Question # 157: If my first husband’s children living with me is it my responsibility to provide food and home or it’s their father responsibility? Even they are living with their divorced mother from dad? I mean their food, home and expense?
Bismi-llahi r-raḥmani r-raḥīm,
Assalamu ‘laikum warahmatullahi wabarakatuh,
All praise and thanks are due to Allah (سبحانه و تعالى), and peace and blessings be upon His Messenger (صلى الله عليه و سلم).
First of all, we implore Allah (سبحانه و تعالى) to help us serve His cause and render our work for His sake.
Shorter Answer: On divorce, custody of the children belongs to the mother, till they reach the age of discernment. After that age, they should be given the choice between their parents. If one of the parent is of bad character and not very religiously committed, then the custody should remain with the parent who will best serve the interest of the children and not neglect their rights. However, if the mother re-marries, she forfeits her right to custody of her children, and they go back to their father.
The maintenance of children is the duty of the father; the mother is not obliged to spend on the children, when their father is still alive. Maintenance of children includes providing accommodation, food, drink, clothing and education, and everything that they need, on a reasonable basis, depending on the father’s circumstances, until they become independent and can earn themselves. However, according to Shaykh Ibn Taymiyyah, if the mother takes the children in her custody and supports them and agrees with her former husband on this matter, she does not have the right to demand for financial support according to the unanimous agreement of Muslim scholars. If she wants to demand for financial support in the future, although such an agreement is a controversial point among scholars, it is binding according to Malik.
Long Answer: In al-Mawsoo’ah al-Fiqhiyyah, it says: “Custody of children belongs to both parents, if they are married. If they separate, then custody belongs to the child’s mother, according to scholarly consensus, because of the report of a woman who came to the Messenger of Allah (صلى الله عليه و سلم) and said: O Messenger of Allah, this son of mine – my womb was a vessel for him, my lap was a haven for him and my breasts gave him milk, but his father says that he is going to take him away from me. He said: “You have more right to him so long as you do not get married.” (Narrated by Ahmad and Abu Dawood; classed as hasan by al-Albani in Sahih Abi Dawood, and classed as sahih by Ibn Kathir in Irshaad al-Faqeeh)
Therefore, the mother has more right to her children – if they are below the age of discernment… Once the children reach the age of discernment, they should be given the choice between their parents. This applies if the father and mother are equal in terms of religious commitment and good character. If one of them is of bad character and not very religiously committed, he or she should not be given the right of custody, because what counts is, what is in the best interests of the child, and the interests cannot be served with one who will neglect the child’s rights. This is what is indicated by the ahadith and this is what was mentioned in fatwas by the most prominent scholars.
Shaykh Muhammad ibn Saalih al-‘Uthaymeen (may Allah have mercy on him) said: “It should be noted that with regard to this matter, attention must be paid to the child above all else. If going with one of them or staying with one of them will cause harm to his religious or worldly interests, then no approval should be given to one who will not protect him or take care of his interests, because the basic purpose of custody is to protect the child from that which will harm him, and to look after his interests” (Al-Sharh al-Mumti’)
However, if the mother re-marries, she forfeits her right to custody of her children, according to scholarly consensus and the children go back to their father. It was narrated from ‘Abd-Allah ibn ‘Amr (رضي الله عنه) that the Prophet (صلى الله عليه و سلم) said to a woman who sought custody of her child from her husband: “You are more entitled to him so long as you do not get married.” (Narrated by Abu Dawood in his Sunan; classed as hasan by Shaykh al-Albani in al-Silsilah al-Saheehah)
The maintenance of children is a duty of the father, according to scholarly consensus, whether he remains married to his wife or divorces her, and whether the wife is poor or rich. She is not obliged to spend on the children when their father is still alive… Maintenance of children includes providing accommodation, food, drink, clothing and education, and everything that they need, on a reasonable basis, depending on the husband’s circumstances, because Allah (سبحانه و تعالى) says in the Qur’an: “Let the rich man spend according to his means; and the man whose resources are restricted, let him spend according to what Allah has given him. Allah puts no burden on any person beyond what He has given him. Allah will grant after hardship, ease” (Soorah al-Talaaq, 65:7) [It is the duty of the father to support his children until they become independent and can earn themselves.]
(The above reply is based on various answers by Shaykh Muhammad Saalih al-Munajjid on the topic)
[However,] so long as [the mother] took the [children] and she supports [them] and agreed with her former husband on this matter, she does not have the right to demand for financial support according to the unanimous agreement of Muslim scholars. Yet, if she wants to demand for financial support in the future, the father has the right to take the [children] back and she is not to take [them] under her custody. If they agreed that she would have the [children] and support [them], is such an agreement binding? This is a controversial point among scholars. According to Malik, it is binding. Therefore, it is permissible to make such agreement. (‘Fatwas of Muslim Women’ by Ibn Taymiyyah)
Allahu A’lam (Allah (سبحانه و تعالى) knows best) and all Perfections belong to Allah, and all mistakes belong to me alone. May Allah (سبحانه و تعالى) forgive me, Ameen.