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Child custody and Islamic law

If you are a parent going through a divorce then you know that a large component of your case has related to your child and what sort of custody provisions will be included in your Final Decree of Divorce. Money issues aside, child custody disagreements are the likeliest cause of animosity and disagreement in a divorce. In the event that you and your spouse cannot come to an agreement on issues related to your child, a judge can intercede and apply Texas laws on child custody to your situation and its circumstances.

For most people in Texas, going through a divorce in our civil courts is the only step that you will need to take in order 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 in order to become divorced from your spouse in the eyes of God and of 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 rights in a divorce as prescribed by the religious texts of Islam.

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

Within Islamic law, there is a doctrine known as Hadana that instructs Muslims how to deal with issues regarding the physical custody of a child- 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 although the age at which this is done varies depending on what country you in around the world. In the United States, Texas included, the law does not distinguish or give preference to a parent based on their sex when it comes to possession/child custody issues.

Let’s examine specifically what the doctrine of Hadana has to say regarding the possession of a child. For starters, if a child is born out of marriage then if you are the child’s mother you would be able to have physical custody of your child if he is a male up to the child’s seventh birthday.

On the other hand, if your child is a girl then you would be entitled to physical custody of your daughter up until the age of puberty. Typically if your ex-husband were not able to take physical custody of your child at either age seven/the age of puberty, his relatives would be able to step in and take possession in his absence.

As the natural guardian of your child, your ex-husband holds all the cards in terms of physical custody of your child. He would have the sole right to determine whether your child can travel internationally by obtaining a passport, where he or she would go to school and other issues like this. In American divorces, parents will typically share in these rights and in many cases have equal say in the rights and duties of parenting a child after divorce.

You, as the mother of the child, can lose physical custody of the child before the aforementioned ages in a few different ways. For starters, if it is determined by an Imam (a religious leader within Islam) that you are untrustworthy as a parent then your physical custody rights to your child could be stripped.

Secondly, if it is determined that you are not competent to promote the religious faith of your child or to encourage their active following of Islam then your physical custody rights may be in jeopardy. Finally, you may lose custody rights to your child if you remarry from outside of your husband’s family during this time period before your child turns the age at which time he or she would go to live with their father.

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

Any agreement made between spouses in conjunction with a divorce in the Islamic faith is construed under general contract law by American civil law courts rather than as a religious document. As we discussed in yesterday’s blog post courts often times interpret these divorce agreements as akin to an American prenuptial agreement.

What we see happening with some frequency is 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 due to the fact that 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 present an argument that the law of the country where the agreement was signed should apply in this case. On the other hand, if the marriage was short it is often the wife who will present these arguments due to the fact that we would stand to retain from marriage would be far greater in an Islamic divorce agreement than under a civil court order.

Muslim wives can also present an argument that only is she entitled to her share of assets and property under a Muslim divorce agreement but is also able to seek a separate return under civil law provisions as well.

An example to illustrate the points we have raised thus far

Instead of merely reciting what the law is in Islam and how it could be applied by courts here in Texas and the United States as a whole, let’s use a hypothetical example to illustrate our points.

Suppose that within an Islamic divorce agreement you and your husband agreed to a payment of $15,000 from your husband to you as a part of your divorce. 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 agreement based on contract law alone and not on any theories based on Islam.

How can you ensure that this is an outcome that would occur in your situation? While I can’t tell you that there are surefire ways to do so, you could always videotape the agreement being signed in order to show that the agreement was freely and voluntarily entered into. These are general principles that aid in the enforceability of a contract in United States civil law and thus no analysis would be needed of your divorce agreement under the religious law of Islam.

If you discuss with your spouse the terms of your Islamic divorce agreement and negotiate with one another in good faith the terms you come up with for that agreement will likely be held by a court to be in good faith and generally will be enforceable. If any payments of money from your husband to you are deemed by a court to be unfair, out of line with civil law or are agreed to be the only remedy for you available then it is more unlikely for your agreement to be enforced by the court. If it is apparent that the Islamic marital agreement is the only remedy available to you then civil laws will be applied in order to allow you an opportunity to recover an equitable amount of money and/or property.

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

Thank you for your interest in the topic of Islamic divorce. I hope that you have been able to learn something over the past few days. While I am not Muslim, I did my best to research this topic as thoroughly as I was able to in order to provide you all with helpful information.

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

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