Custody of Her Children
23-5-2004 | IslamWeb
Question:
My husband have been separated for couple years now we have kids together. About a year ago we begin to talk to each other on the phone at first i ask him if he had divorce me he said no so i believed him. We have beeh work out our problems one if the problem is he is married to a american woman that will not allow him to be with me that is the reason me and him had separated she had told him to leaven me and he did but now he say he is sorry for that.About one week ago he said that he remembered that he had said the words talaq on me i told him i don’t remember you telling me that he say he said them when i was not there so i said ok what now. He want me to give up custody if my kids to him or he will do something to hurt me. I love my kids and I don’t want to give them away. what should i do please help me.
Answer:
All perfect praise be to Allah, The Lord of the Worlds. I testify that there is none worthy of worship except Allah, and that Muhammad 
is His slave and Messenger.
The mother is the person who has more right to foster the children as she would be more affectionate to them. The children should stay with their mother until the age of seven. Then the son could choose to stay with his mother or with his father. But when the daughter reaches the age of seven, her father is more appropriate to foster her. This is of course if the parents are free from things that prevent from guardianship like dissoluteness.
If the mother remarries, then she loses the right to foster the children. Therefore, the father has the right to take the child if there is nobody more appropriate to foster him, like the maternal grandmother, or there is someone who can foster him but he/she gives up the right and assigns the father the right of custody of his child.
Anyway, all the matter should be referred to the Islamic courts of justice in the country you are living in. If there is none, then it should be referred to the Muslim scholars and people of knowledge who would deal with this matter. If you can not solve the problem or fear harm from him, you may consult the courts.
For more benefit on the custody of children and right of visiting them, please refer to Fataawa 326341, 86891, 87762, 88331, 89832, 182019, 213352, 82128, 341287, 84575, and 86053.
For more benefit on the sequence of relatives who have more right in the fostering of the children after their mother, please refer to Fataawa 90467 and 84618.
Allah knows best.