Parents and Children in Islamic Law

Parent-Child Relationship The parent-child relationship also falls under the concern of Islamic law.  This is clearly not a contractual relationship, as with marriage, but emerges through a natural event – the birth of a child.  The law puts the emphasis here clearly on the duties of the parents and the rights of the child, as opposed to the rights of the parents.  And between mother and father, emphasis is placed on paternity, which is always presumptive in a legal marriage, unless otherwise indicated.  The duties of parentage are bound to the legal notion of marriage.  You can be a legal parent only to legitimate offspring; offspring cannot be legal from an illegal or void marriage. 

 

Paternity A parent in Islam is either legitimate or illegitimate.  There is no process of legitimization, of legitimizing an illegitimate individual as a parent.  If a couple divorce, for instance, the child until a certain age generally remains under the care of the mother, since it is recognized that her duty is to care for the child; the father continues to provide maintenance for the child, as this is recognized as his duty.  However, if she remarries, her new husband can in no way be considered the legitimate father of the child, and no process can grant him this legitimacy.  In fact, at this point the child can be taken from the mother and given to its legitimate father.  However, in the case of a child whose father is not initially known, a man can claim paternity to the child, and be recognized as the legitimate father if no conditions are discovered to disprove his claim.  Paternity can therefore be determined by two methods:

1)       Presumptive Paternity A man may be deemed the father simply by virtue of being legally married to the mother, so long as the birth occurs at least 6 months after marriage.

2)       Acknowledged Paternity A man may be deemed father by his formal acknowledgment that he is the father [ikrar].  This becomes necessary when paternity cannot be determined by the first method.  If a child is born within the first 6 months of marriage, the formal acknowledgment of paternity overturns a suspicion of illegitimacy.  If the father remains silent, the accusation of illegitimacy stands.  Unknown paternity means unknown outside of acknowledgment.  If paternity is disproved, a man’s acknowledgment has no effect.  The proven illegitimacy of a child cannot be wiped away with a man’s acknowledgment of paternity; an illegitimate child will always remain illegitimate.  The acknowledgment becomes decisive only if paternity is unproved, not disproved.  Acknowledgment establishes a presumption of paternity in cases where paternity has not been disproved.  Three conditions must exist for acknowledgment to be valid:

·         The paternity of the child is not known or established beyond a doubt.

·         The child has not been proven to be the issue of illicit intercourse [zina].

·         The circumstances are such that they do not rebut the presumption of paternity (e.g.  there is no proof that the would-be father was out of the country during the child’s conception).

 

Guardianship [wilaya] Once parentage has been established, a legal parent-child relationship comes into effect, which incurs then the rights and responsibilities alluded to above.  These rights and responsibilities pertain up until the end of the child’s minority.  A child ceases to be a minor generally around the age of 15, although classical jurists put this at a much earlier age.  Once a child has reached this age, no one has the legal right any longer to function as his or her guardian or to claim custody of the child.  After the father, the next legal guardians in line will be based on the father’s immediate male relations.  However, for anyone to be a legal guardian [wali], they must:

1.       have attained puberty,

2.       be of sound mind, and

3.       be a Muslim.

 

Types of Guardianship There are different types of guardianship related to:

1)       the person of the child, which has to do with custody [hadana, which means nursing] over the child.  This involves exercising guardianship over the child itself.  The mother holds the responsibility for this type of guardianship.  Indeed, she has the right to it in that no one can deprive her of it unless she is somehow disqualified or remarries after the divorce of the parents.  This is her inalienable right.  She has the custody of a son until age 7, and a daughter until puberty, which makes her legally marriageable.  The father nonetheless exercises authority over the mother, and so the final word in matters of custody returns to the father when he so demands.  A woman may be disqualified to exercise custody in certain cases: 1) if she is a non-Muslim, she cannot claim a right to custody; 2) if she marries a man who is not related to the child but who is potentially marriageable to the child; 3) if she has been negligent of the child or unfaithful in her marriage.  If the mother dies or is disqualified, there is a legal order of who can claim custody for the child.  Female relatives of the child come first, such as the mother’s sister.  If there are no female relatives, the male relatives come next, with the father being first in line to claim custody. 

2)       the property of the child, which form of guardianship is dominated by the father.  This covers the same period for male and female children – until puberty.  While the mother is not the legal guardian of property, she may become de facto guardian of the child’s property simply because she looks after that property, but this is only so with the man’s permission.  The primary right to the child’s property remains with the man, although he is limited legally as to what he may do with it.  He is basically recognized as charged with protecting that property, not using it for his own benefit.  So, for example, he may not choose to sell the immovable property of his minor child, unless he is able to obtain twice the value for it, and this doubled income remains the property of the child as well; or if it is necessary to sell it in order to provide for the care of the child; or where the property is falling into decay or costs more to keep up than is feasible for the guardian.  The legal guardian may legally choose to sell the minor’s moveable property, but only in order to provide for the necessities of the child; again, not for the benefit of the guardian.

3)       the marital status of the child, which translates into the guardianship of compulsion or the so-called child-marriage.  This is guardianship by the father or some other male relative.  The father has the right to arrange a contractual marriage for his child.  Such a marriage cannot be consummated until after puberty, no matter how young the child was when contracted.  And due to the option of puberty, a female child, upon reaching puberty, may ask that the marriage contracted by her father be revoked.

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About George Ellington

Welcome. My name is George Ellington. Borrowed from my father, a name bestowed upon him when he immigrated to the United States well before I came along. Odd thing about possessing a borrowed identity – you end up spending countless years of your life seeking whatever truth may lie beneath the surface, the structure behind the façade. … I’m still looking. And along the way, I occasionally feel I have something to say, a poem to share, photos to show, a new song I am trying to learn on my ney. ... You know, the usual.
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