Question: Who has the first right to custody of a child after divorce?
Answer:
If the husband and wife are divorced however they have a minor born out of the terminated marriage. The mother of the child has the right of custody over the child. The father cannot take this child away. This right is known as right of hizanat and it can be enforced against the father or any other person. However, the father will have to pay for all the expenses that will be borne in order to bring up the child. If the mother does not take the child, and instead, gives it to the father, he will have to take it. The mother cannot be forced to keep the child.
Among the Hanafis, it is an established rule that mother's right of hizanat over her son terminates on the latter’s attaining the age of 7. The Shias hold the view that the mother is entitled to the custody of her son till he is weaned. Among the Malikis the mother's right of hizanat over her son continues till the child has attained the age of puberty. The rule among the Shafiis and the Hanabalis remains the same. Whereas among the hanafis the mother is entitled to the custody of her daughters till the age of puberty and among the Malilikis, Shafiis and the Hanabalis the mother's right of custody over her daughters continues till they are married. Under the Ithna Ashari law the mother is entitled to the custody of her daughters till they attain the age of 7
