Child Custody: Between Women's Queue and Father's Priority?

1. The Minister of Justice has submitted a bill to amend certain provisions of the Personal Status Law. We will focus on a single issue concerning custody, as the proposed amendment places the father immediately after the mother in the custody hierarchy. This amendment stems from the frequent disputes before courts regarding this matter. The legislator in the current Kuwaiti Personal Status Law No. 51 of 1984 determined in Article 189 the order of persons entitled to the custody of a minor in the event of a dispute between spouses due to divorce. The article establishes a sequence for those who follow in custody: the mother, then her mother (the maternal grandmother, if alive), then the minor’s aunt (father’s sister), then the aunt (mother’s sister), then the aunt (mother’s sister), then the paternal grandmother, and finally the father. This order may vary in precedence depending on the legal school, but the prevailing opinion among the majority of jurists is that the father comes after a long list of waiters. The law, since its enactment forty years ago, failed to recognize the danger that could threaten the child as he moves from one person to another while his father is still alive. Why was the father placed in the seventh, eighth, or ninth position among those entitled to custody? The Egyptian, Syrian, and Lebanese laws also granted custody to women, though the order may differ. In France, however, the father’s role has been strong from the outset, with custody shared between the mother and the father.

2. This order has been criticized. I previously addressed it in an article published in the Kuwaiti newspaper Al-Watan on September 8, 1988, a few years after the law’s enactment. In it, I criticized the delay in the father’s ranking for his child’s custody, watching his child move from one person to another. The reason for the article was that I witnessed a dispute between a father and his deceased wife’s mother (the maternal grandmother), to whom custody had legally passed. The father was astonished and shocked by the court’s ruling, as he believed he was first in line for this right because he was the child’s father. The judgment only deepened his astonishment, as it rejected his claim based on the explicit text of the law.

3. Let us briefly return to what was stated in the explanatory memorandum for Article 189 of the law. “Custody of the minor refers to his upbringing, care, and provision for his food, clothing, and affairs.” It adds that it was narrated that a woman came to the Messenger of Allah (peace be upon him and his family), disputing with her husband who had divorced her regarding the custody of their child. He said to her, “You are more entitled to him as long as you do not remarry.” In Al-Mabsut in Hanafi Jurisprudence by Al-Sarakhsi, it states: “Since children are weak, the Sharia granted guardianship to those who have compassion for them. Thus, it granted the right of management to fathers and the right of custody to mothers.” In the definition by the author of Al-Lam’a al-Dimashqiyya in Ja’fari jurisprudence: “Guardianship over a child or an insane person for their benefit, i.e., for the purpose of their upbringing and protection.” As jurists say, the purpose of custody is the preservation of the child. It is a guardianship of care that is not established if it causes harm. Harm may occur when the child moves from one custodian to another, while the father is deprived of his custody and care. The Maliki school and the majority of jurists hold that custody passes from the mother to women, which is what the Personal Status Law adopted in Article 189.

4. If this is purely a result of juristic reasoning (ijtihad), then ijtihad may change over time. The core of the matter is a dispute between a mother and a father regarding who should have custody of the child. The Prophet (peace be upon him and his family) ruled in favor of the mother on the condition that she does not remarry. Consequently, this right reverts to the father. The Prophet (peace be upon him) did not say that the right of custody reverts to a third party, such as the grandmother or the aunt, and so on. Especially since the Prophet conditioned this right on the mother of the child not marrying. The grandmother, aunt, or others may be married, which is the impediment to the continuation of the mother’s custody.

5. If the custody ruling remains in this manner, its transfer to the father becomes virtually impossible, and can occur only when the boy reaches puberty or the girl marries, as stipulated in Article 194 of the Law. This ruling is derived from the jurisprudence of Imam Malik. The majority of jurists hold that the age at which custody transfers to the father ranges from the age of discernment for boys—between seven and nine years old—and for girls, between nine and eleven years old, i.e., upon their natural puberty. Followers of the Imami school maintain that the father ranks immediately after the mother, according to a specific order. The Jordanian Family Law and the Iraqi Personal Status Law have adopted the principle of prioritizing the father over others in assuming custody in the event that the mother’s custody rights lapse. Ultimately, custody revolves around the best interests of the child, meaning whoever is closer to promoting their welfare.

6. We consider that the position taken by His Excellency the Minister of Justice regarding the amendment of the custody order is the closest to correctness. And God is the Bestower of success.