Abstract:
The right of child custody is one of the important jurisprudential issues that faces initial disagreement in narrations. This disagreement, especially regarding child custody after the end of the breastfeeding period until the age of seven, has been the source of various fatwas, where adherents of each view consider their perspective to be derived from the literal meaning of the narrations. In this article, in addition to examining and criticizing these views, relying on the customary understanding of the Lawgiver's addresses and a precise explanation of the narrations of the issue, the view is strengthened that after the divorce of parents, the priority of child custody, both for girls and boys, until the age of seven belongs to the mother; the importance of this view lies in the fact that it is contrary to the famous view and, at the same time, consistent with the apparent evidence. The conditions of the person holding the right of custody, its determination at other age stages of the child, and also whether the right of custody is mandatory or non-mandatory are also pursued and explained in this article.
Machine summary:
In this article, in addition to examining and criticizing these views, by relying on the customary understanding of the Legislator's addresses and a precise explanation of the narrations of the issue, the view is strengthened that after the divorce of parents, the priority of child custody, both for girls and boys, until the age of seven belongs to the mother; the importance of this view lies in the fact that it is contrary to the famous view and, at the same time, is consistent with the literal meanings of the evidence.
Furthermore, Ibn Junayd, Sheikh Tusi in al-Khilaf and al-Mabsut, Ibn Barraj, and Kaydari, who have considered the custody of the child - both girl and boy - from the period after breastfeeding until seven years of age, to belong to the mother, have all spoken in the context of divorce and separation.
Furthermore, considering the proportionality between the ruling and its subject and the conflict between husbandly duties and custody, this right, even in the event of the father's death, is conditional upon the mother's non-marriage, and the narrations, even if they possess absoluteness, are diverted from the assumption of marriage.
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