In the name of Allāh,
the Beneficent, the Merciful.
Peace and Blessings of Allāh on Mohammad.
Allāh–the Glorious and the High,
Lord of the worlds
Mohammad–who brought the world
to our feet and eternity to our arms.
Allāh tells us to call children by the names of their fathers–(Qur’an 33:4-5).
That men are the maintainers of women–(Qur’an 4:34) seems to be the basis for the father having custody of a child, though a mother also can be financially capable of providing for herself and child. In fact, some women are higher wage-earners than some men. Also, her new husband, in the event of remarriage, could also be her (and her children’s) maintainer.
Aside from these exceptions, in Islam the burden of support lies on the father. While the father, seemingly, has first right to custody–(Qur’an 2:233), it does not seem mandatory that he take this position. Three compelling reasons for this are:
(1) As the home-maker, whereas a step-mother might be partial to another woman’s children, it is doubtful that a mother would be partial to her own children, even though they may be from many fathers. (True, a stepfather might be partial, but, generally, it is the mother who has more time with the children).
(2) We are to honor the womb that bore us–(Qur’an 4:1), and paradise lies at the feet of mothers. While one can honor his mother mentally in her absence, physically he cannot honor the womb that bore him and his paradise cannot lie at the feet of his mother if he is estranged from her; more so if geographic borders separate them.
(3) The Prophet is noted as saying, not to separate a mother from her child–(Tirmidhi # 979). Though interpretation of “child” may be open to discussion. As noted below.
One report in the Tradition notes the Prophet giving the mother custody of the child so long as she does not remarry–(Abu Dawud Vol. 2, p. 616, # 2269). Another reports the Prophet giving the child the right to choose which parent he wants to be with–(Abu Dawud Vol. 2, p. 617, # 2270). These two reports seem to convey that a young child be in the care of the mother and a child who can decide for himself has the option of choosing the parent he/she wishes to be with. This also seems to show that the child’s welfare is to be given first consideration.
There are some factors that need to be considered in a child custody case. In the matter of menstruation and other female topics a girl would be better served by her mother and in male matters a boy would be better served by his father.
Scholars have differing views regarding child-custody. There would seem to be several factors involved as to which parent should have custody and which should only have visitation rights –such as mental stability, parental fitness, financial means, social environment, (perhaps the experts can find more reasons).
As the child’s welfare is to be given first consideration, and as a divorce in Islam is expected to be an amicable affair–(Qur’an 2:229, 231) the mother and father are to be considerate to the other and both are to be given equal participation in the child’s life. This seems to be the requirement as expressed in Qur’an 2:233 which states in part: “…Neither shall a mother be made to suffer harm on account of her child, nor a father on account of his child.”
Significantly, after worship of Allāh service to parents is next in line–(Qur’an 17:23; 31:14)–and our mother deserves our service three times over before service to our father –she having carried us, gave birth, and nursed us. (Bokhari Vol. 8, # 2). But a child cannot serve his or her parents if he or she is alienated from either one.
As Shari’ah is based on the teachings of the Qur’an and Sunnah and as the Sunnah is based on the teachings of the Qur’an, and as there is no discrimination or injustice in the Qur’an whatever in Shari’ah that is the opinion of the Jurist(s) that discriminates is to be removed.