Follow up question on custody
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I was reading the hanafi forum correspondence of the custody of children. I’m a little confused on an answer that you gave. Listed is what you wrote:
“3. If the mother marries a person who is not a mahram [marriageable kin] relative of the child, i.e. this relative is such that nikâh [Ar. of the child] with him is not harâm forever, then the mother forfeits the right of custody over the child. However, if the woman marries a mahram relative of this child, and this relative is such that nikâh with him is not valid (for the child), e.g. she marries the child's paternal uncle or any other similar relative, then the mother's right of custody remains. In the absence of the mother, if any other woman such as the child's sister, maternal aunt, etc. marries a ghayr mahram man (i.e. to the child), the same rule will also apply. That is, the right of custody over the child no longer remains with this woman.”
How is the mother’s new husband not a mahram over her children? The new man who is married to the mother is obviously a mahram now by virtue of being married to the mother. Correct? Look at the reference in the qur’an surah nisaa ayat 23. It is listed that you can not marry the children of a woman who you have married and have had intercourse with. Therefore, if I marry a woman who has children before me, I become a mahram for her children. Please explain.
Answer
Assalamu alaykum Brother,
Sorry I have been attending some programs our of town and got back a few days ago, hence the delay in your answer.
What the fiqh books state regarding the mahram is that it should be a blood mahram and not a mahram through marriage (i.e. husband) that the women needs to be married to retain her custody rights.
Hence, although the husband does become a mahram in the sense that nikah is haram with him for the daughter once he consummates the marriage with the mother, he is not a mahram by blood to her like a paternal or maternal uncle or grandfather.
This clarification should have been made in the original response. Ibn Abidin has also pointed this out in his footnotes on the al-Durr al-Mukhtarwhich I noticed later. Hence, if the mother marries someone who is not a mahram to her child and also related by blood and decent to her then she loses custody rights.
And Allah knows best.
Wassalam
Abdurrahman Ibn Yusuf
This answer was published by SunniPath and is preserved as written. Rulings can depend on circumstances; for your own situation, consult a qualified scholar.
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