Mother’s child custody and the welfare of children : A critical analysis of Shari'ah based custody laws

This study attempts to answer a main question: Why must divorced mothers give up custody of their children if they remarry? This is one of the negative effects of divorce on mothers in many Islamic Societies: if remarrying, they lose custody of their children to the father, paternal grandmother, or maternal grandmother. Because most divorce cases nowadays take place within the first or second year of marriage, a large number of mothers are divorced in their twenties and thirties. Although those mothers are very young and remarrying is their basic human right, they are reluctant to do so lest they lose custody of their children. This situation has many negative social and psychological implications, given that God made women most capable of raising and taking care of children.

This study displays verses of the Quran and Hadith of Prophet Mohammed (Peace Be Upon Him), presenting his followers' narration of incidents, related to custody. It will also shed light on the opinions of well-known Islamic Scholars whose decisions form the basis of jurisprudence. The purpose of referring to these sources is an attempt to answer the question: Is the decision of custody transfer from the mother after her remarriage agreed upon in all the Islamic sources or is it controversial?

This study examines the welfare of children by prioritizing children's needs using the Shari'ah objective theory. It will also shed light briefly on the role of the mother and father in promoting children's mental health. It will cover the actual laws and policies related to family in the State of Qatar. The analysis of this study is relevant to most other Arab and Islamic countries referring to the same source of Shariah and relying on the same scholars in the majority of their rules. It concludes with a set of recommendations proposing the amendment of custody-related articles in the Qatar Family Law, giving divorced mothers the freedom to remarry without fearing to lose the custody of their children, as well as a set of processes in custody-related issues to determine the child's best interest.