If one of the parents converts to Islam, who will the child belong to?? .. A quick and easy solution

 If one of the parents converts to Islam, who will the child belong to?? .. A quick and easy solution

Ibrahim bin Musa Al-Razi told us Isa told us Abdul Hamid bin Jaafar told us my father told me on the authority of my grandfather Rafi bin Sinan that he converted to Islam and his wife refused to convert to Islam so she came to the Prophet, may God bless him and grant him peace, and said my daughter and she is weaned or something similar and Rafi said my daughter the Prophet, may God bless him and grant him peace, said to him sit to the side and he said to her sit to the side and he said and sat the girl between them then he said call her so the girl leaned towards her mother so the Prophet, may God bless him and grant him peace, said O God guide her so the girl leaned towards her father so he took her
Sunan Abi Dawood .. Book of Divorce .. Chapter If one of the parents converts to Islam with whom the child is
http://hadith.al-islam.com/Display/Display.asp?Doc=4&Rec=2679

Reply:

.

I really don't know what the objection is!... A dispute over custody occurred between a man who converted to Islam and his wife who remained a disbeliever... Then the Messenger of Allah (  peace and blessings of Allah be upon him) called upon his Lord, and He answered him, and made the girl incline toward her Muslim father... So what is the problem then?

.

It was mentioned in this hadith that a dispute related to custody occurred before the Prophet (peace and blessings of Allah be upon him) between two parents, one of whom was a Muslim, who was the father, and the other was a disbeliever, who was the mother. They disputed before the Prophet (peace and blessings of Allah be upon him) regarding their two daughters, and the Prophet (peace and blessings of Allah be upon him) gave the girl the choice between the two parents, and she chose the mother, who was a disbeliever . So the Prophet (peace and blessings of Allah be upon him) said: O Allah, guide her, meaning show her to the right path, so Allah answered the prayer of His Prophet (peace and blessings of Allah be upon him), and she chose the Muslim father . This indicates that keeping the child under the care and custody of a disbeliever is contrary to the guidance of Allah (the Most High ). Because the purpose of custody is to raise him and protect him from harm, and the greatest upbringing is to preserve his religion, and the most important defense of him is to keep disbelief away from him.
If he is in the custody of a disbeliever, he will tempt him away from his religion and take him out of Islam by teaching him disbelief and raising him on it, and this is the greatest harm, and custody is only established to protect the child, so it is not prescribed in a way that will destroy him and destroy his religion . Source : It was stated in “Sharh Sunan Abi Dawood li-Ibad” (257/17): “He should be with the one who converted to Islam from among them, because Islam is preferred over others, and his being attached to a Muslim so that he becomes a Muslim and remains a Muslim is more appropriate than attaching him to a disbeliever who will associate him with disbelief and raise him on disbelief, as it was stated in the hadith: ( Every child is born in a state of fitrah, then his parents make him a Jew or a Christian ) so they are moving him away from the fitrah by their false call to disbelief, God forbid. The ruling is that if one of the spouses converts to Islam and they have a child, then he is subordinate to the Muslim of the two of them. If the Muslim is the father, then he is attributed to him, and if the Muslim is the mother, then he is attributed to her, and he is not attributed to the disbeliever. Abu Dawud reported the hadith of Rafi’ ibn Sinan (may Allah be pleased with him): He converted to Islam but his wife refused to convert to Islam, and there was a little girl between them who was being weaned, so he put each of the parents on one side and put the girl between them, and asked them to leave her, but she leaned towards her mother, so the Prophet (blessings and peace of Allah be upon him) said: “ O Allah, guide her ,” and she leaned towards her father. This indicates that whoever of the parents converts to Islam is the one to whom his child is attributed, whether it is the mother or the father, and Islam is given precedence over anything else so that the child will be a Muslim and not a disbeliever . The Prophet (blessings and peace of Allah be upon him) gave the girl this choice in order to see who she would be attributed to, but he asked Allah to guide her and He guided her. This indicates that the son follows the Muslim and does not follow the disbeliever, because if the intention was that he would be with either of them, then the matter would have been left as it is. But he prayed for her guidance while she was a young girl who did not understand, so God Almighty guided her to join her father. This indicates that Islam is preferred over anything else and that joining him is more appropriate than joining anyone else, so that this child would attain Islam and not attain disbelief through that disbeliever raising him and making him a Jew or Christian if that disbeliever was a Jew or a Christian .” . . And it says in “Manhat al-‘Alam fi Sharh Bulugh al-Maram” (8/200):















“This hadith was used as evidence by those who said that custody is established for the non-Muslim mother after separation, even if the child is Muslim. The evidence is that if the mother had no right to custody because of her disbelief, the Prophet (peace and blessings of Allah be upon him) would not have kept the child between them. This is the opinion of the Hanafis and Malikis. They said: Because the basis of custody is compassion, and it does not differ according to religion.
The second opinion is that the non-Muslim mother has no custody. This is the opinion of the Shafi’is and Hanbalis.
They used as evidence that custody is guardianship, and the texts of the Shari’ah indicate that a non-Muslim does not have guardianship over a Muslim. This is because his mother may tempt him away from his religion, teach him disbelief, adorn it for him, and raise him in it. This is the greatest harm. If the purpose of custody is to protect the child and his welfare, then how can it be legislated in a way that would lead to his destruction and the destruction of his religion
?!
”

It is stated in “Sahih Fiqh as-Sunnah wa Adillatuhu wa Tadheeh Madhahib al-A’immah” (3/418):

The jurists stipulated conditions for custody that must be met, otherwise her right to custody is lost. Here are these conditions with comments on them:
1, 2 - Sanity and maturity: There is no custody for a mentally retarded, insane, or minor, even if he is discerning, because they need someone to take care of them and care for them, so they do not take care of someone else.
3 - The agreement of the guardian and the one being sponsored in religion: There is no guardianship for an infidel over a Muslim, for two reasons:
The first: The guardian is keen to raise the child according to his religion, so it is difficult for the child to change from it afterwards, and this is the greatest harm that befalls the child, which is what the Prophet - may God bless him and grant him peace - stated when he said: “ Every child is born in a state of fitrah, then his parents make him a Jew, a Christian, or a Zoroastrian .” (2) So the child’s religion is not safe if the guardian is an infidel.
Second: That custody is guardianship, and God Almighty said: { And God will never grant the disbelievers a way over the believers } (3). Therefore, it has been established that if one of the parents converts to Islam, the child is with the Muslim among them. This is indicated by the hadith of Ibn Abbas - may God be pleased with them both - who said: “ My mother and I were among the weak: I was among the parents and my mother was among the women ” (4), meaning: in the migration. He said:
____
(2) Sahih: Narrated by Al-Bukhari (6599) and Muslim (2688).
(3) Surah An-Nisa: 141.
(4) Sahih: Narrated by Al-Bukhari (1357) in

“Sahih Fiqh As-Sunnah Wa Adillatuhu Wa Tadheeh Madhahib Al-A’immah” (3/419):
Al-Bukhari: “ His father was not of the religion of his people .” This is from his understanding - may God have mercy on him - and its basis is that Al-Abbas converted to Islam after the Battle of Badr, as Al-Hafiz preferred in Al-Fath (3/261).
And on the authority of Rafi’ bin Sinan: That he converted to Islam and his wife refused to convert to Islam, so she came to the Prophet - may God bless him and grant him peace - and said: My daughter, and she is weaned - or something similar - and Rafi’ said: My daughter, so the Prophet - may God bless him and grant him peace - said to him: “Sit to the side,” and he said to her: “Sit to the side,” and he said: And he made the little girl sit between them, then he said: “Call her,” so the little girl leaned toward her mother, so the Prophet - may God bless him and grant him peace - said: “ O God, guide her ,” so the little girl leaned toward her father, so he took her (1).
Ibn al-Qayyim (2) said: “This indicates that her being with an unbeliever is contrary to the guidance of God that He wants from His servants .” End quote.
4 - The ability to raise children: There is no custody for a blind, sick, paralyzed woman or something similar that would cause harm to the child and lead to his neglect and loss.
5 - That the mother is not married: According to the saying of the Prophet - may God bless him and grant him peace - in the previous hadith: “You are more entitled to him as long as you do not remarry” (3). Ibn al-Mundhir reported the consensus that if the mother remarries, her right to custody is lost, but al-Hasan al-Basri (!!) and Ibn Hazm disagreed with this, as it is the opinion of the majority in any case and is supported by the text of the hadith.
Is it a condition for the custodian - other than the mother - that she not be married to a stranger? Most scholars stipulated this based on the previous hadith, and because the child is treated harshly and with hatred, and because she is preoccupied with the right of the husband.
This is unlike if she is married to a relative who is a mahram to the child in custody.
I said: This is refuted by the hadith of Hamza’s daughter, as the Prophet, may God bless him and grant him peace, ruled that she should be given to her maternal aunt, who was the wife of her cousin Ja’far, and he was not one of her mahrams. It appears that the condition of not marrying a stranger is specific to the mother, as it is known that a divorced woman becomes very angry with her divorcer and those related to him. This may lead her to neglect her son from him with the intention of irritating him, and she goes to extremes in showing affection to the second husband by providing him with his rights. Thus, the hadiths come together, as stated by al-San’ani, may God have mercy on him (4).
____
(1) Hasan: Narrated by Abu Dawud (2244) and al-Nasa’i (3495).
(2) Zaad al-Ma’ad (5/460).
(3) Hasan: It was mentioned shortly.
(4) “Subul Al-Salam” (p. 1180)

“Sahih Fiqh Al-Sunnah Wa Adillatuhu Wa Tadheeh Madhahib Al-A’immah” (3/420):
6 - Justice (not being corrupt): There is no reason to consider justice and not being corrupt a condition for the guardian. If it were a condition, explaining this to the nation would be one of the most important matters, and we would have transmitted the implementation of it, because since Allah sent His Messenger - may Allah bless him and grant him peace - until the Day of Resurrection, the children of the corrupt are among them, with their upbringing, and no one will interfere with them despite their large numbers. It is not known that a child was taken from his parents or one of them because of his corruption. Then, custom bears witness that even if a man is corrupt, he takes precautions for his daughter and does not neglect her and he strives to do her good with all his effort (1). So this condition is invalid.
7 - Freedom: The majority stipulated it for the guardian. They said: Because the slave has no guardianship over himself, so no one else can take charge of him, and custody is guardianship.
Malik said about a free man who has a child from his female slave: “The mother has more right to him unless she is sold and transferred, in which case the father has more right to him.” He provided evidence for this with the general meaning of the hadith: “A mother shall not take care of him on behalf of her child” (2) and the hadith: “Whoever separates a mother from her child, Allah will separate him from his loved ones on the Day of Resurrection” (3).
I said: This is correct because she is his mother and the Prophet, may Allah bless him and grant him peace, said to the mother: “You have more right to him as long as you do not remarry.”
Therefore Ibn al-Qayyim, may Allah have mercy on him, said: As for the condition of freedom, there is no evidence that the heart can accept. End quote.
Is the custodian required to receive a fee for custody?
The custodian is not entitled to a fee for custody if she is the wife or the one observing the waiting period of the father of the child during the waiting period, nor is she entitled to a fee for breastfeeding, if both are religiously obligatory upon her, and because she is entitled to maintenance during the marriage and the waiting period, and this maintenance is sufficient for custody. God Almighty said: {Mothers shall breastfeed their children for two complete years for whoever wishes to complete the nursing. And the father of the child shall provide for them and clothe them on equitable terms.} (4).
After the waiting period has passed, she is entitled to the nursing fee because it is a fee for work such as breastfeeding. God Almighty said: {Then spend on them until they give birth. But if they breastfeed for you, then give them their payment.
____
(1) “Zad al-Ma’ad” (5/461), “Subul al-Salam 10” (p. 1178).
(2) Weak: Narrated by Al-Bayhaqi (8/5).
(3) Hasan: Narrated by Al-Tirmidhi (1283), Ahmad (5/412), Al-Darami (2/227), and Al-Hakim (2/55) who authenticated it.
(4) Surah Al-Baqarah: 233 {

And enjoin between you what is right. And if you disagree, then another woman shall breastfeed him} (1). Likewise, the custodian other than the wife is entitled to a fee for custodial work in return for her doing some work, in addition to the fee for breastfeeding and child support (2).
End of the custody period and its consequences:
If the child no longer needs service and reaches the age of discernment, and is able to fulfill his basic needs alone, such as eating, drinking, clothing, etc., then his custody period ends. There is no specific age for this dispensation, so the judge is left to determine this age according to his assessment of the child’s condition and interest (3)
_________
(1) Surat At-Talaq: 6
(2) “Ibn Abidin’s Commentary” (2/876).
(3) Egyptian law stipulates that the right of custody ends when the boy reaches the age of seven, and the girl reaches the age of nine