the defendant had not provided her with any financial support, either via her biological mother or directly. The plaintiff submitted that, from the age of 4-19 years, the defendant had neglected his financial obligations to the plaintiff, which the plaintiff quantified at IDR 1.5 million per month, or IDR 264 million in total for the past 14 years and eight months. The plaintiff also submitted that the defendant was obligated to provide her with IDR 2 million per month in financial support until she reached 21 years of age, and that as a university lecturer with a PhD, he earned sufficient income to afford these payments.

The defendant submitted an objection to the plaintiff's case on the grounds that the plaintiff's biological mother had unilaterally changed the plaintiff's name and altered her birth certificate, the new certificate having been issued on 11 January 2007. Meanwhile, the birth certificate the defendant had in his possession was a copy of the original (dated 8 February 1996). The defendant submitted that the effect of this alteration was that it was no longer clear who the plaintiff's actual biological father was.

As part of the defendant's primary defence, he submitted that, following his divorce from the plaintiff's mother, he had finalised all financial issues through deliberatons with the plaintiff's great-aunt (now deceased), as well as the matter of the custody of the plaintiff. At the time, the defendant had abided by the plaintiff's mother's wishes and allowed the plaintiff to remain in her mother's care until she was of an age where she could knowingly choose which parent she wished to follow.

The defendant also suggested to the court that it was more likely that the plaintiff's mother had instigated the claim, given that there had been no tension in the relationship between the plaintiff and defendant, as well as the fact that the parties had only recently reunited in September 2014 after more than 13 years apart. Moreover, the defendant's relationship with the plaintiff's mother had been fractured at best, meaning that the defendant had not known of the plaintiff's specific whereabouts, other than that she had been living with her mother and grandmother in Makassar. In short, the lack of communication between the defendant and the plaintiff's mother made providing the plaintiff with financial assistance logistically unfeasible. Indeed, when the plaintiff visited the defendant with her aunt at his residence for the first time in 13 years, the defendant happily provided the plaintiff with IDR 1 million, while the defendant's father (the plaintiff's grandfather) gave her IDR 500,000. The defendant informed the court that the plaintiff later requested IDR 8 million from the defendant to cover certain educational costs. As the defendant had only recently returned from completing postgraduate study in Yogyakarta at the time of the request, however, the defendant and his wife could only afford to provide the plaintiff with IDR 4 million, which the plaintiff had refused.

The court dismissed the defendant's objection on the grounds that the plaintiff's original birth certificate had never been declared null and void by the authorised agency, and, therefore, its legal authority remained intact.

In regards to the plaintiff's claim, the court noted the conflicting laws as to the legal age of an adult: while art 47(1) of Law No. 1 of 1974 on Marriage, as well as art 47(1) of Law No. 7 of 1989 on the Religious Judiciary, define an adult as someone who is 18 years of age, art 98 of the Compilation of Islamic Laws defines an adult as a person of 21 years of age. Meanwhile, customary law (hukum adat) stipulates 15 as the relevant age. In choosing to follow that legislation that defined the legal age as 18, the court thereby found that the plaintiff was already an adult as she was 19 years of age. In reaching its decision, the court considered that the plaintiff and defendant had been separated for 13 years, that the defendant and defendant's father had offered the plaintiff IDR 1.5 million collectively on their first meeting in 13 years, and that the plaintiff had refused to accept IDR 4 million from the defendant to cover educational costs. The court also cited Indonesian Supreme Court Decision No. 608 K/AG/203 (23 March 2005), where the Supreme Court declared that the obligations of a father to provide financially for his child were Lil Intifa rather than Lil Tamlik, that is, the obligation to meet a child's needs is shared by the child's parents, and therefore, does not rest solely on the father (art 77(3) of the Compilation of Islamic Laws; art 45(2) of Law No. 1 of 1974 on Marriage). Accordingly, back payments were not necessary as the child's past needs were assumed to have already been met. Pursuant to the defendant's concession that he was happy to provide the plaintiff with financial assistance, provided it was within his own means, as well as surat Al Baqarah verse 233, the court ordered the defendant to pay to the defendant IDR 2 million per month until she reaches 21 years of age.

A foreign Pakistani custody decree was entitled to comity because the Pakistani custody decree was based on the best interests of the children.

In this child custody dispute case between divorced parents who had married pursuant to Islamic law in Morocco, the court granted the defendant's motion and ordered that the child need not be sent back to the United States, as the child was taken abroad lawfully, under the laws of New Jersey and of the United States. In any event, and although the court did not consider Moroccan and Islamic law, the court ruled that international rules of comity would have dictated a similar conclusion.

In this case, the child custody dispute and the validity of the Iranian antenuptial agreement as well as attorney fees were the three issues of dispute between the spouses. The husband had dropped claims regarding custody and the validity of the Iranian contract, thus rendering the case one solely about attorney fees, with no consideration given to Islamic family and contract law.

This is the summary of Abouzahr v. Abouzahr 361 N.J.Super. 135.

The appellant sought to challenge the decision of the Banda Aceh Shari'a Court, which had granted the respondent an irrevocable divorce (talak satu ba'in sughra), placed the parties' child in the custody of the respondent, and ordered the appellant to pay child maintenance fees of at least IDR 500,000 per month until the child reaches 21 years of age.

The Court dismissed the appeal, finding no fault with the decision of the lower court.

The appellant requested that the Court order the Banda Aceh Shari'a Court to conduct an additional examination before passing its final judgment. The Court allowed this, however, the respondent was still granted an irrevocable divorce (talak satu bain sughra). The parties' child was also ordered to remain in the care and custody of the respondent.