Child Custody and Islamic Law

For most people in Texas, going through a divorce in our civil courts is the only step you will need to take to dissolve your marriage and have orders set forth regarding your child. However, if you are also Muslim, you would need to take additional steps within the structure of your Islamic faith to become divorced from your spouse in the eyes of God and your religious community. Today’s blog post from the Law Office of Bryan Fagan, PLLC, will discuss this topic in detail. Specifically, we will begin by going over child custody in Islam amid a divorce as prescribed by Islam’s religious texts.

How does Islam treat child custody from the vantage point of a mother?

Within Islamic law, a doctrine known as Hadana instructs Muslims how to deal with issues regarding a child’s physical custody- what we in Texas may call possession of a child. Unlike in American civil law, this doctrine automatically grants physical custody of a child to the father. However, the age at which countries around the world implement this varies. In the United States, Texas included, the law does not distinguish or give preference to a parent based on their sex regarding possession/child custody issues.

Let’s explore the Hadana doctrine’s stance on child custody. If a child is born out of wedlock, the child’s mother can have physical custody of a boy until his seventh birthday. For a girl, the mother’s entitlement to physical custody extends until she reaches puberty. If the ex-husband cannot take physical custody of the child at age seven or puberty, his relatives may assume custody in his absence.

Your ex-husband, as the natural guardian, has complete control over your child’s physical custody. He can decide on international travel, schooling, and similar matters. In American divorces, parents usually share these rights and responsibilities equally.

As the child’s mother, you can lose physical custody before the specified ages in several ways. If an Imam considers you an untrustworthy parent, they can revoke your custody rights. Furthermore, if you’re deemed incapable of nurturing your child’s religious faith or encouraging their active involvement in Islam, custody may be jeopardized. Finally, marrying outside your husband’s family during this period before your child reaches the specified age can also result in losing custody rights.

Can an Islamic divorce agreement be enforced in American civil law courts?

American civil law courts interpret any agreement between spouses made in conjunction with an Islamic divorce under general contract law, rather than as a religious document. As discussed in yesterday’s blog post, courts often interpret these divorce agreements as akin to an American prenuptial agreement.

We see happening with some frequency that a husband who has agreed to a division of property and child custody within an Islamic divorce agreement will then attempt to have the divorce agreement upheld by a family law court. This is since his responsibilities to pay money for support are much less in a Muslim divorce agreement that he would be responsible for under an American family law order.

If the agreement was signed in another country, the husband could hire an attorney and argue that the law of the country where the contract was signed should apply in this case. On the other hand, if the marriage were short, the wife would often present these arguments because we would stand to retain from marriage would be far more significant in an Islamic divorce agreement than under a civil court order.

Muslim wives can also argue that they are entitled not only to their share of assets and property under a Muslim divorce agreement but can also seek a separate return under civil law provisions.

An example to illustrate the points we have raised thus far

Instead of simply reciting Islamic law and how courts in Texas and the United States may apply it, let’s use a hypothetical example to illustrate our points.

Suppose that you and your husband agreed to a payment of $15,000 from your husband to you as a part of your divorce within an Islamic divorce agreement. After your husband failed to pay you the agreed-to amount, you filed an enforcement suit in a Harris County family law court seeking to have the court enforce the Islamic divorce agreement. Your court could uphold the terms of the deal based on contract law alone and not on any theories based on Islam.

How can you ensure that this is an outcome in your situation? While I can’t tell you that there are surefire ways to do so, you could always videotape the signed agreement to show that the deal was freely and voluntarily entered into. These are general principles that aid in enforcing a contract in United States civil law. Thus, your divorce agreement under Islamic religious law would not require any analysis.

If you and your spouse discuss the terms of your Islamic divorce agreement and negotiate in good faith, the court is likely to uphold the agreement. However, if the court deems any monetary payments from your husband to you as unfair or not in line with civil law, the enforceability of the agreement becomes less likely. If it becomes evident that the Islamic marital contract is the sole recourse, civil laws will come into play to ensure you have an opportunity to recover a fair amount of money and property.

Questions on Islamic divorce and its effect on a civil divorce in Texas? Contact the Law Office of Bryan Fagan, PLLC

I appreciate your interest in the topic of Islamic divorce. I hope that you have learned something over the past few days. While I am not Muslim, I did my best to research this topic as thoroughly as possible to provide you with helpful information.

If you have any questions about this subject or any other family law, please do not hesitate to contact our office. We offer free of charge consultations with a licensed family law attorney six days a week.


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  12. An Introduction to Islamic Divorce and Marriage Contracts
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