Assalaamu alaikum – While we were married. my ex-husband refused to have any kind of intimate relations with me for years at a time, totally over 7 years of celibacy within marriage. Now that we went through divorce we are sharing custody of the kids according to US law. If I remarry, as I understand from some fatwas I read, I would lose custody of the kids under Islam. I have 2 main questions: 1) This is related to the harm and un-Islamic nature of celibacy. How can I balance the rights of my children on me and my love and devotion to them as a mother with my duty to preserve my chastity, protection and dignity as a woman in the sunnah way of marriage? I don`t understand this no-win situation. It does not seem fair that I was forced to live as a spinster within marriage and now I am forced into spinsterhood again after divorce, or lose my kids. Not only spinsterhood, but this means I cannot have a chance to have a muslim mahrem. I am a revert to Islam and don`t have muslim family. First of all, I thought no woman should be harmed on account of her children. Living this celibate llife for so long with no hope for marriage is a harm. I also thought deliberate celibacy is not sunnah. Also, in Quran (4:110) Allah subhanahu says what means: “Forbidden to you (for marriage) are…your step-daughters under your guardianship….” Is Allah subhanahu`s meaning in this ayah limited only to the step-daughters of men married to widowed women only? Is there no way it could mean step-daughters of men married to divorced women? There is a hadith often quoted which says upon remarriage women do not have more rights to custody than the father. Couldn`t that hadith also mean that after her remarriage the mother and father now have equal claim? As I read, Ibn Hazm`s opinion was that the custody is in the hand of the mother regardless of whether or not she remarries. I have heard some learned people say that the ex-husband/father can object to the new husband and demand custody only on the basis that the new husband is unsuitable according to legitimate shariah reasons of his unsuitability of character. 2) If I were to re-marry and my ex-husband objects on Islamic grounds, what happens practically speaking? Am I not allowed to spend time with them? Can he forbid the children from visiting me and my new husband? Wouldn`t my new husband be their mahrem after the marriage was consumated? What are my rights with respect to them and their rights with respect to me? If their father has custody of them during the week, he would have to hire a nanny to mind them or re-marry a woman to replace my function. How can someone else be preferred over their own mother? I thought the mother has such a high status. How can she be sold so cheaply? I have not remarried, nor am I am engaged nor am I talking to anyone about marriage, but I have a lot of confusion and heartache about these issues. Jazakum Allahu khairan for your knowledge.
All praise be to Allah, and may his peace and blessings be on the last prophet and messenger, Muhammad,
According to AMJA’s Family Code:
“The mother is most entitled to the physical custody of the youngster by unanimous agreement of the scholars. Her getting married does not disqualify her from being the custodian when the child is in the period of nursing, or will be harmed by separation from her, or suffers from some handicap that makes his physical custody difficult for other than the mother … When the child becomes sick, the mother is more entitled to caring for him or her if she is competent in doing that.”
Also, when a parent is granted the physical custody, the other parent will always have the right to seeing their child.
According to AMJA’s Family Code:
“When the child is in the custody of one parent, the other is entitled to visiting him/her, being visited by him/her, and meeting him/her according to a mutual agreement between them. However, the parents must be careful to avoid being alone together after divorce has made them foreign to one another. If they dispute, the matter is referred to a judiciary which will determine windows of visitation, and set the time and place in a fashion that will prevent loop-holing in its execution as best as possible.”
As for the mother losing her superior right to custody upon marrying a man who is not a mahram (unmarriageable kin) to the child, it is a controversial matter. The four imams said she would lose it to women on her side of the family (according the stronger position) because the Prophet (SA) said:
“ أَنْتِ أَحَقُّ بِهِ مَا لَمْ تَنْكِحِي ”
“You have more right to him as long as you do not marry.” (Abu Dawood)
This was when a woman approached him and said, “O Messenger of Allah, my womb was a vessel for this son of mine; my breasts served as a water-skin for him, and my lap as a cradle. Yet his father has divorced me and wants to take him away from me.” This hadith was reported through a controversial chain that is accepted by most Hadith scholars; it is that of ‘Amr ibn Shu‘ayb from his father, from his great-grandfather. Ibn Hazm did not accept the hadith and did not act upon it, so he gave custody to the mother, regardless of her marital status, for both genders until they reached puberty. This was also reported from ‘Uthmân and al-Hasan al-Basri.
Keep in mind that this is only in case of dispute. If the father agrees to leave the child with the mother after her marriage, then she may keep him or her. Finally, the judge will use discretion – in light of the above principles – to determine what is in the best interest of the child, as indicated by Ibn Abideen (rA) and others.
Celibacy is not condoned in Islam, and by avoiding intimacy with you, your husband was extremely unfair to you. Allah is the best judge.
Allah knows best.