Custody

[ucemzek]

A reply to Tobeor

Clarifying Ownership in therms of offspring  in the Quran

The quran uses words such as lakum (for you) and lahu (for him) in various verses in 2:233 which signify rights and responsibilities rhather than ownership. These responsibilities are financial responsibilities as a father and as a husband/ex- husband.

In the context of discussing lienage and parentage in the Quran the phrase "al mawludu lahu" is appropriate when referring to a child born to a male individual. The choice of phrase aligns with the gender and relationship of the parent. While "mawludun lahaa" would be appropriate when reffering to a child born to a female indvidual; this term has not been used in the Quran, as motherhood is an obvious matter and proof that the child belongs to her due to the gestation period and the act of physically giving birth (unless in the case of surrogacy). However when talking about breastfeeding it has used al walidah (meaning a woman that has recently given birth to a child or to a woman who has just become a mother) so the term al- mawludu lahu is used to refer to the father as a child born to him – the known man and not any other man. More than the term father, the term establishes the link between the father and the child and is thus likely to make the father aware of the presence of a third party that assumes particular significance in the process of divorce. The purpose behind focus on the elimination of harm and the observance of Ma'ruf, is the prevention of any words, deeds and actions likely to inflict harm on the mother, an the father, and the child.

As children are known by their fathers name, it is important to let this be known and this is mentioned in surah al ahzab 33:5 "Let your adopted children keep their family names. That is more just in the sight of Allah"... the 4th verse states that "nor did he make your adopted children to be your sons" so this is a proof that a child may live without his father and if the mother was to re-marry the child doesn't become the new husbands child -or takes his name but he remains as his biological fathers child. This is why the issue of concealing pregnany is absolutely prohibited in 2:228 not because the mother would fear the infant would end up staying with the father but to prevent any misshaps concerning who the childs father is – the intention behind hiding pregnancy by the Quran would also be to actually protect the woman from any hearsays of fahsha, and the intention behind the woman might be due to the fact that she is adament to leave the husband asap may be due to physical abuse, or to remarry quickly and pretend the child is the new husbands. All of these are prevented by this verse. This is why finalizing the pregnancy with the father beside is important; so everyone would be a witnes/ or to know to who the childs parents are, both of them, hence the use of lahu as stated in detail above.

(It would be a good reminder at this point to signify the importance of witnessing and testimony where any kind of matter involving a relationship is to begin such as;  fahsha during marriage (4:15) divorce (65:2), inheritance (5:106), contracts or transactions (2:282). In every verse where testimony is mentioned, it is either evidence that ensures justice in a legal case or a presumption that reveals the truth of the case. Apart from these clear verses, we can understand that other cases such as marriage and birth are to be known by 3rd parties. The birth example is explained above and marriage; although there isn't a direct verse stating it should be witnessed, in 24:33 a contract is mentioned and also all marriage cases are conditioned/bonded with maintenance.)


The verse "The women have rights similar to their obligations, according to the recognized norms. But the men will have a degree over them" – can be explained as; the women have a disadvantage due to bearing a child and childbirth so she is automatically connected to the father even if she does not want to be with him, the advantage has been given to the man to take them back before the final divorce; they have a rank above the women in taking them back and it's not to be taken alone in general as to say that men are above women in decision making like the custody of a child. Men have a degree above them (aleyhinne), And Allah is powerful and worthy of respect and judge, the  ultimate authority. To my understanding this is when they find out there is a pregnancy situation and this is the reason why they have a right to take them back (continuation of marriage) for the sake of the children. In Surah Ahzab 33:49 this is not the case as there is no pregnancy involved and even contact –  so the men can let them go just like that (again with an appropriate maintenance).

In 2:229 So the man does not own his wife- nor his children. A slave or those whom your right hand possesses are owned.

Where does Quran use possession / ownership (malik) by a human – to a human?

    • And worship Allah and associate nothing with Him, and to parents do good, and to relatives, orphans, the needy, the near neighbor, the far away neighbor, the companion at your side, the travler, and those whom your right hand posses. Indeed Allah does not like those who are self-deluding and boastful. 4:36

    • O you who have believed, let those whom your right hands possess and those who have not [yet] reached puberty among you ask permission of you [before entering] at three times: before the dawn prayer and when you put aside your clothing [for rest] at noon and after the night prayer ...... 24:58
     
    • 24:33, 4:25

In 2:233 the Holy Qur'an assigns responsibility for the provision of two things to the father during the breastfeeding period: rizq (maintenance, sustenance) and kiswa (clothing). (Please note the emphasis on finance here too). As the mother is unable to (or chooses not work) work during this difficult period she is not able to finance herself. Although the term rizq is translated as sufficient food, and kiswa as clothing it seems that rizq is not restricted to food alone but includes all the things that the mother requires during her breastfeeding period. Therefore, the father is obliged to provide the mother with all her requirements during the breastfeeding period after separation (and during marriage as his wife as stated in 4:34).

Provision of mother's needs during the breastfeeding period is referred to as wage in verse 6 of Surat al-Talaq; thus, it may be concluded that what is meant by the breastfeeding wages for the mother is the provision of her requirements during breastfeeding period as her time and energy is mostly directed to the newborn and her needs (also remembering the physical and mental hardship she faces) must be met by the childs father- and this is how the Quran protects the mothers. The wage that the father pays to his ex-wife for breastfeeding has to be so much as it provides her food,clothing and other needs while she is breastfeeding; such as help with he household. As men can not breastfeed women are providing rizq for the child for him and hence she is compensated for this. So to the question "Why is payment only specified for breastfeeding not for hundreds of other services like bathing, changing diapers, establishing a sleep routine etc" is because milk from the mother comes directly from her as a rizq, the other services can not be regarded in the same category. Only a mother can feed the baby (if there is milk from her) and no-one else/or with anything else as regarded as rizq paid for like cows milk or yogurt etc). If she can't breastfeed then the father pays someone else to breastfeed. After the breastfeeding period when the women and men are seperated, and now the child is grown, the mother can be of support too as she can work or by other means– and the man can give however much he can according to his status in 65:7.
The author states "the Quran discusses women taking what they possess as they leave the family (2/229). This implies that the family budget remains intact, and there is no division of debts. The Quran strongly implies that the family continues to exist, albeit with one less member"
In terms of assests yes there is no division and woman takes back what she owns/what has been given to her and  she can even give up whatever she chooses if she fears they might transgress. So in which cases could this happen that the woman would feel the need to let go of what she owns in terms of assest of course... This is something to think about. Also I'd like to point out verses 65:7 and 2:241 where the man continues to help if he can and 65:3 Allah is the provider.
The author thinking that verse 2:233 is a cue that the child belongs with the father (al mavludu lahu) is continued with this next verse 2:229; the mother taking the assets and  leaving just like that and the "family continuing to exist with one less member" – lays down the grounds of how clueless the author is about the relationship of a mother and her kids as; Allah mentions the seperation of child from the mother and state of her  in the Quran in the case of Moses. 28:7, " We inspired to Moses' mother: "Suckle him, and when you become fearful for him, then cast him off in the sea, and do not fear nor grieve. We will return him to you and We will make him of the messengers." 28:10 Moses' mother's heart became anxious, that she nearly revealed her identity. But We strengthened her heart, so that she would be of those who acknowledge. 28:13 Thus, We returned him to his mother, so that she may be pleased and not be saddened, and to let her know that God's promise is the truth. However, most of them do not know".  Also 17:23 "Be good to your parents; and should both or any one of them attain old age with you,..." is worth mentioning as there is no mention of a gender.

To my knowledge there is no mention of family in the conventional meaning of a nuclear family; a father and his children can be a family of their own and a mother and children can be a family of their own.  So the verse which stands out in this case is  4:1 "........... Be careful of (your duty to) Allah, by Whom you demand one of another (your rights), and (to) the ties of relationship; surely Allah ever watches over you."
25;74,64:14 are verses which includes partner (azwaj) and children (zurriyah and awlad)  and 'ehl' is mentioned in some verses such as 66:6 which can mean family. Let us remember Noah too and the verses 11:45-46 "Noah called on his Lord, and he said, "My Lord, my son is from my family (ehl), and your promise is the truth, and you are the Wisest of all Judges. He said, "O Noah, he is not from your family (ehl), he committed sin, so do not ask what you have no knowledge of. I advise you not to be of the ignorant."
The man is a qawwamun only in the case of a marriage because he is the qawwamun of the woman. The verse does not include children at all and strictly there to mention the ties between them. So therefore stating that a man is an integral member of the family is unjust – the woman is an integral member of the family also. The tie between the man and woman can be broken- and each will continue with their new lives. The man being the last person who can leave the family and when he does the family ending is nonsense as a man can leave the family as 66:5 "It may be that he would divorce you, then his Lord will substitute other wives in your place who are better than you; submitting, believing, dutiful, repentant, worshipping, devout, mature and youthful" states and other divorce ayahs; that usually the subject is the man divorcing/ending the bond.

[ucemzek]

Marriage & Divorce are bonded by Finance
The constitution of marriage is based upon 2 things – 1) the man and the woman are believers (2:221) and maintenance; where the man is obliged to give the woman her payment (ujurahunne) and here are the verses related to the latter condition; 4:4, 4:20, 4:24, 4:25, 4:34,4:127 33:50, 60:10, 65:6 and even after divorce for some time 2:240 and  there is no time limit here in 2:241.
Men are tagged as the "qawwamun" that is, the protectors and the maintainers of women, in the Qur'an. This is due to the maintenance responsibility imposed on men by Allah. This can be seen in Q4:34: "Men are in charge of women by what Allah has given one over the other and what they spend from their wealth". Therefore, men have a greater responsibility in supporting their families.
Qanitat, has been widely interpreted as implying "obedience" to the husband. In tandem with the narrow, rendering of qawwamun as "in charge of", this gives a meaning suggesting that a man is in charge of his wife, who must be obedient to him.
However, this rendering of the term qanitat is antithetical to the Qur'an's own frequent use of the term. Numerous verses of the Qur'an (e.g. 2:116; 3:17; 30:26; 33:31; 39:9, 66:5, 66:12) deploy this term. In all cases, the term is used exclusively in the sense of being "obedient to God" - not to any human being, or any other entity for that matter.
Therefore, the interpretation of the term qanitat here to mean "obedient (to her husband)" is departing from the meaning of the term as deployed by the Qur'an. The same meaning as applied throughout the Qur'an should of course apply here, so that the meaning is simply "obedience (to God)." Hafitha is often overlooked that the verse then goes on to ascribe to the woman, too, a duty of "guardianship" over that which God prescribes. The word used is hafitha, which literally means "custodian" or "guardian."
Thus, just as the man is duty-bound on behalf of God to "stand for", support and provide for his wife, the woman is in turn to act as his custodian and guardian on behalf of God. Thus, far from suggesting a form of one-sided patriarchy, the Qur'an establishes a framework of mutuality within marriage, through man and woman providing different forms of guardianship to each other, and overlapping fields of complementary authority by which they care for and protect each other.This Divine verse describes the man as qawwam (maintainer) and the woman as qanitah (obedient) and hafizatun lil-ghaib (preserver of the secret). So men are responsible for protection, supervision, provision of their (women's) necessities and maintaining them in other worldly affairs, as a wife, she has a right of maintenance from her husband during marriage contract and even after marriage contract during waiting period (iddah) and after divorce. In all worldly affairs, women are free from all liabilities, whereas men are duty bound to maintain them in worldly affairs.One purpose of this differentiation is to keep her safe from roughing out like men otherwise she can be a breadwinner too. Husband is the head of the family on the basis of reading of 4:34 and 2:228. This headship does not in any way confer "license of dictatorship or misuse. Misuse or non-discharge of this responsibility by husband does not prevent wife from resorting to other legal measures for enforcement of her rights which may include dissolution of marriage.  Everyone moves within the circle of rights and obligations. Men are responsible for the protection and care of women  and women are responsible for taking care of home and if they have children the children. 
If this is what we believe in then this status quo must remain after divorce too. As 4:34 is based around maintenance in terms of the husband – then after divorce this shall remain if the woman is in need (2:241). This verse discusses the financial provision for divorced women. It outlines that divorced women are entitled to a provision according to what is acceptable, and it is a duty upon those who do good. It emphasizes the importance of providing financial support to divorced women in a just and equitable manner. 2:240 addresses the issue of bequests in case of divorce. It mentions that divorced women should be provided with maintenance for a year without turning them out, but also allows them to leave the marriage or household in an acceptable manner. This verse highlights financial responsibilities within the context of divorce. 65:6-7 verses discuss the financial obligations of divorced husbands. They are instructed to provide for their divorced wives during the waiting period (Iddah). The verses emphasize the importance of providing for the women in a good and kind manner, according to their means.



So if we don't possess or own our children how does Quran guide us as a parent?

O believers! Do not let your wealth or your children divert you from the remembrance of Allah. For whoever does so, it is they who are the ˹true˺ losers 63:9

      O you who have believed, protect yourselves and your families from a Fire whose fuel is people and stones, over which are angels, harsh and severe; they do not disobey Allah in what He commands them but do what they are commanded. 66:6
     
      He is the One Who created you from a single soul, then from it made its spouse so he may find comfort in her. After he had been united with her, she carried a light burden that developed gradually. When it grew heavy, they prayed to Allah, their Lord, "If you grant us good offspring, we will certainly be grateful." But when He granted their descendants good offspring, they associated false gods in what He has given them. Exalted is Allah above what they associate ˹with Him˺! 7:189-190
     
      Lokman added,˺ "O my dear son! ˹Even˺ if a deed were the weight of a mustard seed—be it ˹hidden˺ in a rock or in the heavens or the earth—Allah will bring it forth. Surely Allah is Most Subtle, All-Aware. O my dear son! Establish prayer, encourage what is good and forbid what is evil, and endure patiently whatever befalls you. Surely this is a resolve to aspire to. "And do not turn your nose up to people, nor walk pridefully upon the earth. Surely Allah does not like whoever is arrogant, boastful.Be moderate in your pace. And lower your voice, for the ugliest of all voices is certainly the braying of donkeys." 31:16-19
     
      And We have enjoined upon man [care] for his parents. His mother carried him, [increasing her] in weakness upon weakness, and his weaning is in two years. Be grateful to Me and to your parents; to Me is the [final] destination. 31:14
     
      But if they endeavor to make you associate with Me that of which you have no knowledge, do not obey them but accompany them in [this] world with appropriate kindness and follow the way of those who turn back to Me [in repentance]. Then to Me will be your return, and I will inform you about what you used to do. 31:15
     
      And dutiful towards his parents, and he was neither an arrogant nor disobedient (Yahya - to Allah or to his parents). 19:14
      And dutiful to my mother, and made me not arrogant, unblest. (Isa) 19:32
     
      And We have enjoined upon man, to his parents, good treatment. His mother carried him with hardship and gave birth to him with hardship, and his gestation and weaning [period] is thirty months. [He grows] until, when he reaches maturity and reaches [the age of] forty years, he says, "My Lord, enable me to be grateful for Your favor which You have bestowed upon me and upon my parents and to work righteousness of which You will approve and make righteous for me my offspring. Indeed, I have repented to You, and indeed, I am of the Muslims." 46:15-18
     
These are some of the verses guiding parents with which values to bring their child up with. It is highly important to have these instilled not only with vocal reminder but being a model. This is what is important, and both the mother and the father whose relationship will forever be intact with their children and maybe with each other too as believers  (unless Quran says so in terms of shirq) should strive to bring their children up with the teachings of these verses and be a model – to my understanding this is what is important rahther than going over things which are not in the Quran i.e woman can leave without her children – man owns the children leaving the mother out of the equation completely etc.  May Allah increase our knowledge.
Let them live where you live, according to your means. And do not harass them to make their stay unbearable. If they are pregnant, then maintain them until they deliver. And if they nurse for you, compensate them, and consult together courteously. But if you fail to reach an agreement, then another woman will nurse ˹the child˺ for the father.
The verse 2:233 also shows that the Qur'an is trying to state that the parents should not try to harm each other by using their child as bait during and after divorce.
Father's harming the mother may be through such acts as emotional instigation of the mother by making her breastfeed their child without paying for her living expenses, depriving her of seeing and taking care of her child, taking the baby away from her in order to revenge her and leaving it with someone else; on the other hand, since the mother is not able to persecute the father directly, she tries to achieve her goal by using the baby as bait throughout one of the following ways. Through emotional provocation of the father making him to pay more for her breastfeeding the child; preventing the father from seeing his child; avoiding to breastfeed the baby and abandoning the child to its father. Obviously, in the above cases, the first one to be harmed is the child.
Let us remember 65:6 "take mutual councel together, according to ma'ruf" 4:35-36 And if you fear dissension between the two, send an arbitrator from his people and an arbitrator from her people. If they both desire reconciliation, Allah will cause it between them. Indeed, Allah is ever Knowing and Acquainted. As a believer it is a must that all affairs shall be solved and decided together by mutual consultation with the light of the Quran and the hukm received from the Quran 42:10, 4:59, 5:48 should be taken to court as mutual consent/ amicable divorce so Allah's command is taken.
9:71 The believers, both men and women, are allies of one another. They enjoin good, forbid evil, establish Prayer, pay Zakah, and obey Allah and His Messenger. Surely Allah will show mercy to them. Allah is All-Mighty, All-Wise.
42:38  "And those who have responded to their lord and established prayer and whose affair is [determined by] consultation among themselves, and from what We have provided them, they spend."
3:152
And Allah had certainly fulfilled His promise to you when you were killing the enemy by His permission until [the time] when you lost courage and fell to disputing about the order [given by the Prophet] and disobeyed after He had shown you that which you love. Among you are some who desire this world, and among you are some who desire the Hereafter. Then he turned you back from them [defeated] that He might test you. And He has already forgiven you, and Allah is the possessor of bounty for the believers.

[Tobeor]

Thank you for your reply ucemzek, even though it came 90 days after my post. It still has valuable contributions to make on this topic. For those interested in the original version of some parts in ucemzek's reply, I suggest visiting https://perennialvision.org/marriage-mutual, as it can provide more insight. I believe that well-known writing techniques, like following proper citation rules, can greatly benefit a fruitful discussion. I apologize for the 68-day delay in my response, and I hope you understand and forgive the delay.

I would like to discuss your citation of Moses' mother as support for giving custody to the mother. While I acknowledge the similarities, it appears that the story of Moses does not directly correlate with the crucial issue of custody. Additionally, it is well-known that the family of Moses did not strictly adhere to the Quran, for some chronological reasons. This logical mistake is addressed in verse 2:140. By using this flawed logic, one could also pick the story of Joseph and his father (around 12:96) to argue that custody should be given to the father. In general, this logic gives us unlimited freedom(similar to the concept of infinite dof in mechanics) and allows us to disregard the guidance of the Quran. When we choose to interpret stories instead of following the accurate rules in the Book, we may mistakenly believe that we are "following the Book," when we are actually following our desires (let's say the chapter 115). This idea is addressed in verses around 68:36. Despite these points, I appreciate your interest in the topic and thank you for giving me the opportunity to illustrate how desires can guide us, as I mentioned briefly in my earlier post.




Now, let's return to the original topic and focus on those who genuinely want to discover the Quran's precise guidance on custody. I would like to present a few points:

I have recently discovered the verse 33:5, which I believe could offer fundamental insights into the matter of custody. I would greatly appreciate hearing your thoughts on this issue. Although I have not yet undertaken a thorough analysis of the verse, my intuition, drawing from previous experience, tells me that it is a valuable treasure.

I had the opportunity to witness how modern law addresses the topic of custody and began following the process involved. Unfortunately, it has proven to be a disaster. The system is designed like a series of successive chemotherapy sessions, where one must endure multiple cycles lasting 3-4 years while still being legally considered 'married'. It cannot be compared to the simple, effective, healthy, and wise solution provided by the Quran. The 'modern' approach I witnessed may incorporate some aspects of Quranic ideas, but it falls short in terms of intelligence and healthiness, to say the least.

Another point I would like to highlight is the impact of verses like 7:16 on this specific topic. Let's specifically focus on the example of verse 65:6 which is translated as ' Lodge them [in a section] of where you dwell out of your means and do not harm them in order to oppress them. And if they should be pregnant, then spend on them until they give birth. And if they breastfeed for you, then give them their payment and confer(definition of the word: have discussions; exchange opinions) among yourselves in the acceptable way; but if you are in discord, then there may breastfeed for the father another woman.'
(Sahih International)

In this translation, the use of the word "confer" implies the importance of mutual consent. However, considering that this is a divorce scenario, it is likely that mutual consent may not always be practical. It is essential to note that in this verse, the mutual consent specifically applies to the matter of breastfeeding. The surrounding sentences support this interpretation. It is important for a clear understanding of the verse to not assume that mutual consent is required in every aspect of divorce.

Additionally, the verse mentions the phrase "acceptable way" In my humble opinion, considering other instances of the term "ma'ruf" in the Quran, it refers to "the way accepted by the Quran" particularly in relation to divorce-based verses found in Chapter 2 and 65, most likely.

Even more fascinatingly, I have discovered that a non-English translation of this verse provides a highly unique interpretation. It's part of my daily routine to listen to this translation through my Bluetooth earphones while being outside. To share it with you, I transcribed what I heard into Google Translate, and the result is:  '...If they breastfeed their children for you, reciprocate them and consult each other about the best decision to make regarding the child's future...' This interpretation brings a significant alteration to the verse, almost as if it could be considered as a part of a Quran v2!

You might assume (or perhaps wish) that this translation is not widely known, but let's examine a far more popular version:
'if they nurse your offspring [after the divorce has become final], give them their [due] recompense; and take counsel with one another in a fair manner [about the child's future].' 
(Muhammad Asad translation)
Here as well, although in parentheses, the focus is on the child's future rather than breastfeeding.

Another point to consider is the "modern" approaches. If you are interested in exploring them, I believe a valuable source is the Symposium on Comparative Custody Law, Summer 2005 (https://www.jstor.org/stable/i25740486) It provides detailed information on custody laws in numerous European countries such as England, Germany, Sweden, and Ireland, as well as some countries on other continents.

Here, you'll find that Iran, a country claiming to follow 'Islamic Law' (which includes more than just the Quran), awards custody (known as hizanat) to the mother for children under the age of 7 (https://www.jstor.org/stable/25740500). I wonder how they interpret these verses in order to justify such an interpretation. The Quran provides us with numerous examples of attempts made to alter the meanings of its verses(4:46, 5:13, 5:41), but I wouldn't mind an additional example. My speculation is that the key lies in the same verse: 65.6. In that verse, there is a phrase like 'And if they breastfeed for you', but I notice that in some translations, such as Asad's translation, this phrase appears as 'and if they nurse your offspring'. Although 'nurse' can mean breastfeeding, the term itself also carries other meanings, such as 'the act of caring'. In my humble opinion, substituting a specific term with a more general one while translating into other languages can open the door to misinterpretations. Is a similar strategy employed in the Persian language?   

Of course, misinterpretations are not an excuse for sincere followers who have access to the internet and therefere access to various corpuses (https://corpus.quran.com/wordbyword.jsp?chapter=65&verse=6). For everyone, including those who have internet connection problems, following the methodology introduced in 3:7 is essential: refer to the entire Quran for judgement. In relation to this specific topic, even if you only have a poor translation of 65:6, you can still refer to 2:333 and 2:240, which would trigger your curiosity and make you think, "Hmm, there seems to be a contradiction. I should renew my internet connection so that I can check a Quranic corpus to uncover the real meanings."

I dedicate this humble study to all parents who love their children, yet humbly acknowledge that their deepest affection is surpassed by the greater love that God, the author of the Quran, has for these same children.

Peace.

[good logic]

Peace all.
Often if I like  a discussion, I feel I need to thank those who took part and contributed for the benefit and research of the topic.
Thank you all for your effort.
I would like to add, if I may, an important point to dedicate this useful thread to the people who love Qoran- i.e love GOD the most- so that they work harder on the subject "Marriage" to avoid getting to the subject "custody".
When one follows Qoran, one needs GOD s help to persevere to follow the best path indicated and instructed by GOD to us in Qoran.

Working on the marriage is a challenge and the last resort is to break the marriage.So many other steps in Qoran to work at  marriage,so one should never come to this last resort.
However I know there are always exceptions, hence GOD completes His instructions for us.
Security and welfare of the child first  plus security and welfare of the mother and father. Fairness and justice I find to be the Qoran s theme.
Thank you again for your contributions.
GOD bless you all.
Peace