Shari’a laws say so…
8.0 - Child Custody Following Divorce
Under Shari’a, a father is the natural guardian (al waley) of his children’s persons and property. Shia doctrine also gives the child’s paternal grandfather joint guardianship.[83] According to Shari’a, a child’s paternal grandfather is his or her natural guardian after the father.[84] Under the laws of countries such as Kuwait , guardianship passes to the next relative on the father’s side if the father and paternal grandfather are unable to act as guardian.[85] Depending on local laws, a father may be able to transfer his power of attorney over his child to other family members. In custody abduction cases, a father brought into court may use this as a means of keeping the child in the custody of his relatives and he may claim that he lacks legal authority to return the child to its mother.
A mother generally has a right to physical, not legal, custody of her child until the child reaches the age of custodial transfer, at which time the child is returned to the physical custody of the father or the father’s family. The right to physical custody is not an absolute right in the sense that a mother or father who possesses physical custody may not prevent the other parent from seeing the child. While the parent with physical custody cannot be compelled to send the child to the other parent’s residence for visits, he or she must bring the child to a place where the other parent can see him or her.[86] Furthermore, in order to have physical custody, a parent must fulfill certain conditions. Firstly, the father or mother seeking custody must have reached majority and must be sane. He or she must also be capable of raising the child, looking after its interests, and protecting its physical and moral interests. Aside from these basic requirements, there are specific requirements based on the parent’s gender.[87] Since, by definition, Muslim fathers satisfy the specific requirements of a male custodian,[88] the following discussion will address only the requirements placed on a mother.
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