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Custody of a child whose mother married a Shi’ah

Fatwaa ID: 2192

Question:
Assalamualaikum mufti sahab ..

My question is…if a sister got divorced from her halal mariage (both spouses sunni) and has a daughter who lives wd her…now she desyded to settle and gt marryd to a shia….is it allowed for her to stay with her or should d daughter move back to her biological father??

Answer:
In the Name of Allaah, the Most Gracious, the Most Merciful.
As-salaamu ‘alaykum wa-rahmatullaahi wa-barakaatuh.

In principle, a mother loses her right to custody of a child once she marries someone that is not a biological mahram to the child. In the case where she marries a Shi’ah, then a fortiori she would lose her right. No exceptions will be made to this.

That being said, the minor child would not go to the biological father by default. The right of custody after the mother will be in the following sequence, and this will be until the child is able to carry out essential matters on his own: maternal grandmother, paternal grandmother, sisters, maternal aunts and then paternal aunts. In their absence, an upright Muslim lady will be identified. If all of the above refuse or do not qualify, then the father would have the right of custody. In the enquired situation, we advise that the family consults a competent local scholar to resolve the matter.

It should be noted that it is not permissible for a Muslim to marry a Shi’ah. The nikaah in most cases would be invalid and he/she would be living a life of zina.

And Allaah Ta’aala knows best.
Mufti Muajul I. Chowdhury
Darul Iftaa New York
https://askthemufti.us/

08/21/1445 AH – 03/02/2024 CE | 906

وصل اللهم وسلم وبارك على سيدنا محمد وعلى ءاله وصحبه أجمعين

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